Employment Appeal Tribunal
HELD: (1) The obligation to have regard to all the circumstances, including the benefits to the force and the consequences for other officers was self-evident, O'Hanlon v Revenue and Customs Commissioners (2007) EWCA Civ 283, (2007) ICR 1359 considered. The tribunal had assessed the reasonableness of allowing W into the scheme merely by focusing on W's position. It was obliged to engage with the force's wider operational objectives, and in particular the desire to liberate posts for restricted officers. If W were to retire, that would liberate a further post for those in the force who were on restricted duties and would in turn enable a non-disabled officer to be recruited. A significant part of the tribunal's reasoning appeared to have been based on the premise that W would have remained in his post any way. That was an unjustified premise. At the time W applied to go into the scheme, he had indicated an intention to retire. In addition, if the scheme was properly applied, and not merely operated to give a benefit to an officer with 30 years' experience, there could be no justification for invoking it if W was going to remain in his post in any event. It was then not necessary to put him into the scheme to retain his skills. (2) The fact that the force had deliberately adopted a policy which operated to the disadvantage of disabled people could not be a relevant consideration in terms of reasonable adjustments. In every case there would be a provision, criterion or practice adopted by the employer which created a substantial disadvantage. That was not a factor which could properly weigh with the tribunal in considering whether a reasonable adjustment could be made. That error on its own would have been sufficient to invalidate the tribunal's decision. (3) It could not be the case that only adjustments which brought about integration into employment were required. The issue was whether an adjustment would mitigate or eliminate the substantial disadvantage and was reasonable. If the disadvantage related to the terms of employment, for example, then the question was whether a reasonable adjustment could be made to counter it, even if it did not affect the job or the way that it was carried out, Secretary of State for Work and Pensions v Macklin Unreported November 30, 2007 EAT, Chacon Navas v Eurest Colectividades SA (C13/05) (2007) All ER (EC) 59 ECJ and O'Hanlon considered. (4) The case was remitted to a fresh tribunal to consider the question of reasonable adjustments.
William Meade (Senior Clerk)