Lamb v The Business Academy Bexley

For a reasonable-adjustments claim, the tribunal must identify the provision, criterion or practice (PCP) actually relied upon. It must then assess the disadvantage caused to the disabled person by comparison with persons who are not disabled.

A repeated delay in providing a grievance outcome may be a PCP. The fact that an employee is not physically compelled to return to work does not prevent a requirement or practice from operating as alleged. Where a tribunal recasts a pleaded PCP into a narrower, one-off requirement, it may fail to address both the relevant disadvantage and the proposed adjustment. Its decision will then be vitiated.

The Claimant, a teacher, was absent with reactive depression and later PTSD after making allegations of bullying. An initial grievance investigation was set aside and a further investigation and appeal process did not produce final outcomes until 2013.

She brought, among other claims, a reasonable-adjustments claim. The pleaded PCP was a requirement to return to work from September 2012 to December 2013 without a proper and fair investigation of her grievances. The Employment Tribunal rejected that claim, treating the PCP as a requirement to return in September 2012 without a proper investigation.

The Claimant appealed on the ground that the Tribunal had wrongly reformulated her PCP and had not properly addressed disability-related disadvantage, knowledge, reasonable adjustment, or time.

1. Appeal allowed. The Employment Tribunal impermissibly recast the PCP. The Claimant’s case concerned a requirement or practice operating over an extended period, including the setting aside of the first report and delay in obtaining a fair and proper grievance outcome. It did not concern only a one-off requirement to return in September 2012.

2. A PCP is construed broadly. It may include an informal practice or arrangement, and ordinarily has an element of repetition. The asserted practice of delay in delivering a timely grievance outcome was capable of being a PCP. Delay was repeated in both grievance investigations and in the appeal process. The Respondent remained responsible for the process even if the Claimant contributed to part of the delay.

3. The Tribunal’s narrower formulation led it to disregard whether delay was part of a fair and proper investigation. It therefore failed to assess whether the actual PCP operated more harshly on the Claimant because of her mental-health disability, by exacerbating her condition or making a return to work harder. If so, the duty under section 20 of the Equality Act 2010 would be engaged.

4. The conclusions on substantial disadvantage could not stand. The Tribunal must make positive findings about the nature and extent of the disadvantage, the employer’s knowledge of it, and the reasonableness of the proposed adjustment. Those matters are interconnected.

5. The time point was not inevitably fatal. A proper just-and-equitable assessment required consideration of the reasons for delay, prejudice and the balance of hardship, including the Claimant’s mental-health disability and her attempts to resolve matters so that she could return to work.

6. The reasonable-adjustments claim was remitted to a fresh Employment Tribunal. Strong adverse findings made by the original Tribunal meant that a fresh tribunal best served the overriding objective.

• Employment Appeal Tribunal: allowed the Claimant’s appeal and remitted the section 20 reasonable-adjustments claim to a fresh Employment Tribunal.
• Employment Tribunal: rejected the reasonable-adjustments claim in Reasons sent to the parties on 21 April 2015.