Wieclawski v London Underground Ltd

Whether an employer knew, or could reasonably have been expected to know, of an employee’s disability is a question of fact. An appellate tribunal may interfere only where the Employment Tribunal’s conclusion was not reasonably open on the evidence.

A proposed reasonable adjustment must be capable of avoiding the relevant disadvantage and be reasonable in the circumstances. Where medical evidence has already been considered as mitigation, an adjournment for further occupational-health input serves no purpose if it could only lead to deferring a sanction which remains reasonably necessary, particularly in a safety-critical role.

The claimant, a train operative, committed three serious safety breaches on one day while suffering severe grief following two bereavements. He was summarily dismissed. On internal appeal, the respondent reduced the sanction to summary dismissal suspended for 52 weeks and referred him to Occupational Health.

The Employment Tribunal dismissed claims including disability discrimination and failure to make reasonable adjustments. It held that the respondent lacked actual or constructive knowledge of disability and, in any event, that an adjustment involving no sanction was not reasonable.

The claimant appealed on two connected grounds: that the Tribunal’s finding on knowledge was perverse, and that it should have held that the internal appeal ought to have been adjourned for an Occupational Health opinion.

1. Appeal dismissed. The question whether the respondent knew, or could reasonably have been expected to know, that the claimant was disabled was one of fact. Applying Jennings v Barts and the London NHS Trust, the Employment Appeal Tribunal could not substitute its own view unless no reasonable Tribunal could have reached the conclusion made.

   The medical material at the internal-appeal stage contained indications of depression and psychological impact. It could have supported a finding of knowledge. However, it also contained evidence that the claimant could function normally and undertake familiar tasks. The Tribunal’s conclusion that the respondent lacked actual or constructive knowledge was therefore just open to it, although the EAT judge would probably have reached a different factual conclusion.

2. In any event, the reasonable-adjustments claim failed independently. The adjournment proposal had not been clearly advanced in the agreed issues or written submissions. The Tribunal had nevertheless recorded the suggestion of postponement and referral to Occupational Health. It had not ignored the point.

3. An adjournment for an Occupational Health referral would be meaningful only if it could reasonably lead to a different penalty. The appeal officer had already considered medical evidence, treated it as mitigation and reduced summary dismissal to a suspended dismissal. The Tribunal was entitled to find that no immediate sanction was not a reasonable adjustment in a safety-critical environment. Further delay would not avoid the relevant disadvantage or serve a reasonable purpose, because a sanction remained necessary.

• Employment Appeal Tribunal: Appeal dismissed.
• Employment Tribunal at London (Central): Following a hearing from 25 to 29 April 2016, dismissed all claims in a unanimous judgment dated 27 July 2016.
• Internal appeal: The respondent reduced summary dismissal to summary dismissal suspended for 52 weeks and made an Occupational Health referral.