Under the DDA 1995 (whose provisions on reasonable adjustments are substantially mirrored in the Equality Act 2010) the duty to make reasonable adjustments was triggered where a provision, criteria or practice (‘PCP’) applied by the employer, or any physical feature of the employer’s premises, placed a disabled person at a substantial disadvantage in comparison with non-disabled persons. Once triggered, the duty obliged the employer to make such adjustments as were reasonable to prevent the PCP or physical feature having that effect.

The EAT’s decision is a useful reminder that reasonable adjustments are primarily concerned not with making the disabled person better, but with enabling him or her to remain in work or return to work. The problem for the claimant in this case was that, given her unfitness for any productive work, neither of the proposed adjustments (rehabilitative work in the form of light duties, or a career break) would have mitigated the effect of the PCP- namely the expectation that she would perform her full role within the contracted hours.

The facts of the case were that S was signed off sick in March 2007 with a chest infection and diagnosed with CFS in September. The Trust accepted that S was disabled for the purposes of the DDA. During her absence she had several meetings with her manager to see how to get her back to work. She also met with occupational health on several occasions. The Trust warned S on several occasions that her prolonged absence may lead to her eventual dismissal on the grounds of capability. In January 2008 occupational health advised that the Trust should focus on getting S ‘back to work in some capacity (as distinct from doing productive work)’. He suggested a reduction in hours, phased return, change of role, but that she was currently ‘unfit for work of any kind’. In February 2008 occupational health suggested a career break to protect her employment while she recovered. The Trust said it could not support a career break.

By April 2008 S had informed the Trust that she neither wished nor was able to return to her post as a specialist occupational therapist, and that she did not want to return to her former workplace in any capacity as it was ‘too busy’. She could not identify a suitable location to return to, and declined offers of administrative work because of limited IT skills. She refused to take up the Trust’s offer of IT training. The Trust invited S to a meeting in June which she did not attend. The Trust invited her to a further meeting, stating that of she did not attend it might have to consider ’employment options including termination’. In response S resigned stating that the Trust had not accepted the medical advice of her GP or occupational health, and that she had no confidence in the Trust facilitating her eventual return to productive work. She argued that the Trust had failed to make reasonable adjustments to facilitate her return and that she had been constructively dismissed.

At first instance, the Tribunal took the view that the Trust should have made attempts to give S something by way of rehabilitation, even if not productive work, e.g. light duties for two or three hours, two days a week. Accordingly, the Tribunal held that S had been constructively dismissed. The Trust appealed. The Tribunal did not believe a career break was a reasonable adjustment – S appealed on this point.

The EAT upheld the Trust’s appeal, and dismissed S’s appeal. It agreed with the Tribunal that the PCP in this case was the expectation that S would perform her full role within the contracted hours, and that she was therefore placed at a substantial disadvantage because, due to her disability, she was unable to multi-task, deal with clients or set up emotional barriers, and could not work in a noisy environment. Any proposed reasonable adjustments had to be judged against the criteria that they must prevent the PCP from placing her at that substantial disadvantage.

The EAT referred to an earlier EAT decision which held that a phased return to work could be a reasonable adjustment, but that this was not authority for the proposition that rehabilitation was a reasonable adjustment. The EAT held that the Tribunal was wrong to hold that it would have been a reasonable adjustment for the Trust to suggest some ‘light duties’ for S as a form of rehabilitation, since rehabilitation would not mitigate the effects of the PCP. The EAT held that the Trust had acted appropriately, by, for example, offering IT training, which S had declined. The Trust had ascertained that there was no job that S was capable of doing at the time, whether part-time or otherwise. Moreover there was no chance of her returning to her original post. Nor had S disagreed with any of the letters detailing the Trust’s efforts to find her a suitable job. S had decided not to attend two meetings to discuss possible adjustments.

In addition the EAT held that offering a career break would not have amounted to a reasonable adjustment. In the EAT’s view, if the Trust had proposed a career break, S would have had legitimate cause for complaint at being moved from long-term sickness absence with benefits (including, at the time, half pay) to an unpaid career break, which would bot have prevented the disadvantage caused by the PCP, or alleviated her inability to multi-task, deal with clients, or set up emotional barriers.

The EAT held that the Tribunal had erred in finding that S had been constructively dismissed, as not only had the Tribunal’s erroneous finding been based on the Trust’s failure to make reasonable adjustments, but also because it could find no breach of the implied term of trust and confidence by the Trust.

Stobart is a warehousing and logistics service provider. It took over a site in 2008 at which it serviced at least 5 clients. Over time, 3 contracts were lost. Of the two remaining contracts (being for meat storage and delivery) one client’s work was done mainly at night (by the night shift workers) and the other’s work mainly during the day, by different day shift workers. The main contract (for the work during the night) was with a client called Vion. Stobart closed the site, and FJG Logistics Ltd picked up the Vion work. Stobart took the view that the 35 employees who were engaged wholly (or for 50%+) of their time on Vion work on the night shift should transfer to FJG pursuant to TUPE. FJG disagreed and refused to treat any of the employees as transferring to it. The EAT agreed with FJG that there was no service provision change and therefore no employees transferred. The consequence of this decision is that the employees had been dismissed by Stobart unfairly and with no notice.

The EAT said that there needs to be analytical distinction between an organised grouping of employees (TUPE, Reg 3 ((3) (a)), on the one hand and, on the other, whether employees are assigned to that organised grouping (Reg (4 (1)).

The EAT held that it is first necessary to identify whether there is an organised grouping of employees before asking the question of which employees are assigned to it. The essential point in this case was that the employees were “organised” as to their shifts, not as to a particular customer, so there was not an organised grouping of employees which had as its principal purpose the carrying out of activities on behalf of a particular customer. The EAT said that a paradigm example of an organised grouping of employees would be where there was a particular client “team” dedicated to the client. Such was not the case here.

In the case of Samsung Electronics (UK) v Monte D’Cruz, the Claimant worked in the Print division of Samsung as one of four senior managers. Samsung proposed to reorganize by combining the four roles into a single head of department position. The Claimant applied for the Head position, but was unsuccessful. He and another ‘at risk’ employee applied for a lower position of a Team Leader role. They were both unsuccessful and an external candidate was appointed. The Claimant was subsequently made redundant and claimed unfair dismissal

The Employment Tribunal ruled that redundancy was the reason for the Claimant’s dismissal, but that the dismissal was unfair on two procedural grounds: firstly the consultation had been inadequate and secondly that Samsung’s approach to alternative employment was flawed, particularly regarding the objectivity of the criteria used for assessing the Claimant’s suitability for the Team Leader role. The Claimant was awarded over £60,000 in compensation.

The EAT disagreed with the Tribunal’s view regarding the consultation and confirmed that Samsung had provided relevant and adequate information to the Claimant at appropriate points in the process.

In respect of the appointment process for the Team Leader role, the Employment Tribunal was critical of Samsung’s decision to assess the internal candidates against ten mostly subjective competencies that were normally used as part of the annual appraisal process, including creativity, challenge, strategic focus, simplicity, self-control/empowerment, crisis awareness, and continuous innovation. Samsung used these criteria rather than the person specification of the new post and the Employment Tribunal considered them to be too subjective. The EAT found that, whilst best practice would be for an employer to tell the applicants what assessment criteria would be used and how these would be judged, failure to do so would not render the interview decision unfair. The EAT was satisfied that there is no obligation on an employer to limit themselves only to those factors that are capable of objective measurement in considering applicants for alternative employment.

This case shows the difference in approach that may be used when deciding on selection criteria for redundancy selection, and the criteria that can be used in deciding whether a candidate is suitable for an alternative role. In order to be reasonable, the redundancy selection criteria should be both objective and measurable, and not based on someone’s personal opinion. However, when an employee at risk of redundancy is being considered for alternative employment, an employer has reasonable flexibility when assessing his/her suitability for the new role.