County Durham and Darlington NHS Foundation Trust v Jackson & Anor

Where more than one person owes the duty to make reasonable adjustments, each person’s liability must be assessed separately. The tribunal must identify that respondent’s PCP, the resulting disadvantage, and practical steps which that respondent had legal power and practical ability to take.

The statutory duty is not a free-standing duty to investigate or risk-assess possible adjustments. A deficient investigation may be evidence that a reasonable adjustment was missed, but it cannot itself establish breach. The duty under Equality Act 2010 must therefore not be imposed by treating separate NHS bodies, regulators and trusts as a single entity.

Dr Jackson, a trainee anaesthetist employed by the Trust and trained under arrangements administered by Health Education England (HEE), developed a severe latex allergy. It was accepted to be a disability. She alleged that HEE and the Trust failed to make reasonable adjustments which would have enabled her to continue her work and training.

The Employment Tribunal upheld the reasonable-adjustments claims against both bodies. It also found that HEE had discriminated contrary to section 15 of the Equality Act 2010 and that the Trust had constructively dismissed her unfairly. HEE and the Trust appealed. The central issue was whether the Tribunal had failed to distinguish the legal functions, powers and responsibilities of the two respondents when finding breach of the reasonable-adjustments duty.

1. The appeals were allowed in respect of the reasonable-adjustments, section 15 and unfair-dismissal claims. The Tribunal’s decision on reasonable adjustments could not stand.

2. A claim under section 20 required separate analysis of each respondent. The disabled person had to identify that respondent’s PCP, the substantial disadvantage caused by it, and at least the broad nature of a step with some prospect of avoiding the disadvantage. Once such a potential adjustment was identified, the respondent had to show that it was not reasonable. Reasonableness included whether the practical step was within that respondent’s legal power.

3. The Employment Tribunal had instead treated the NHS as a single entity. It imposed liability on HEE and the Trust without separately considering their positions. It treated them as able to provide latex-free work or training, or alter examination and specialty-transfer requirements, despite those matters being outside one or both respondents’ control.

4. A failure to make enquiries or conduct a proper risk assessment was not itself a breach of the duty. It could have evidential significance if a proper assessment would have identified an adjustment which should reasonably have been made. Nor could failures by host trusts, Royal Colleges or the GMC to make informed decisions establish the respondents’ statutory liability.

5. The finding of unfair constructive dismissal was expressly dependent on the flawed reasonable-adjustments finding and therefore also fell away. HEE’s letter of 6 November 2014 could amount to unfavourable treatment under section 15; section 15 did not require an unfavourable decision. However, the proportionality issue required reconsideration in light of the conclusions on reasonable adjustments.

6. The Employment Appeal Tribunal would hear further submissions on the appropriate disposal, including the issues to be remitted and the tribunal to which they should be remitted.

• Employment Appeal Tribunal: allowed HEE’s and the Trust’s appeals against the Employment Tribunal’s findings on reasonable adjustments, section 15 discrimination and unfair constructive dismissal.
• Employment Tribunal, North Shields: in a judgment sent to the parties on 8 November 2016, upheld the reasonable-adjustments claims against both respondents, the section 15 claim against HEE, and the constructive-unfair-dismissal claim against the Trust.