Lowmoore Nursing Home Ltd v Smith (Debarred)

When deciding whether an Employment Tribunal determined a reasonable-adjustments claim on an unpleaded basis, its Reasons must be read fairly and as a whole. An isolated phrase cannot establish that the Tribunal substituted a different substantial disadvantage for the one advanced by the claimant.

A complaint about heavy lifting may encompass the physical demands of operating lifting equipment and supporting, turning and moving patients. Where that is the proper reading of the evidence and pleading, the Tribunal does not err by treating those demands as part of the pleaded disadvantage under section 20 of the Equality Act 2010.

The claimant, a disabled careworker with paroxysmal tachycardia, resigned after being required to move from the Oak unit to the Silverbirch unit of the employer's care home. She contended that the physical demands of work on Silverbirch would exacerbate her condition.

The Employment Tribunal upheld claims concerning reasonable adjustments and constructive dismissal. It found that the employer could have allowed the claimant to remain on Oak or offered a trial period on Silverbirch, and that the use of absence-monitoring points also disadvantaged her.

The employer appealed. It argued that the Tribunal had wrongly decided the reasonable-adjustments claim by reference to general physical exertion rather than the pleaded complaint of heavy lifting. The central issue was whether the Tribunal had adopted a different substantial disadvantage from that raised with the employer and pleaded in the proceedings.

1. Appeal dismissed. The Employment Tribunal did not determine the reasonable-adjustments claim on a basis different from the claimant's complaint or her Further and Better Particulars. Its decision under section 20 of the Equality Act 2010 therefore stood, as did the consequential finding of constructive dismissal.

2. The employer's argument depended on isolating the words “general physical exertion” from the Tribunal's findings. Those words had to be read in their immediate context. The Tribunal had found that the claimant's concern was the exertion involved in moving and operating lifting equipment, supporting patients' dead weight, and physically turning them. Those matters were part of the practical demands of lifting and moving patients, not a newly formulated complaint about general work.

3. The Tribunal's finding that mechanical aids were available did not answer the claimant's case. Her evidence, which the Tribunal was entitled to prefer, was that the aids had to be moved regularly, were often in use, and did not remove the concentrated physical demands of caring for the less mobile patients on Silverbirch.

4. The claimant could not fairly be criticised for failing to give a more detailed answer to the employer's assertion that lifting equipment eliminated the problem. The manager had refused a further meeting, and the grievance process had not investigated how the equipment operated in practice. In any event, the Tribunal had expressly addressed the pleaded case and had not embarked on an unpleaded inquiry.

5. Although an inadequate-reasons challenge might have been available, no point under Meek v City of Birmingham District Council [1987] IRLR 250 CA was included in the amended grounds or advanced at the hearing.

• Employment Appeal Tribunal: Dismissed the employer's appeal from the reasonable-adjustments and constructive-dismissal findings.
• Employment Tribunal: In a judgment sent to the parties on 8 April 2015, upheld the claimant's reasonable-adjustments claim under section 20 of the Equality Act 2010 and found that she had been unfairly constructively dismissed.