London Borough of Haringey v Oksuzoglu (DISABILITY DISCRIMINATION)

A single procedural error does not ordinarily constitute a provision, criterion or practice for the reasonable-adjustments duty under section 20 of the Equality Act 2010. There must be evidence that the event reflected a practice of more general application, or evidence from which such a practice can be inferred.

The reasonableness of a proposed adjustment is assessed objectively. The tribunal must consider whether it could effectively alleviate the relevant disadvantage and must take account of relevant evidence and submissions. An employer’s failure to consider an adjustment does not itself establish that the adjustment was reasonable.

The Claimant, a disabled Camera Enforcement Officer, was dismissed for capability. The Employment Tribunal held that her dismissal was unfair, a conclusion not challenged on appeal. It also upheld a claim that the employer had failed to make reasonable adjustments.

The adjustments found were continued participation in redeployment during the notice period and discounting disability-related absences. The employer appealed the reasonable-adjustments findings. The central issues were whether a one-off administrative error could be a provision, criterion or practice, and whether the Tribunal had applied the objective test of reasonableness.

1. Appeal allowed. The Employment Tribunal erred in holding that the erroneous closure of the Claimant’s redeployment referral was a provision, criterion or practice. The evidence showed a one-off error about the effective date of termination. There was no finding or evidence that it reflected a practice applied generally to other employees.

2. A practice may exceptionally be inferred from a single occurrence, but only where direct evidence shows that the occurrence was indicative of a practice of general application, or other evidence permits that inference. Unfair treatment caused by an isolated procedural error may support an unfair-dismissal finding, but it does not without more engage the reasonable-adjustments duty under section 20 of the Equality Act 2010.

3. The Tribunal also misapplied the objective inquiry into whether an adjustment was reasonable. Its own finding that the Claimant was not fit to apply for jobs during the notice period showed that continued redeployment would not have ameliorated the disadvantage. The Tribunal could not treat the employer’s failure to consider an adjustment, or to explain why it had not taken it, as establishing objective reasonableness.

4. In respect of disability-related absence, the Tribunal had failed to consider written submissions directly addressing why discounting the absence would not be reasonable. On the established findings and material before it, no reasonable Tribunal could have upheld either reasonable-adjustments claim.

5. The issue was binary and no further factual findings were required. Applying Jafri v Lincoln College [2014] EWCA Civ 449, the EAT substituted a decision dismissing the reasonable-adjustments claim. Any surviving loss issues were left to the Employment Tribunal at remedy.

• Employment Appeal Tribunal: allowed the employer’s appeal and substituted dismissal of the reasonable-adjustments claim: [2019] UKEAT 0248_18_2008.
• Employment Tribunal, Watford: found the Claimant unfairly dismissed and upheld her reasonable-adjustments claim. The unfair-dismissal finding was not challenged. It rejected claims for protected-disclosure dismissal and direct disability discrimination.