J Parnell v Royal Mail Group Ltd

The Employment Appeal Tribunal dismissed the appellant's challenge to an Employment Tribunal's decision which had dismissed his later-period claims of disability discrimination under sections 15, 20 and 21 Equality Act 2010 and his unfair dismissal claim. The court emphasised the proper legal tests for a s.15 claim (identification of unfavourable treatment, reason in the mind of the discriminator, whether the "something" arose in consequence of disability, and objective justification) and for the duty to make reasonable adjustments under ss.20–21 EqA.

The EAT held that the second tribunal (the Shotter ET) had appropriately had regard to the earlier findings of a separate tribunal (the Johnson ET) but was required to decide the factual picture as it stood at the later time. On the reasonable adjustments complaints the Shotter ET permissibly found that, by the time of the dismissal, expunging the two‑year warning (already expired) or other suggested steps would have had no realistic prospect of securing the claimant's return to work. Although the Shotter ET's reasoning on whether the dismissal amounted to "unfavourable treatment" and on the causal link under s.15 was inadequately explained in one respect, it nonetheless went on to consider and permissibly uphold the employer's objective justification defence. The appraisal of the fairness of dismissal was correctly conducted at the time the employer made the decision and the appeal was dismissed.

Background and parties:

• The claimant was employed by the respondent from 1999 until dismissal on 12 June 2020 and suffered anxiety and depression from at least January 2012.
• The claimant brought multiple Employment Tribunal claims which were split between two tribunals: the Johnson ET (dealing with earlier events up to early 2020) and the Shotter ET (dealing with later events and the dismissal). The Johnson ET found two failures to make reasonable adjustments (failure to remove a two‑year serious warning and failure to review an earlier investigation) and awarded damages. The Shotter ET dismissed the subsequent claims, including under ss.15, 20 and 21 EqA and unfair dismissal.

Nature of the appeal and relief sought:

• The claimant appealed to the EAT against the Shotter ET's dismissal of his s.15, ss.20–21 EqA and unfair dismissal complaints.

Issues framed by the court:

• Whether the Shotter ET had properly applied the legal test in s.15 EqA (identifying unfavourable treatment, establishing the reason in the mind of the decision‑maker, whether the "something" arose in consequence of disability, and whether the treatment was objectively justified).
• Whether the Shotter ET had given appropriate effect to the Johnson ET's findings and whether it was bound by them.
• Whether reasonable adjustments could have been made that would have enabled a return to work (ss.20–21 EqA).
• Whether dismissal was within the range of reasonable responses at the time it was taken (unfair dismissal, ERA 1996 s.98).

Court's reasoning and outcome:

• The EAT emphasised that a later tribunal must have regard to earlier findings but must decide the facts and issues as they stood when the later decisions were taken; it rejected the submission that the Shotter ET was compelled to treat the earlier findings as determinative of causation and proportionality at the later date.
• On reasonable adjustments the EAT upheld the Shotter ET's conclusion that by the time of dismissal there was no efficacy in expunging the expired two‑year warning and no reasonable steps would, on the evidence, have secured the claimant's return.
• On s.15 the EAT concluded the Shotter ET had not given an adequate explanation for its apparent finding that dismissal was not unfavourable treatment and had not fully explained its causal analysis as to whether the "something" arose in consequence of disability. However, because the Shotter ET proceeded to consider objective justification and permissibly found the dismissal to be a proportionate means of achieving a legitimate aim, the EAT dismissed the appeal on that head.
• On unfair dismissal the EAT held the Shotter ET was entitled to assess reasonableness at the time the dismissal decision was taken; the factual position had moved on since the earlier tribunal's findings and dismissal fell within the range of reasonable responses.

Procedural note: permission to pursue the appeal had been granted following a rule 3(10) preliminary hearing; the EAT heard the appeal on 25–26 June 2024 and handed down judgment on 12 August 2024.

Appeal dismissed. The EAT held that the Shotter ET was entitled to make findings based on the evidence as it stood at the later date and to conclude that expunging the expired two‑year warning or other adjustments would have had no efficacy in securing a return to work. Although the Shotter ET did not adequately explain one aspect of its s.15 reasoning (whether dismissal was unfavourable and the causal analysis), it permissibly found that any unfavourable treatment was objectively justified and that dismissal was within the range of reasonable responses, so the claimant's appeal fails.

The claimant's claims were split between two Employment Tribunals. The Johnson ET (Manchester, Employment Judge Johnson, judgment delivered 28 July 2021) heard earlier claims and found failures to make reasonable adjustments in respect of a two‑year serious warning and a failure to review a misconduct investigation, awarding losses to 4 January 2020. The Shotter ET (Liverpool, Employment Judge Shotter, judgment sent 16 May 2022) heard later claims, dismissed them and upheld the fairness of dismissal. Permission to appeal to the EAT was granted after a rule 3(10) hearing; the EAT heard the appeal on 25–26 June 2024 and delivered judgment on 12 August 2024 in [2024] EAT 130.