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Chambers & Partners
28/02/2008

Secretary Of State For Work & Pensions v. D Macklin

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Employment Appeal Tribunal

Before finding that there had been discrimination against a disabled employee by failure to make reasonable adjustments, an employment tribunal had to identify the arrangement applied by the employer; the physical feature of premises occupied by the employer, if applicable; the identity of non-disabled comparators; and the nature and extent of the substantial disadvantage suffered by the employee. Only then could it determine what adjustments the employer could reasonably make.
 
The appellant secretary of state appealed against an employment tribunal’s finding that he had unfairly dismissed the respondent employee (M) and subjected her to disability discrimination.

M suffered from diabetes and reactive depression. She had been on sick leave for nearly three years before the secretary of state dismissed her. The tribunal found that M had suffered a mental breakdown due to work-related stress. Applying the unamended Disability Discrimination Act 1995, the tribunal concluded that, contrary to Disability Discrimination Act 1995 s.5(2), the secretary of state had unjustifiably failed to comply with his s.6 duty to make reasonable adjustments; and so M’s dismissal was disability-related discrimination, contrary to s.5(1), as well as unfair, contrary to the Employment Rights Act 1996 s.98(4).

HELD: Before finding that there had been discrimination by failure to make reasonable adjustments, a tribunal had to identify the arrangement applied by the employer; the physical feature of the premises occupied by the employer, if applicable; the identity of non-disabled comparators; and the nature and extent of the substantial disadvantage suffered by the employee. Having carried out that exercise, the tribunal would then be able to determine the question as to what would be reasonable adjustments, having regard to the extent to which those adjustments would prevent arrangements made by the employer from placing the disabled employee at a substantial disadvantage when compared with the non-disabled comparator. In the instant case, the tribunal had not asked itself how M was placed at a disadvantage in comparison with non-disabled employees, but had simply asked what steps the secretary of state could have taken to improve matters for her. It had then proceeded to consider what steps could be taken; not what steps would probably prevent the disadvantage found. The tribunal had therefore failed to follow the s.6 procedure. In relation to the period when M was absent from work, the tribunal had failed to ask itself whether the steps which the secretary of state could have taken would have achieved the aim of getting her back to work, thus preventing the disadvantage she was under. Since the tribunal's findings as to reasonable adjustments were fatally flawed, it followed that its findings as to disability related discrimination and unfair dismissal could not stand and the case would be remitted to a fresh tribunal for rehearing.

Appeal allowed.

LTL 14/5/2008
Macklin.pdf

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