Crossland v Chamberlains Security (Cardiff) Ltd

The reasonable-adjustments duty under sections 20 and 21 of the Equality Act 2010 and discrimination arising from disability under section 15 are separate causes of action with different statutory tests. A finding that no effective and reasonable adjustment would enable safe continued work does not conflict with a finding that treatment was not objectively justified under section 15.

An Employment Appeal Tribunal will not reopen findings of fact merely because a party disputes them. A proposed appeal must identify an error of law with a reasonable prospect of success. Where no such error is shown, no further action will be taken on the appeal.

The Claimant, a security guard with Type 1 diabetes, brought disability-discrimination claims after he was removed from lone work at a remote reservoir following a hypoglycaemic episode. An earlier Cardiff Employment Tribunal had dismissed the claim. A previous appeal to the Employment Appeal Tribunal succeeded, and the matter was remitted for a rehearing before the Bristol Employment Tribunal.

The Bristol Tribunal upheld claims for failure to make reasonable adjustments, discrimination arising from disability and victimisation in some respects. It rejected the complaints concerning removal from the reservoir post and discriminatory dismissal, finding that the Claimant had resigned by requesting his P45. The Claimant sought to appeal the unsuccessful parts of that decision. The present hearing concerned whether his notice disclosed reasonable grounds for an appeal on a point of law.

1. The Rule 3(10) application was dismissed. The proposed appeal disclosed no error of law and no reasonable prospect of success. The EAT directed that no further action be taken on it.

2. The Bristol Tribunal was entitled to find that no reasonable adjustment could enable the Claimant to continue safely in lone work beside the remote reservoir. It had considered the medical and other evidence, the suggested adjustments, the Claimant’s management of his condition and the risk of a further hypoglycaemic episode. Its conclusion that the suggested adjustments would not effectively remove the relevant disadvantage was unimpeachable.

3. There was no inconsistency between rejecting the reasonable-adjustments complaint and upholding the section 15 complaint. As explained in Pulman v Merthyr Tydfil College Ltd [2017] UKEAT/0309/16, the statutory claims require separate application of their distinct tests. Section 15 incorporates objective justification and proportionality, whereas sections 20 and 21 of the Equality Act 2010 ask whether an adjustment was reasonable.

4. The finding that the Claimant resigned, rather than was dismissed, was a factual finding properly open to the Tribunal on the evidence. Its treatment of the second witness statement and its assessment of the covert recording and witness evidence disclosed neither an inadequacy of reasons nor any other legal error. Bates v Brit European Transport Ltd [1995] UKEAT/309/94, concerning the status of a P45, was inapposite because the Tribunal had not treated a P45 as conclusive of dismissal.

5. The alleged breach of the ACAS Code was hypothetical once dismissal had failed. There was no qualifying award capable of adjustment under section 207A and Schedule A2 to the Trade Union and Labour Relations (Consolidation) Act 1992. In any event, an adjustment would have remained discretionary and dependent on what was just and equitable.

• Employment Appeal Tribunal: At the Rule 3(10) stage, the EAT dismissed the proposed appeal and directed that no further action be taken: [2018] UKEAT 0378_17_3101.
• Bristol Employment Tribunal: On rehearing after remittal, it upheld some disability-discrimination claims but rejected the complaints concerning removal from the reservoir post and discriminatory dismissal.
• Employment Appeal Tribunal: An earlier appeal from the Cardiff Employment Tribunal succeeded, and the case was remitted for rehearing before a differently constituted Tribunal in a different region.
• Cardiff Employment Tribunal: The original disability-discrimination claim was dismissed.