J Parnell v Royal Mail Group Ltd

A later Employment Tribunal must respect findings that an earlier Tribunal made about the period before it. It must nevertheless decide the later claims on the evidence concerning the later events. A reasonable adjustment must have practical efficacy at the relevant time; an expired warning need not be expunged where doing so would not enable a return to work.

Under section 15 of the Equality Act 2010, dismissal will ordinarily be unfavourable treatment. The Tribunal must separately identify the reason for treatment and objectively determine whether that reason arose in consequence of disability, allowing for a chain of causation. An error on those questions does not affect the result where the employer has permissibly established objective justification.

The claimant, a postman/driver disabled by anxiety and depression, brought numerous Employment Tribunal claims. An earlier Tribunal upheld two reasonable-adjustments claims concerning a serious warning and the failure to review an investigation, but its findings concerned events before January 2020.

A second Tribunal dismissed claims arising from later absence-management events, dismissal and the unsuccessful dismissal appeal. It found that the warning had expired, no adjustment would have enabled a return to work, and dismissal for an irretrievable breakdown of trust and confidence was fair and justified.

The claimant appealed the rejection of claims under sections 15, 20 and 21 of the Equality Act 2010 and his unfair-dismissal claim. The central issue was the effect of the earlier Tribunal’s findings on the later Tribunal’s assessment of events in 2020.

1. Appeal dismissed. The later Tribunal was bound by the earlier Tribunal’s findings concerning the earlier period, but it was required to determine the claims before it by reference to the evidence about later events. It was entitled to find that the claimant’s position had changed after January 2020, particularly after the serious warning had expired.

2. The reasonable-adjustments claim disclosed no error of law. Although removal of the warning had not been included in the agreed list of issues, the Tribunal addressed it. It permissibly found that expunging an already expired warning would have had no practical effect on the claimant’s ability to return to work. On its findings, no proposed adjustment would have been effective. The practical and objective nature of the duty was consistent with FirstGroup Ltd v Paulley, [2017] UKSC 4.

3. The Tribunal’s reasoning that dismissal and rejection of the appeal were not unfavourable treatment was inadequately explained. Dismissal will ordinarily be unfavourable treatment, and the Tribunal had already found detriment. It also failed adequately to apply the distinct causation inquiry under section 15, including the possibility of a chain of links between disability and the reason for treatment.

4. Those errors did not require remission. The Tribunal had separately and permissibly found that dismissal was a proportionate means of achieving the legitimate aim of regular and reliable attendance and meaningful engagement in discussions about return to work. It found no less discriminatory measure that could have achieved that aim, given the expired warning, prolonged absence, impasse and absence of any foreseeable return.

5. The unfair-dismissal decision was also sound. Reasonableness fell to be assessed when dismissal occurred. Earlier wrongdoing or a previous failure to make adjustments did not give the claimant an automatic right to refuse all work or discussions. The Tribunal was entitled to find that the situation had shifted and that dismissal for some other substantial reason fell within the range of reasonable responses.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 130.
• Employment Tribunal (Liverpool): The Shotter ET dismissed the later claims, including the claims under sections 15, 20 and 21 of the Equality Act 2010 and unfair dismissal.
• Employment Tribunal (Manchester): The Johnson ET had previously upheld two reasonable-adjustments claims concerning earlier events and otherwise dismissed the earlier claims. No appeal was brought from those decisions.