Browne v The Commissioner of Police of The Metropolis

A claimant alleging a failure to make reasonable adjustments must establish that the relevant provision, criterion or practice placed them at a substantial disadvantage compared with non-disabled persons. Medical evidence may assist that enquiry, but it is not a necessary condition. The tribunal must assess the evidence as a whole.

An appeal on perversity succeeds only where the tribunal’s conclusion was not a permissible outcome on the evidence. Under section 15 of the Equality Act 2010, the unfavourable treatment itself must be justified. Automatic sick-pay reductions may nevertheless be proportionate where the employer provides, and genuinely affords, timely procedures for an individual application, representations and appeal.

The claimant, an emergency call operative with asthma, alleged disability discrimination after being required to work in operational open-plan areas and after reductions in her sick pay during disability-related absence. She contended that a reasonable adjustment would have placed her in an office where she could control the ambient temperature.

The Watford Employment Tribunal unanimously dismissed all claims after a six-day hearing. It found that the claimant had not established that the working environment caused or triggered her asthma, or that the relevant practice placed her at a substantial disadvantage. It also found that the sick-pay reductions were justified.

The claimant appealed on grounds including perversity, reasonable adjustments and justification under section 15 of the Equality Act 2010.

1. Appeal dismissed. The Employment Tribunal’s conclusions were permissible on the evidence and disclosed no error of law.

2. The high threshold for perversity, stated in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 and Yeboah v Crofton [2002] IRLR 634 CA, was not met. The Employment Appeal Tribunal could not substitute its own assessment for that of the fact-finding tribunal merely because it might have reached a different view.

3. The Tribunal was entitled to find that the claimant had not proved that the open-plan working requirement placed her at a substantial disadvantage. It did not treat medical evidence as indispensable. It considered the whole evidential picture, including the absence of clinical evidence linking the environment to asthma triggers, environmental testing, other variables affecting attendance in the separate room, and its findings on the claimant’s reliability. In the absence of evidence establishing actual substantial disadvantage, no further comparison exercise could affect the result.

4. The Tribunal was also entitled to distinguish between manually controlling an area’s ambient temperature and using a personal heater or fan to affect an immediate workspace. Its findings that the building’s ambient conditions were materially consistent and that room 105 was not materially different in that respect were open to it.

5. On the section 15 claim, the Tribunal applied the correct approach in Buchanan v Commissioner of Police of the Metropolis [2017] ICR 184. The reductions in sick pay were the unfavourable treatment requiring justification. Although they operated automatically, the employer’s procedures enabled an employee to seek an extension, make representations and appeal before the reductions took effect. The claimant was given clear notice and assistance to make an application. The Tribunal was entitled to conclude that this individualised flexibility made the treatment proportionate to the legitimate aims relied on.

• Employment Appeal Tribunal: appeal dismissed.
• Watford Employment Tribunal: by a judgment promulgated on 1 February 2017, unanimously rejected all of the claimant’s disability-discrimination claims.