Simpson v. Secretary of State for Justice

Where a disabled employee is subject to a PCP causing substantial disadvantage, the duty under Equality Act 2010 requires objectively reasonable steps to avoid that disadvantage. An Employment Tribunal must address material parts of the pleaded reasonable-adjustments case, including alleged earlier failures which may affect later events and a constructive-dismissal claim.

An employee’s preferred adjustment is not decisive. However, the likely effect of a proposed role on that employee’s disability, and the availability of a less disadvantageous alternative, may be relevant to the objective assessment of reasonableness.

The claimant, a Probation Service Officer with anxiety and depression, alleged that the respondent failed to make reasonable adjustments after his duties again included urgent court work. He also alleged constructive unfair dismissal after retiring following an offer of a role in the Offender Management Unit.

The Liverpool Employment Tribunal dismissed both claims. It found that the respondent had made reasonable adjustments, that the proposed alternative role was suitable, and that the claimant’s retirement ended the employment by mutual consent. The claimant appealed, contending that the Tribunal had not addressed his case concerning events from autumn 2015, his requests for a Victim Liaison Officer role, and the contractual scope of the proposed role.

1. Appeal allowed. The Employment Tribunal erred in law by failing to engage with material aspects of the claimant’s reasonable-adjustments case. Its findings indicated that, by autumn 2015, the claimant had resumed court duties, a PCP which placed him at substantial disadvantage because of his disability. The Tribunal did not decide whether the respondent was then required to take further reasonable steps.

2. The omission also affected the period before the claimant’s February 2016 absence. The claimant had asked about a Victim Liaison Officer role. Although the respondent was not necessarily required to offer that role instead of the proposed Offender Management Unit role, the Tribunal had to consider whether an earlier obligation to explore it existed and whether its availability affected the reasonableness of the later proposal.

3. Reasonableness under section 20 of the Equality Act 2010 is objective. The Tribunal could reject subjective fears about the proposed role. Nevertheless, the role’s likely effect on the claimant’s anxiety and stress, and the possibility of another available role without that effect, were potentially relevant considerations.

4. The Tribunal’s conclusion that the claimant held a generic contractual role, permitting transfer to the Offender Management Unit, was inadequately explained. Its conclusion that the claimant had not left because of a contractual breach was consequently unsafe once the unaddressed earlier history was taken into account.

5. The decisions were set aside and the claims remitted for a complete rehearing before a freshly constituted Employment Tribunal. Applying Sinclair Roche & Temperley v Heard [2004] IRLR 763, a new Tribunal was proportionate and would ensure a fresh consideration of the issues.

• Employment Appeal Tribunal: allowed the claimant’s appeal and remitted both claims for rehearing before a differently constituted Employment Tribunal.
• Liverpool Employment Tribunal: dismissed the claimant’s complaints of failure to make reasonable adjustments under the Equality Act 2010 and constructive unfair dismissal.