Dr V Powell v University of Portsmouth & Anor

An employer’s justification of unfavourable treatment arising from disability requires an objective proportionality assessment. The tribunal must balance the discriminatory effect against the employer’s legitimate operational needs, without applying a range-of-reasonable-responses test.

The reasonable-adjustments duty is practical and outcome-focused. A proposed step need only have a prospect of alleviating the disadvantage, but its effectiveness, practicability and impact may show that it was not reasonable. A risk assessment is not, of itself, an adjustment because the statutory duty is to take steps, not merely to consult.

For constructive dismissal, the implied term of trust and confidence is assessed objectively. A tribunal does not err by deciding the case on the basis in which it was actually advanced.

The claimant, a principal lecturer, experienced unpredictable blackouts caused by an undiagnosed cardiac condition. The Employment Tribunal found that classroom and lecture teaching was his principal role during the relevant first-semester period.

The university did not permit him to return to work between 5 September and 25 October 2018 unless he could undertake face-to-face teaching. It rejected proposed alternatives including a support worker, restricted research-based duties and risk assessments. The claimant alleged discrimination arising from disability under section 15 and a failure to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010.

He also resigned after receiving the management response for his grievance appeal and claimed constructive unfair dismissal. The ET dismissed all claims. He appealed on justification, reasonable adjustments and the test for breach of the implied term of trust and confidence.

1. Appeal dismissed. The ET was entitled to reject the disability-discrimination claims for the limited period from 5 September to 24 October 2018.

2. For section 20, the question was whether the proposed steps would have had a practical prospect of alleviating the claimant’s substantial disadvantage and whether it was objectively reasonable to require them. The ET permissibly found that a support worker could neither prevent the unpredictable blackouts nor avert the consequent disruption and upset. It was also entitled to find that a return confined to smaller teaching, research or supervision was not a reasonable adjustment. The claimant’s condition had deteriorated, he had not completed reduced duties during the phased return, and there was no reliable basis for concluding that he could consistently perform alternative work. A workplace risk assessment was not a practical step at that time and was not itself a reasonable adjustment.

3. For section 15 of the Equality Act 2010, consistent high-quality teaching was a legitimate aim. The ET had critically evaluated the university’s operational requirements and the discriminatory effect of requiring the claimant to be fit for face-to-face teaching. It could take account of earlier disruption, the significance of teaching to the role, the absence of a diagnosis or treatment, the risks of further blackouts, and the lack of a less discriminatory workable alternative. Its conclusion that the requirement was appropriate and reasonably necessary was open to it.

4. The ET correctly directed itself on the implied term of trust and confidence. It applied an objective test from the perspective of a reasonable person. Given the claimant’s case that the delivery of management documents was calculated and deliberate, it was entitled to reject the contention that presenting the management side of an unresolved grievance appeal amounted to a repudiatory breach.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 56.
• Employment Tribunal, Southampton: Reserved decision sent on 8 June 2022. The ET dismissed the claimant’s disability discrimination, constructive unfair dismissal and victimisation claims.