Brangwyn v South Warwickshire NHS Foundation Trust

For reasonable-adjustment purposes, a provision, criterion or practice must be an actual requirement, expectation or strong request imposed or intended to be applied. An employee’s perception that a task might be required, contrary to the employer’s assurances or instructions, is not itself a PCP. A job description can constitute a PCP, but its wording must be assessed with the employer’s actual instructions and dealings. A PCP need not already have been enforced before causing disadvantage. Employment tribunals should address the PCP, disadvantage and adjustment questions in sequence. The reasonableness of an employer’s conduct is ordinarily a question of fact, and appellate interference is difficult without legal error or perversity.

Mr Brangwyn, who was disabled by phobic anxiety concerning blood, injections and related ward stimuli, was employed as an occupational therapy technician in a hospital workshop. Following changes to his job descriptions and prolonged sickness absence, he was dismissed. The Employment Tribunal rejected his claims for failure to make reasonable adjustments, disability discrimination and unfair dismissal in a reserved judgment dated 2 January 2015.

The Employment Appeal Tribunal, presided over by Langstaff J, rejected challenges concerning the identification of the PCP and the adequacy or perversity of the Tribunal’s reasoning: UKEAT/0125/15/LA. The central issue before the Court of Appeal was whether the job descriptions themselves created a PCP, despite assurances about the duties actually required, and whether the findings on reasonable adjustments were legally sustainable.

1. Appeal dismissed. The PCP identified in the agreed list of issues was a requirement to go onto medical wards. It was not a PCP based on the Appellant’s perception that a written job description might permit or require such work. An agreed list of issues will generally limit the substantive hearing, although an Employment Tribunal may depart from it where necessary to discharge its duty to determine the case according to law and evidence. The Court applied Parekh v London Borough of Brent [2012] EWCA Civ 1630 and held that the appeal could not properly be decided on the new basis advanced in the Court of Appeal.
2. In any event, that argument would fail on the facts. A contractual clause or job description listing duties is capable of being a PCP, but the employer’s actual instructions and dealings must be considered. After learning of the disability, the Respondent made clear that the Appellant would not have to collect or return patients from their beds or use a hoist. The inaccurate job descriptions were deplorable, but they did not themselves impose those duties.
3. SSWP v Higgins [2014] ICR 341 was correctly decided: section 20(3) of the 2010 Act does not require a PCP to have been enforced before it causes disadvantage. It did not assist the Appellant because it concerned an actual requirement that would later be reapplied, rather than a mere perception of a possible requirement. Similarly, United First Partners Research v Carreras [2018] EWCA Civ 323 recognised expectations or strong requests short of compulsion, but did not extend the concept to the Appellant’s perception.
4. The Tribunal was right to approach the reasonable-adjustments issues sequentially, as explained in Environment Agency v Rowan [2008] IRLR 21 and Higgins. Since no relevant PCP was established, the questions of substantial disadvantage and reasonable steps did not arise.
5. The finding that it was not reasonable to guarantee that the Appellant would never enter any part of the ward was a finding of fact. The Tribunal balanced the service requirements against the need to avoid bed-bay areas and other likely triggers. The perversity challenge therefore failed.

1. Court of Appeal (Civil Division): appeal dismissed. [2018] EWCA Civ 2235
2. Employment Appeal Tribunal: Langstaff J rejected the two grounds of appeal concerning the PCP and reasonable adjustments. UKEAT/0125/15/LA
3. Employment Tribunal: rejected the claims for failure to make reasonable adjustments, disability discrimination and unfair dismissal in its reserved judgment dated 2 January 2015.