Bell v RJA (UK) Ltd

An Employment Tribunal may properly characterise the reason for dismissal as conduct where it accepts that the employer treated the relevant failures as conduct, even though the behaviour might also be capable of being analysed as capability.

A procedural irregularity in an internal appeal does not necessarily make a dismissal unfair. Fairness remains an overall assessment. Under Equality Act 2010 section 15, the tribunal must determine whether the unfavourable treatment was because of something arising from disability. It may reject the asserted causal link on the facts. A tribunal need not mechanically recite the two-stage burden of proof where its findings have directly resolved the real issue.

For reasonable adjustments, hypothetical comparators should perform the claimant's duties on equivalent terms.

The claimant, a security officer, was dismissed following alleged compliance failures, complaints about his treatment of colleagues, and a live final written warning. He alleged unfair dismissal, discrimination arising from disability, and failure to make reasonable adjustments.

The Employment Tribunal at Watford dismissed all claims. It found that the dismissal was for conduct, that the asserted compliance failures did not arise from disability, and that no reasonable adjustment claim was made out. The claimant appealed on the characterisation and fairness of the dismissal, contributory conduct and Polkey, disability discrimination, and reasonable adjustments.

The central issues were whether the Tribunal had erred in its findings on the reason and fairness of dismissal, disability-related causation, and the appropriate comparator for reasonable adjustments.

1. Appeal dismissed. The Employment Tribunal's decision was properly construed as finding that the dismissal was fair and that all claims failed. Its observations on 100% contributory fault and a 100% Polkey reduction were alternative and obiter.

2. The Tribunal was entitled to find that the employer's interrelated reasons—mistreatment of colleagues, compliance failures, and the final warning—were conduct reasons. Conduct and capability can overlap. The Tribunal could instead have treated the case as involving mixed reasons and identified a principal reason, but it was not perverse to characterise all the relevant reasons as conduct. Its findings adequately explained why the equipment-checking errors were not caused by disability.

3. The procedural irregularity arising from Mrs Griffin's participation in the appeal did not necessarily taint the dismissal. The Tribunal had found the investigation reasonable and was entitled, on an overall assessment, to hold that the irregularity was not fatal to fairness. It was not required to address every submission separately. The Appeal Tribunal rejected the proposition that an unfair appeal can never matter where the initial disciplinary process is sound.

4. For Equality Act 2010 section 15, the Tribunal was entitled to reject a causal connection between disability or its asserted effects and the compliance failures. Its findings resolved the real causation question. The absence of an express staged analysis under section 136 did not itself amount to an error of law.

5. The reasonable-adjustments finding stood. Read in context, the Tribunal's reference to non-disabled persons concerned hypothetical comparators performing the same duties on the same terms. Its factual finding that the claimant would not have accepted an occupational-health assessment had an adequate evidential basis.

• Employment Appeal Tribunal: dismissed the claimant's appeal and upheld the dismissal of all claims: [2017] UKEAT 0015_17_1312.
• Employment Tribunal, Watford: following a hearing from 27 to 29 April 2016, dismissed the claims for unfair dismissal, discrimination arising from disability, and reasonable adjustments. The decision was sent on 29 June 2016.