R Phullar v Ofsted

For discrimination arising from disability, the question is whether the unfavourable treatment was because of something arising in consequence of disability. It is not whether the disability itself significantly influenced the decision-maker. Where that causal element is established, the tribunal must determine justification.

In capability dismissals, the tribunal must make coherent and sufficiently reasoned findings on consultation, the medical position, alternatives to dismissal, and whether the employer could reasonably have waited longer. A reasonable-adjustments complaint turns on whether a step should substantively have been taken, not merely on the employer’s process. Reasons must explain how findings support the conclusions reached.

The claimant, an Early Years Regulatory Inspector, was absent after cancer surgery and returned to limited home-based duties. Occupational Health and Access to Work advice addressed equipment, risk assessment, reduced duties and the possibility of a later return to inspections. The respondent dismissed her for ill-health capability in May 2022.

The Employment Tribunal dismissed claims for unfair dismissal and discrimination arising from disability under section 15 of the Equality Act 2010. It upheld two reasonable-adjustments complaints concerning shadowing and a phased return to inspections, but dismissed other reasonable-adjustments complaints.

The claimant appealed the dismissals of her claims. The respondent cross-appealed the successful reasonable-adjustments findings. The central issue was whether the Tribunal had applied the correct legal tests and given adequate, coherent reasons for its conclusions.

1. Appeal and cross-appeal allowed. The Employment Tribunal’s decision was extensively flawed by insufficient fact-finding, inadequate reasons and apparently conflicting findings. The surviving issues were remitted for a fresh hearing before a differently constituted tribunal.

2. The Tribunal misdirected itself on section 15 of the Equality Act 2010. Section 15 required it to ask whether dismissal was because of something arising in consequence of disability, not whether the disability significantly influenced the dismissing officer. The respondent had conceded the correct causal element. The Tribunal therefore had to determine the pleaded justification defence.

3. The Tribunal’s rejection of the reasonable-adjustments complaints concerning Access to Work equipment and auxiliary aids could not stand. Having found substantial disadvantage from the inspection and desk-based PCPs, it did not explain why the recommended equipment would not avoid or ameliorate that disadvantage. It also gave no independent reasons for rejecting the overlapping auxiliary-aids complaint. Uncertainty about the equipment’s eventual effectiveness could be relevant to reasonableness, but was not necessarily decisive.

4. The Tribunal also failed to give coherent reasons concerning alternative work, shadowing and phased inspections. Its findings that there was no meaningful consideration of redeployment, yet that alternative roles and duties had been considered, were not reconciled. Its conclusions on shadowing and a phased return were likewise inadequately explained and conflicted with its treatment of the equipment. The EAT did not find any of these conclusions perverse.

5. The unfair-dismissal conclusion under section 98(4) of the Employment Rights Act 1996 was not adequately reasoned. The Tribunal had to address consultation, the adequacy of the medical investigation, possible alternatives, current medical information, the unprovided equipment, and whether a reasonable employer would have waited longer or tried limited inspections. The finding that dismissal was for capability remained in place; fairness was remitted.

• Employment Appeal Tribunal: allowed the claimant’s appeal and the respondent’s cross-appeal, set aside the relevant conclusions, and remitted the outstanding claims for a fresh hearing before a different Tribunal: [2026] EAT 10.
• Employment Tribunal: in a decision sent on 8 February 2024, dismissed the unfair-dismissal and section 15 claims, upheld two reasonable-adjustments complaints, and dismissed the remaining reasonable-adjustments complaints.