Northumberland Tyne & Wear NHS Foundation Trust v Ward

Where an attendance-management requirement places a disabled employee at a substantial disadvantage, an employer must make an effective reasonable adjustment to avoid that disadvantage. An adjustment which has worked for several years may cease to be reasonable if circumstances change, but an employer advancing that position would be expected to demonstrate the change.

For discrimination arising from disability, the statutory justification question concerns the treatment, objectively assessed. Dismissal will be difficult to justify where an available reasonable adjustment could have avoided it. A tribunal may reach the same conclusion on proportionality and unfair dismissal where the relevant considerations substantially overlap, but should ordinarily analyse each claim adequately.

The Claimant, an occupational therapist with ME/chronic fatigue syndrome, had been permitted five sickness absences in a rolling year before the Respondent's sickness absence management policy was triggered. The Respondent removed that extended trigger in 2015, applied the standard trigger, and ultimately dismissed her in May 2017.

The Employment Tribunal upheld claims under sections 15 and 20 of the Equality Act 2010 and found the dismissal unfair. It made a 50% Polkey reduction, finding a chance of fair dismissal within four months. At remedy, it awarded future loss for two years and nine months. The Respondent appealed both the liability and remedy judgments, challenging reasons, justification, unfair dismissal, the reduction and causation.

1. The Liability Appeal was dismissed. The Tribunal adequately identified the relevant PCP as the requirement to maintain a specified attendance level to avoid warnings and dismissal. The adjustment relied on was the extended trigger. References to repeated failures to make adjustments did not introduce unspecified adjustments; they described the repeated failure to reinstate that trigger.

2. The Tribunal was entitled to find that continuing the extended trigger would have ameliorated the disadvantage. Although an adjustment is not automatically reasonable indefinitely, there was no evidence of a change which showed that an arrangement operating successfully for almost four years had ceased to be reasonable. Other measures did not displace that conclusion unless they effectively avoided the particular disadvantage.

3. The Tribunal assessed justification objectively under section 15 of the Equality Act 2010. It did not merely criticise the Respondent's decision-making process. It weighed the legitimate need to provide an occupational therapy service against the effects of removing the adjustment, the lack of proper consultation and adjustment planning, and the failures concerning redeployment. The treatment to be justified was the removal and non-reinstatement of the trigger and the resulting dismissal, rather than the sickness policy in the abstract.

4. The unfair-dismissal conclusion disclosed no error. In this case, the factors making the dismissal disproportionate also supported the conclusion that it was procedurally and substantively unfair. The EAT nevertheless cautioned that tribunals should not routinely abbreviate an unfair-dismissal analysis merely because they have decided a section 15 claim.

5. The 50% Polkey reduction was adequately reasoned. A realistic prospect of dismissal absent discrimination arose from absences, including the lengthy depression-related absence, which the Tribunal was entitled to treat as not caused by the chronic underlying conditions and which would have triggered the policy even with the extended trigger.

6. The Remedy Appeal was also dismissed. A finding that the Claimant would be fit for some work within 12 months did not mean she would then obtain work at an equivalent earnings level. The Tribunal permissibly assessed continuing loss by reference to her restricted capacity, limited suitable occupational therapy opportunities, travel difficulties, part-time work and the need for adjustments.

• Employment Appeal Tribunal: dismissed the Respondent's appeals against the Employment Tribunal's liability and remedy judgments.
• Employment Tribunal: upheld the claims for discrimination arising from disability and failure to make reasonable adjustments under the Equality Act 2010, and found the dismissal unfair. It made a 50% Polkey reduction and later awarded compensation.