Employment Appeal Tribunal
An employment tribunal had not erred in finding that a disabled employee who was working flexitime should not have to come to work earlier to obtain a car parking space nearer to her work.
The appellant employer (E) appealed against a decision that the respondent employee (D) had been harassed by employees, that E had failed to make reasonable adjustments and that D had been unfairly dismissed.
D was disabled due to suffering from osteoarthritis and spondylitis. She worked for E under a flexitime contract. After she was assessed as being unable to carry out her job, she was away from work until a temporary position was found. She then usually arrived for work at a time when the main car park was full and so had to either use another car park which was further away and was deemed problematic for her to walk from, another from which E could collect her, or she could use a disabled person's space on the condition that she would move her car if it was required by a blue-badge holder. After two weeks in the position D was absent from work, apparently due to stress. Another employee (H) sent D an email referring to her negativity and expressing doubts as to her capability or willingness to fulfil any role with E. Approximately one year later, after following a capability procedure, E dismissed D due to her extensive absences and poor prospects of an immediate return to work. A tribunal found that H's email had been less than supportive or helpful and amounted to harassment, E had failed to make reasonable adjustments by not allocating D a space in the nearby main car park, and D had been unfairly dismissed.
E submitted that (1) the finding of harassment by H was perverse; (2) the correct provision, criterion or practice the tribunal should have considered was that D could have arrived earlier to use the main car park and that disadvantage was minor so the duty to make reasonable adjustments would not have arisen or, if it did arise, it was unreasonable to expect E to make the adjustment sought; (3) the tribunal erred in not reminding itself that the question in respect of dismissal was not whether E acted reasonably but whether it acted in a manner that fell outside the range of reasonable responses in the circumstances.
HELD: (1) Having considered both the words in the email and what the tribunal said about them, the email could not reasonably have been found to have had the purpose or effect of violating D's dignity or creating an environment which was intimidating, hostile, degrading, humiliating or offensive to her, contrary to the Disability Discrimination Act 1995 s.3B(1)(b). The email was sent in a situation in which, after D had been off work for months and efforts to find her an alternative post had failed, she had been found work and yet had left it after some two weeks. The situation was plainly one in which H had to manage. In that context, if the email was read as a whole, while some of the expressions might have been less than supportive and helpful, that was far from falling within the definition of harassment. The tribunal's conclusion was therefore perverse. The email could not reasonably, by any reasonable tribunal, have been read as falling within the statutory definition of harassment (see para.17 of judgment). (2) E's submissions were built on the assumption that the tribunal should have found that the provision, criterion or practice was one pursuant to which D came to work earlier, but she did not wish or intend to do so, and she was not obliged to do so. She was, under her contract, entitled to choose the time at which she came into work within the limits of the flexitime arrangements and not to have the time at which she came in dictated to her by E. The tribunal was entitled to determine the provision, criterion or practice on the basis that D wished to and intended to arrive at work at the later time, and that is what it determined. That involved no error of law (para.22). (3) The tribunal regarded its task to be carried out on the basis of its view as to whether the dismissal was reasonable, rather than using the range of reasonable responses test. At no point did it expressly set out the correct test in such a way as to negate that. It applied the wrong test. The conclusion that the dismissal was unfair could not stand. The matter was to be remitted (paras 34, 38).
Appeal allowed in part.
 Eq LR 13
William Meade (Senior Clerk)