K Preston v E.ON Energy Solutions Limited

An employer’s duty to make reasonable adjustments arises only when it knows, or could reasonably be expected to know, both that a worker is disabled and that the worker is likely to suffer the relevant substantial disadvantage. Knowledge of a diagnosis alone is insufficient.

The assessment of substantial disadvantage must address the impairment’s practical effect as a whole. An Employment Tribunal may find that minor and transient symptoms are not themselves substantial, while an increased risk of a serious seizure caused by a workplace requirement is a substantial detriment.

For discrimination arising from disability under section 15 of the Equality Act 2010, dismissal for a worker’s refusal to engage with reasonable return-to-work measures may be justified where adjustments were available, occupational health considered the worker fit to return, and the employer’s absence-management aim was proportionately pursued.

The claimant, who had primary reading epilepsy, appealed against the dismissal by the Leicester Employment Tribunal of claims under sections 15, 20 and 21 of the Equality Act 2010.

The Tribunal found that reading increased the risk of a tonic-clonic seizure and thus created a substantial disadvantage. It found, however, that the respondent did not know, and could not reasonably have been expected to know, of that disadvantage until 18 October 2017. By then the claimant was absent with stress and depressive symptoms which the Tribunal found were unrelated to his epilepsy. The Tribunal further found that the respondent had made reasonable return-to-work adjustments and that dismissal resulted from the claimant’s refusal to engage with those measures.

The appeal challenged the findings on imputed knowledge, substantial disadvantage, the timing of the adjustments duty, the cause of absence, and the proportionality of summary dismissal.

1. Appeal dismissed unanimously. The Employment Tribunal was entitled to find that, before 18 October 2017, neither the respondent nor any servant or agent knew, or could reasonably have been expected to know, that the claimant was likely to suffer the relevant substantial disadvantage. Even assuming that knowledge which Manpower ought reasonably to have had could be imputed to the respondent, the claimant had disclosed no implication of his condition that would have alerted Manpower to an increased risk of tonic-clonic seizure when reading.

2. The Tribunal had also permissibly rejected the claimant’s account of his disclosure to his first manager. It was apparent that the Tribunal had considered the relevant evidence and found that he had not revealed a workplace disadvantage. It was not required expressly to use the phrase “imputed knowledge” where its findings had addressed the possible routes by which knowledge might have arisen.

3. The Tribunal correctly made a holistic assessment of the impairment. It was entitled to find that myoclonic seizures were momentary and did not themselves substantially impair work, but that reading increased the risk of a serious tonic-clonic seizure. That risk was sufficient to constitute a substantial detriment for the reasonable-adjustments claim under the Equality Act 2010.

4. The Tribunal was entitled, on the contemporaneous medical and factual evidence, to find that the claimant’s stress and depressive symptoms were not caused by his epilepsy. His absence therefore did not arise in consequence of the disability. In any event, it was open to the Tribunal to find that dismissal was because of his refusal to engage with the planned return-to-work measures, not because of absence itself.

5. Alternatively, the dismissal was a proportionate means of achieving the legitimate aim of efficient absence management. Occupational health had advised that the claimant was fit to return with adjustments, the respondent had offered and planned those adjustments, and the claimant repeatedly declined reasonable management requests. Summary dismissal was therefore not shown to be disproportionate.

• Employment Appeal Tribunal: Appeal dismissed: [2022] EAT 192.
• Leicester Employment Tribunal: Dismissed the claimant’s relevant claims of disability discrimination following a hearing from 17 to 21 February 2020 and a further day in chambers on 14 April 2020.