Broma v Bakkavor Foods Ltd (t/a Bakkavor Desserts Highbridge)

Under section 20(3) of the Equality Act 2010, whether a proposed adjustment is reasonable depends on all the circumstances. The effectiveness of the step in preventing the substantial disadvantage is a relevant factor, but an adjustment need not be wholly effective before it can be reasonable.

An Employment Tribunal may assess practicability, health and safety, operational impact and economic viability as part of that multifactorial exercise. Its conclusion will not be disturbed absent a proper basis to challenge its findings of fact. Case-management decisions concerning the conduct and duration of cross-examination likewise fall within the Tribunal’s broad discretion, subject to fairness.

The Claimant, a production operative with a back disability, brought claims of unfair dismissal and disability discrimination. She alleged, among other matters, that the Respondent had failed to make reasonable adjustments by allowing her to sit while working or by providing a chair on the factory floor.

The Employment Tribunal at Bristol dismissed the claims. It found that seating was impracticable and inconsistent with health and safety and efficient production. It also found that a chair would not enable the Claimant to undertake a full 12-hour shift and that the alternative arrangement was not economically viable.

On appeal, the Claimant challenged those findings and contended that the Tribunal had wrongly required an adjustment to be wholly effective. She also alleged that her cross-examination of the Respondent’s principal witness had been unfairly curtailed.

1. Appeal dismissed. The ambiguity in the earlier Rule 3(10) order was resolved in the Claimant’s favour. The EAT therefore considered the cross-examination ground as well as the two reasonable-adjustment grounds.

2. The EAT preferred the Employment Tribunal’s account that the Claimant had cross-examined the night manager for about four and a half hours, rather than two and a half hours. The Tribunal had allowed for the Claimant’s lack of representation and need for an interpreter, and had sought to help her focus on relevant issues. Its decision to end cross-examination after repeated guidance was a proper exercise of its broad case-management discretion and caused no unfairness.

3. For the reasonable-adjustments claim, the governing question under section 20(3) of the Equality Act 2010 was whether the Respondent had failed to take steps which it was reasonable to take to avoid the substantial disadvantage. The Tribunal’s finding that a chair at the production line was impracticable rested on accepted evidence about restricted gangway space, obstruction, safety, the design of the lines and operational requirements. The absence of documentary evidence, and the Tribunal’s failure expressly to mention photographs, did not prevent it from accepting that oral evidence. There was no basis for a perversity challenge.

4. The Tribunal did not apply a rule that an adjustment must be wholly effective. The effectiveness of a proposed step was a relevant, but not decisive, consideration. The Tribunal permissibly treated the limited benefit of seating as one factor alongside practicability and economic viability. Its overall multifactorial assessment was supported by the evidence and correctly applied the broad statutory test.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal on 28 June 2018.
• Employment Tribunal at Bristol: dismissed the claims for unfair dismissal and disability discrimination in a decision sent to the parties on 2 June 2017.