Reid v London Borough of Lewisham & Anor

In a disability-related dismissal case, Health and Safety Executive v Cadman [2004] EWCA Civ 1317 does not permit a tribunal assessing justification to rely on events after dismissal. It establishes only that an employer may advance an objective justification that was not consciously held when it adopted the measure. Justification under section 15 requires a balancing exercise. It is not decided by asking whether a proposed adjustment would probably have produced a return to work.

An attendance PCP does not give rise to a reasonable-adjustment claim where it was never applied to the employee. Mediation or reconciliation is not, without more, an adjustment to an attendance requirement of the kind considered in Griffiths v Secretary of State for Work and Pensions [2017] ICR 160. A Polkey assessment must give adequate and coherent reasons for the percentage chance of a fair dismissal.

The claimant, a part-time music teacher, was absent for about 14 months with anxiety and depression. He was dismissed for capability after the school treated dismissal as necessary before considering medical redeployment. His internal appeal failed.

The Employment Tribunal held that the dismissal was unfair because the respondent had not properly obtained updated occupational-health advice or addressed reconciliation capable of facilitating a return to work. It dismissed the reasonable-adjustment claim and the claim for discrimination arising from disability. It assessed a 50% prospect that a fair procedure would still have resulted in dismissal under Polkey.

The claimant appealed the dismissal of the disability claims. The respondents cross-appealed the unfair-dismissal and Polkey findings. The central issues were the proper PCP, justification for disability-related dismissal, and whether the Tribunal had adequately reasoned its Polkey assessment.

1. Appeal allowed in part and cross-appeal allowed in part. The Employment Appeal Tribunal upheld the finding that the dismissal was unfair and dismissed the claimant's challenge to the reasonable-adjustment claim. It set aside the determination that the dismissal was justified under section 15 of the Equality Act 2010, and the Polkey assessment.

2. The attendance PCP was not applied to the claimant. His prolonged complete absence, rather than compliance with a 97% attendance expectation or an attendance-management threshold, led to the capability process. He therefore suffered no substantial disadvantage from that PCP. Further, mediation or reconciliation was not an adjustment to an attendance requirement of the type discussed in Griffiths v Secretary of State for Work and Pensions [2017] ICR 160.

3. The Tribunal misconstrued Health and Safety Executive v Cadman [2004] EWCA Civ 1317. That authority permits an employer to advance a justification not contemporaneously considered when the measure was adopted. It does not make post-dismissal events material to the objective proportionality assessment. The Tribunal also erred by treating the likelihood that reconciliation and updated medical evidence would produce a return to work as a balance-of-probabilities issue. Justification required a critical balancing exercise between the employer's need and the discriminatory impact.

4. The Tribunal's unfair-dismissal conclusion was sustainable. It had found that dismissal was decided before proper consultation, and that the appeal panel failed to obtain updated occupational-health evidence despite the claimant's asserted fitness to return. It also failed to engage with reconciliation as a means of clearing the way for return to work. Those findings adequately explained procedural unfairness.

5. The Polkey reasons were inadequate. The Tribunal's conclusion that reconciliation would probably not secure a foreseeable return to work could not readily be reconciled with its later assessment of a 50% chance of return. Its qualified assessment of no more than 50% required fuller reasoning in light of the findings against successful reconciliation. The section 15 justification issue and the Polkey issue were remitted to the same Tribunal, if available.

• Employment Appeal Tribunal: The claimant's appeal succeeded on the section 15 justification issue. The respondents' cross-appeal succeeded on the Polkey issue. Those issues were remitted. The challenge to the reasonable-adjustment decision and the challenge to the finding of unfair dismissal were dismissed.
• Employment Tribunal, London South: Held the capability dismissal unfair, dismissed the claims under sections 15, 20 and 21 of the Equality Act 2010, and made a 50% Polkey assessment. No citation was stated.