Edge Hill University v E Glasby

Where an employment tribunal upholds a discrete reasonable-adjustment or discrimination-arising-from-disability complaint, it must give sufficient reasons on each disputed essential element of that cause of action. This includes limitation, substantial disadvantage, knowledge, causation and the adjustment that should reasonably have been made, as applicable.

A conclusion on justification must also be consistent with the tribunal’s material findings of fact. If a tribunal rejects evidence previously accepted, particularly by finding that it was created to suit the circumstances, it must explain that conclusion. A perversity challenge nevertheless remains subject to a high threshold.

The claimant, a wheelchair user who later received cancer treatment, was dismissed for capability because of a lengthy sickness-absence record. She brought claims under the Equality Act 2010 for failure to make reasonable adjustments and discrimination arising from disability.

The Employment Tribunal upheld one reasonable-adjustment claim unanimously and two further reasonable-adjustment claims and two section 15 claims by majority. The employer appealed against every claim which had been upheld. The central issue was whether the tribunal had given adequate and coherent reasons for its conclusions on the statutory elements and on the justification of dismissal.

1. Appeal allowed. The Employment Appeal Tribunal quashed the decisions upholding the three reasonable-adjustment complaints and the two claims under section 15 of the Equality Act 2010.

2. The tribunal had provided no reasons in its conclusions for allowing the three reasonable-adjustment claims. Its reasons did not adequately address the essential matters of limitation, substantial disadvantage, the employer’s actual or constructive knowledge, and the further step which it ought reasonably to have taken. In relation to the heavy doors, the tribunal had accepted the general disadvantage and the employer’s response after notification, but made no finding about knowledge of the particular incident or any further reasonable step.

3. The earlier section 15 complaint, concerning the refusal in December 2018 to discount disability-related absences, was a discrete claim. The majority therefore had to determine limitation and address whether that refusal was because of something arising in consequence of disability. Its reasons did neither adequately.

4. The majority’s justification reasoning on dismissal was also defective. It rejected the employer’s evidence that other staff bore additional workload and said that the evidence had been created to suit the circumstances. That conclusion conflicted with earlier unanimous findings which accepted the impact of the absences. It was also a serious credibility finding requiring an explained evidential basis.

5. The employer’s perversity ground failed. Justification was an evaluative issue for the tribunal, and the EAT could not conclude that dismissal was the only possible lawful outcome on the facts found.

6. The upheld claims were remitted for fresh determination by a completely new Employment Tribunal panel. The previous lay members’ strong adverse view of the employer’s evidence made their participation unsuitable, and a new panel would promote confidence in the fresh outcome.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the claims previously upheld for fresh determination by a new panel: [2023] EAT 162.
• Employment Tribunal: Dismissed three reasonable-adjustment complaints as out of time. It upheld one reasonable-adjustment complaint unanimously and, by majority, two further reasonable-adjustment complaints and two claims under section 15 of the Equality Act 2010.