Chumber v Hestia Healthcare Ltd

An employer’s duty to make reasonable adjustments requires consideration of both its knowledge of disability and whether it knew, or ought reasonably to have known, that the worker was likely to suffer a substantial disadvantage. The employer must make reasonable enquiries, assessed objectively in the circumstances.

An Employment Tribunal must address material evidence about the disability, the disadvantage and its manifestation. It cannot reach findings inconsistent with its own earlier findings without explanation. In a protected-disclosure dismissal claim, factual errors about the knowledge of an investigator or appeal officer may undermine findings about the reason for dismissal and alleged manipulation of the process.

The Claimant, a disabled support worker, was summarily dismissed after an incident involving colleagues in a care-home lounge. He alleged disability discrimination, failure to make reasonable adjustments, wrongful dismissal, and automatic unfair dismissal for making protected disclosures concerning a resident’s dignity.

The Bury St Edmunds Employment Tribunal dismissed all claims. It found that the Respondent lacked knowledge of any substantial disadvantage caused by requiring the Claimant to use stairs, that the dismissal was unrelated to protected disclosures, and that the dismissing and appeal officers lacked relevant knowledge.

On appeal, the Respondent conceded errors concerning reasonable adjustments, wrongful dismissal and the appeal officer’s knowledge. The central remaining issue was whether further factual errors concerning the investigator’s knowledge of the disclosures undermined the finding on the reason for dismissal.

1. Appeal allowed on all grounds. The reasonable-adjustments finding could not stand. The Employment Tribunal had found that use of stairs would cause the Claimant a substantial disadvantage, but later stated that there was no evidence of such disadvantage. That was internally inconsistent and failed to engage with material evidence about the Claimant’s condition, limp, pain, use of stairs and communications with managers.

2. The duty to make reasonable adjustments arises where the employer knows, or could reasonably be expected to know, both of the disability and of the likely substantial disadvantage. The employer must do what can reasonably be expected to discover whether the disadvantage exists. Reasonableness is objective and depends on the circumstances. The question of knowledge, and the reasonable steps to avoid the disadvantage, required reconsideration.

3. The Employment Tribunal erred in omitting the pleaded wrongful-dismissal claim altogether. That claim had to be determined on remission.

4. The finding that dismissal was not because of protected disclosures was unsafe. The Tribunal had made a significant factual error about the appeal officer’s knowledge. On a fair reading, it had also wrongly rejected the investigator’s knowledge that the Claimant was the whistleblower concerning the resident. Those errors could have affected findings about what the investigator communicated to the dismissing officer, whether the investigation was manipulated, and the true reason for dismissal.

5. Under section 35(1)(b) of the Employment Tribunals Act 1996, the Employment Appeal Tribunal could remit the existing appealed claims but could not confer jurisdiction to determine a new detriment claim. Given the substantially flawed findings and the risk of confirmation bias, the specified issues were remitted for a rehearing before a fresh Employment Tribunal.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal and remitted specified issues for rehearing before a fresh Employment Tribunal.
• Bury St Edmunds Employment Tribunal: Dismissed the claims for disability discrimination, failure to make reasonable adjustments, wrongful dismissal and dismissal for protected disclosures in reasons sent on 27 March 2018.