Lancashire County Council v McGregor

An Employment Tribunal may assess a percentage chance that a claimant would have returned to work if reasonable adjustments had been made. The assessment is a broad evaluative one. It does not require medical evidence expressing the chance as a percentage, provided there is evidence capable of supporting the Tribunal’s conclusion.

An award for injury to feelings may fall within the middle Vento band where a prolonged failure to provide an adapted workstation has significant painful, humiliating and adverse effects on the claimant’s health. The appellate court will not interfere merely because another award might have been made.

Where an Employment Tribunal must have regard to guidance issued under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, it should follow the guidance unless it has, and articulates, a good reason to depart.

The Claimant, a disabled health and safety officer, succeeded before the Employment Tribunal on two claims that the Respondent had failed to make reasonable adjustments. At a remedy hearing, the Tribunal awarded past loss of earnings and £19,658 for injury to feelings. It assessed a 30% chance that the Claimant would have returned to work between July and December 2017 if adjustments had been made.

The Respondent appealed against that percentage assessment, the placement of the injury-to-feelings award in the middle Vento band, and the use of paragraph 11 of the Presidential Guidance to uprate the award. The central issues were whether those conclusions were perverse or legally erroneous.

1. Appeal dismissed. The Employment Tribunal was entitled to award 30% of the claimed earnings loss. Although medical and other evidence raised substantial obstacles to a return to work, GP fit notes indicated that the Claimant might be fit with reasonable adjustments. The Tribunal could give that evidence some weight and make a broad assessment of the chance of return. Such an assessment was not scientific and did not require medical evidence assigning a percentage chance. The finding was not irrational: [2019] UKEAT 0005_19_1406, paras 81–87.

2. The Tribunal was entitled to place the injury-to-feelings award in the middle Vento band. The Respondent’s argument wrongly reduced the relevant failure to the absence of a computer and treated the Claimant’s infrequent office attendance and absence from work as limiting the compensable impact. The failure concerned an adapted workstation recommended to accommodate the Claimant’s medical difficulties. Its absence exposed him to catheter damage, consequential injury and urinary infections, and the risk materialised. The Tribunal could take account of the continuing distress caused by knowing that the adjustments had still not been made: paras 88–96.

3. The award’s precise position within the middle band was for the Tribunal, subject to irrationality. The award was neither irrational nor manifestly excessive. The comparison advanced with AA Solicitors Ltd (T/A AA Solicitors) & Anor v Majid was unhelpful because the discriminatory conduct was materially different: paras 93–96.

4. Paragraph 11 of the Presidential Guidance applied to a claim presented before 11 September 2017. Under Rule 7 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the Tribunal had to have regard to the Guidance. By analogy with public-law guidance, it should follow it unless it had a good reason, articulated in its decision, to depart. The parties agreed the result of applying paragraph 11, and the Respondent supplied no sound alternative. It was lawful to follow the applicable guidance; the apparent anomaly resulted from the parties’ mistaken calculation, not the Guidance: paras 97–101.

• Employment Appeal Tribunal: Appeal dismissed. The Employment Tribunal’s remedy judgment was upheld.
• Employment Tribunal, Manchester: In an oral judgment of 17 November 2017, it upheld two reasonable-adjustment claims. In a remedy judgment sent on 2 October 2018, it awarded past loss of earnings, interest and injury-to-feelings compensation.