Pulman v Merthyr Tydfil College Ltd

For an employment reasonable-adjustments claim, the relevant duty concerns the individual disabled employee. A tribunal must not apply the service-provider requirement that a provision, criterion or practice affect disabled persons generally.

Claims under sections 15 and 20 of the Equality Act 2010 require separate statutory analysis. Justification under section 15 and reasonableness under section 20 may reach the same result on particular facts, but neither test should be treated as a substitute for the other.

A tribunal must give adequate reasons when rejecting proposed adjustments that could enable a return to work. Where the reasons leave material issues unresolved, an appellate tribunal may stay the appeal and seek clarification under the Burns/Barke procedure before deciding the appeal.

The Claimant, a plastering lecturer with depression, had been absent from work since January 2014. He alleged that the Respondent required him to return to the same role, department and management structure, and failed to make reasonable adjustments to address his working relationship with his line manager and colleague.

Following dismissal for capability in February 2015, he brought claims for unfair dismissal, discrimination arising from disability under section 15, and failure to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010. The Employment Tribunal at Cardiff rejected all claims in a decision dated 17 March 2016.

On appeal, the central issues were whether the Tribunal had correctly analysed the statutory claims and whether it had given adequate reasons for rejecting proposed mediation and informal meetings as reasonable adjustments.

1. The appeal was stayed and the matter remitted to the Employment Tribunal for further reasons under the Burns/Barke procedure. The Tribunal had made an error in holding that there was no relevant PCP because it affected only the Claimant rather than disabled persons generally. That requirement applies in service-provider cases, not employment cases. The error was not alone material because the Tribunal also considered the claim on the assumption that a PCP had been imposed.

2. The Tribunal’s general method of first making proportionality findings and then fitting them into sections 15 and 20 was perilous. The statutory elements of each claim should be applied separately. A failure to make a reasonable adjustment that would enable an employee to remain in work may render a dismissal unjustified under section 15, but the converse does not necessarily follow. Section 15 uses proportionality and section 20 uses reasonableness; the tests need not always produce the same result.

3. On the particular long-term sickness facts, that analytical error was not material. Subject to the adequacy of its factual reasoning, the Tribunal’s findings could support the same outcome under each provision.

4. However, the Tribunal gave inadequate reasons for rejecting mediation with the Claimant’s line manager as a reasonable adjustment. It did not explain why mediation with that manager would not assist even if the other colleague would not participate. It also failed adequately to explain why an informal meeting or meetings, short of mediation, were not a reasonable adjustment.

5. The Tribunal was directed to clarify matters including when the line manager became willing to mediate, whether the employer had overlooked that possibility, whether the other colleague’s opposition was final, and why informal reintegration meetings were not reasonable. The perversity grounds and the unfair-dismissal ground were deferred, since they were closely bound up with those unresolved issues.

• Employment Appeal Tribunal: Appeal stayed and remitted for clarification and further reasons under the Burns/Barke procedure.
• Employment Tribunal at Cardiff: By a reserved judgment dated 17 March 2016, dismissed claims for unfair dismissal and disability discrimination.