Shah v TIAA Ltd

Dismissal of a disabled employee may be a proportionate means of achieving a legitimate operational aim where an essential part of the role cannot be performed, no reasonable adjustment would enable its performance, and continued employment would cause substantial ongoing loss.

The duty to make reasonable adjustments is proactive and may arise without an employee suggesting the adjustment. However, an employee’s failure to propose an adjustment, and evidence that the employee would not accept it, may be relevant to whether it is reasonable. A tribunal may find that no further medical evidence or delay is required where the evidence shows no realistic prospect that the employee will soon be able to perform the essential role requirements.

The claimant, whose longstanding back condition made her disabled for the purposes of the Equality Act 2010, was employed in a client-facing audit role. The role required visits to clients’ premises and was funded by chargeable client work. Her condition restricted travel, and she could not meet her chargeable-hours target after the loss of a nearby client contract.

Following occupational-health advice, meetings, consideration of home working, adjusted targets, redeployment and redundancy, the respondent dismissed her for capability. The Employment Tribunal dismissed claims for direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment and unfair dismissal.

The claimant appealed the dismissal of all those claims except age discrimination. The central questions were whether dismissal was proportionate, whether further adjustments should have been considered, and whether the Tribunal’s conclusions on harassment and unfair dismissal disclosed an error of law or perversity.

Decision

1. The appeal was dismissed. The Employment Tribunal’s findings were open to it and disclosed no error of law or perversity.

2. The respondent’s aim of providing the contracted client services was legitimate. The Tribunal was entitled to find dismissal proportionate. Travel to client sites was indispensable to the claimant’s role; the claimant repeatedly said she could not undertake the necessary travel; and no proposed adjustment would enable her to carry out sufficient chargeable work without a substantial continuing financial deficit. The occupational-health report did not support an expectation that the restriction would shortly end. The Tribunal could therefore conclude that further delay or a further medical report would achieve nothing.

3. [2017] ICR 737 did not establish that dismissal of a disabled employee who remained at work could never be proportionate. In that case the Tribunal had been entitled, on different facts, to attach weight to evidence of a likely imminent return to work. It did not govern this case.

4. The duty to make reasonable adjustments rests on the employer and is not avoided because the employee did not suggest an adjustment. In principle, a reasonable adjustment may have to be made although it never occurred to the employee. Nevertheless, an employee’s failure to suggest an adjustment may bear on its reasonableness, particularly where the evidence permits the conclusion that the employee would not accept it. The Tribunal was entitled to find that part-time work at correspondingly reduced pay was not an adjustment the claimant had advanced or shown interest in accepting, and that home working, reduced targets and redeployment were not reasonable adjustments on the facts.

5. The harassment claim could properly be rejected by reference to the earlier findings. The respondent’s discussions and attempts to find a solution did not have the purpose or effect required for harassment. The dismissal was also fair: the Tribunal was entitled to find that the claimant’s inability to undertake the essential travel requirements made her incapable of performing the role, and that a reasonable employer could dismiss without waiting longer or commissioning further medical evidence.

• Employment Appeal Tribunal: Dismissed the claimant’s appeal against the rejection of her disability discrimination, reasonable-adjustments, harassment and unfair-dismissal claims.

• Employment Tribunal: London Central Employment Tribunal dismissed the claims in a reserved judgment dated 6 November 2018.