Discrimination claim dismissed despite failure to make reasonable adjustments

Background

In the case of Parnell v Royal Mail Group Ltd, the claimant was a postman/driver. He suffered from anxiety and depression. He made allegations against his manager, which led to an investigation. The investigation found that the claimant’s allegations were made in bad faith and as a result, the claimant was given a two year warning.

Before the warning was imposed, the claimant went on long-term sick leave. After the warning had been imposed, he was invited to a meeting to discuss his return to work. The claimant unsuccessfully raised a grievance in respect of his treatment. He subsequently said that the warning was a barrier to his return and should be withdrawn. The respondent did not review or revoke the warning and this resulted in a situation whereby the claimant refused to return to work. Eventually he was dismissed when the respondent concluded that there had been an irretrievable breakdown of trust and confidence between the parties.

The Claimant brought 31 Employment Tribunal claims against the Respondent. These claims included disability discrimination, failure to make reasonable adjustments and unfair dismissal. The claims were split into two tranches to take account of two time periods: one for the period up and including the time when the warning was imposed (First Tribunal), and the second to deal with the absence management procedure and the claimant’s eventual dismissal (Second Tribunal).

First instance decisions

The First Tribunal dismissed the majority of the claimant’s claims but found that the respondent’s failure to review or revoke the two year warning constituted a failure to make reasonable adjustments.  

The claimant relied on the findings of the First Tribunal to support his claims before the Second Tribunal. However, the Second Tribunal dismissed the claims. The claimant appealed to the EAT in respect of the Second Tribunal’s findings on his claims of unfair dismissal, failure to make reasonable adjustments and discrimination arising from disability.

EAT decision

The EAT dismissed the claimant’s appeal on all grounds. The Second Tribunal had taken appropriate account of the findings of the First Tribunal but permissibly reached its own decision on the evidence, in relation to a later time period. During the time period with which the Second Tribunal was concerned, the removal of the warning would not have been a reasonable adjustment because the warning had by then expired and events had moved on. The EAT found that the Second Tribunal was entitled to reach this conclusion.

In respect of the claimant’s claim for discrimination arising from disability, the Second Tribunal was entitled to find that any disadvantage caused to the claimant was a proportionate means of achieving a legitimate aim. The aim in question was for the respondent to ensure regular staff attendance, and the willingness of staff on long-term sick to do all they can to facilitate their return to work. There was no lesser action that would have achieved this legitimate aim.

Learning points

This is an interesting decision which demonstrates the Tribunal’s ability to consider the same issue in separate contexts, particularly where a claim extends over a significant time period. It likewise acts as a useful reminder to employers of the need to consider context at the relevant point in time. In this case, the absence management process and the claimant’s eventual dismissal were rightly considered on their own merit, and the Tribunal was right to conclude that the position had moved on since the time when the two year warning was imposed.

For more information or advice, please contact Alastair Fatemi in our Employment team on 0117 314 5236, or complete the form below.