Omar Ayche v The Hop Box Limited (t/a Peddler Market)

The statutory duty to make reasonable adjustments is the duty of the respondent on whom it is imposed. A tribunal cannot find that the duty has been met by an adjustment of which the respondent was unaware and to which it did not agree. In a reasonable-adjustments claim, the tribunal must identify the respondent’s provision, criterion or practice, the resulting substantial disadvantage to the disabled person, and the reasonable steps required to avoid it. Where a material finding that an adjustment was made rests on a misunderstanding of undisputed facts, the decision cannot stand and the claim must be determined again.

The claimant was a contract worker at a food event organised by the respondent. He was disabled by asthma and a previous brain tumour. The respondent required serving staff to wear face coverings. The claimant alleged that the respondent had failed to make reasonable adjustments for the difficulty that requirement caused him.

The Employment Tribunal dismissed that complaint. It found that the respondent had made a reasonable adjustment by allowing the claimant to wear a mask below his nose, except when he expected to encounter a person in authority. On appeal, the parties accepted that the respondent neither knew of nor agreed to that practice. The central issue was whether the Tribunal’s conclusion could stand on those undisputed facts.

1. Appeal allowed. The Employment Tribunal’s conclusion that the respondent had made a reasonable adjustment rested on a material misunderstanding of undisputed facts. The respondent did not know that the claimant was wearing his mask below his nose, save when he anticipated encountering a person in authority, and did not agree to that practice.
2. Under section 41(4) of the Equality Act 2010, a principal owes the duty to make reasonable adjustments to a contract worker. Under section 20(3), the duty requires the person on whom it is imposed to take such reasonable steps as are required to avoid the substantial disadvantage caused by its provision, criterion or practice.
3. The duty is the respondent’s duty. An adjustment made unilaterally by the claimant, without the respondent’s knowledge or agreement, could not constitute the respondent’s compliance with that duty. The Tribunal’s contrary factual premise was therefore determinative of its dismissal of the claim.
4. The reasonable-adjustments claim was remitted to the same Tribunal. It must redetermine the relevant provision, criterion or practice, any substantial disadvantage, and whether the respondent failed to take a reasonable step. The Tribunal may make appropriate case-management directions to ensure that the remitted claim is fully prepared.

• Employment Appeal Tribunal: Allowed the appeal and remitted the reasonable-adjustments claim to the same Employment Tribunal.
• Employment Tribunal: Employment Judge Brain sitting with lay members dismissed the failure-to-make-reasonable-adjustments complaint in a judgment dated 9 August 2021, with reasons sent on 22 September 2021.