The EAT said that a dismissal may be so bound up with a failure to make reasonable adjustments that the dismissal is itself an unlawful act. The 2004 change in law on unreasonable adjustments meant that dismissals might now a breach of the reasonable adjustment duty.
Employment Appeal Tribunal, May 2009. Full judgment: bailii.org.
The claimant lectured at a college, and had a substantial absence from work due to disability. She was dismissed in September 2006. She had requested a phased return to work but the employer refused. She hoped that, after surgery, she would be fit to return to work in January 2007 on a 0.5 basis working daytime only. The employment tribunal held there was a breach of the duty to make reasonable adjustments, and also disability-related discrimination.
Held by EAT: The EAT upheld the decision that there was a failure to make reasonable adjustments. There was no disability-related discrimination, because the basis for the tribunal’s decision on that had been overturned by the House of Lords in LB Lewisham v Malcolm.
However, this lack of disability-related discrimination did not mean the case had to be remitted to the employment tribunal. Disability-related discrimination added nothing in this case. “The dismissal was itself an unlawful act of disability discrimination by reason of the failure to make reasonable adjustments.” Here it was impossible to disentangle the failure to make reasonable adjustments from the decision to dismiss. This claimant was dismissed because the employer considered that the alternatives to dismissal involved making adjustments which he considered were unacceptable.
70. Under the previous legislation section 6 [i.e. the reasonable adjustment duty] was couched in far more restrictive terms, as the Court of Appeal recognised in Clark v Novocold Ltd …, and it did not extend to dismissal. That changed in 2004 with the arrival of the new section 4A where the duty to make reasonable adjustments is now unqualified. This is also reflected in paragraph 5.5 of the DRC Code of Practice. A dismissal can therefore itself be an unlawful act of discrimination by reason of a failure to make reasonable adjustments.
71. In this case therefore we accept Mr Dyal’s submission that this Claimant’s dismissal was tainted by the failure to make reasonable adjustments, and was itself an unlawful act. Instead of making those adjustments the Respondent chose to dismiss her….
73. Given the failure to make reasonable adjustments, the dismissal was therefore an unlawful act of disability discrimination, and the losses incurred by the Claimant all flow from the failure to make reasonable adjustments.
75. For the reasons we have given, even if we were wrong that the dismissal itself amounts to an unlawful act of disability discrimination, it was clearly a different type of detriment, as Mr Dyal pointed out, and the losses that flow from that are identical, see Clark v Novacold…
Paragraph 75 seems to be referring to the Court of Appeal’s statement in Clark v Novocold that, in an appropriate case, there is no reason why compensation recoverable for a reasonable adjustment claim should not include compensation for loss of a job which flows from the failure to make the adjustments.
The EAT also firmly rejected an argument by the employer which might have imported Malcolm-type considerations into reasonable adjustment claims. The EAT accepted that the claimant was at a substantial disadvantage even if other employees had previously been dismissed after a nine month period of absence. It was not necessary for her to satisfy the tribunal that someone who did not have a disability but whose circumstances were otherwise the same as hers would have been treated differently. “To hold otherwise, in our judgment, would defeat the purpose of the Disability Discrimination legislation.”
