Nottingham City Homes Ltd v Brittain

An employer cannot rely on its own failure to obtain adequate medical evidence when assessing its duty to make reasonable adjustments. Compliance is assessed by reference both to what the employer knew and to what reasonable enquiries ought to have revealed.

The reasonable-adjustments inquiry is distinct from justification under section 15 of the Equality Act 2010. Where dismissal because of matters arising from disability is established, the employer must prove that it was proportionate. A tribunal may find that burden unmet where the employer dismissed without sufficient, relevant and current medical advice about a return to work with adjustments.

The employer dismissed a disabled employee on ill-health retirement terms after medical evidence had principally been obtained for pension purposes. The Employment Tribunal upheld claims for discrimination arising from disability under section 15 and failure to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010.

The employer appealed. It contended that the Tribunal had no evidential basis, and gave inadequate reasons, for finding that the employee could have returned on a phased basis with adjustments between April and June 2016. It also challenged the finding that dismissal was not a proportionate means of achieving its stated legitimate aim.

1. Ground 1 was permitted to proceed to a Full Hearing. The Employment Appeal Tribunal held that an employer cannot benefit from failing to obtain evidence about whether a disabled employee could return to work with reasonable adjustments. Following Doran v Department of Work and Pensions UKEATS/0017/14, compliance with the adjustments duty depends on what the employer knew and what it ought reasonably to have known through proper enquiries.

   The Tribunal had been entitled to find that the employer lacked sufficient medical evidence when it dismissed the employee. Most of the medical evidence had been sought to determine entitlement to ill-health retirement, rather than whether adjustments could facilitate a return to work. The employer had also not obtained the recommended three-month review.

   However, it was arguable that the evidence did not support, and the Tribunal had insufficiently explained, its specific finding that the employee would have been fit for a phased return with adjustments between April and June 2016. That finding was central to the conclusion that the duty under sections 20 and 21 had arisen. The appeal on that issue therefore proceeded to a Full Hearing.

2. Ground 2 was dismissed. The legal tests under sections 21 and 15 are materially different, although they arise from overlapping facts. For the section 15 claim, once unfavourable treatment because of something arising from disability was established, the employer bore the burden under section 15(1)(b) of showing that dismissal was a proportionate means of achieving a legitimate aim.

   The Tribunal was entitled to find that the employer had dismissed without making proper and current enquiries about whether reasonable adjustments would enable a return to work. It could therefore conclude that dismissal was not proportionate. The issue of whether the duty to make adjustments had in fact been triggered did not undermine that separate justification finding.

• Employment Appeal Tribunal: Ground 1, concerning the finding under sections 20 and 21 of the Equality Act 2010, was permitted to proceed to a Full Hearing. Ground 2, challenging the section 15 finding, was dismissed.
• Employment Tribunal: In reasons sent on 7 September 2017, the Tribunal upheld claims for discrimination arising from disability under section 15 and failure to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010.