The importance of considering reasonable adjustments – BM Insights

Employment Tribunal (ET)

The claimant brought a complaint of unfair dismissal and claims under the Equality Act 2010, specifically, discrimination arising from disability (section 15) and failure to comply with the duty to make  reasonable adjustments (section 20). A key part of his case was that by the time of his appeal in May 2018, the merger was expected to take place the following month and it would have been a reasonable adjustment to keep him in employment for that short time. Further, the decision to dismiss was not proportionate or justified for the purposes of his section 15 claim.

The ET held that in the absence of an alternative position, the respondent was not required to create a position for the claimant nor was it expected to bump employees out of their job. The ET was satisfied that at the time, there was no relevant alternative employment that the claimant could have done, and so the dismissal was a proportionate means of achieving a legitimate aim, in particular, ensuring the efficient and economic operation of the delivery office.

As to the reasonable adjustment claim, the relevant provision, criterion or practice under the Equality Act 2010 was the requirement for the claimant to work outside as a delivery postman. The claimant could no longer undertake this which clearly put him at a substantial disadvantage. However, the claimant was doing a supernumerary role that had been created temporarily for him, with no alternative jobs available as a reasonable adjustment with or without a merger. Therefore, the reasonable adjustment claim failed as it would be unreasonable to keep the claimant in a supernumerary role “forever”.

The ET also held that there was a potentially fair reason to dismiss for capability, and that whilst it might not be a counsel of perfection, the process followed by the respondent was adequate. Enquiries were made but no vacancies were found to be available, and the merger was not going to occur in the foreseeable future. It was therefore held that it was reasonable of the respondent, based on the information available to them at the time, to dismiss the claimant.

As a result, all three claims were dismissed by the ET.