The Employment Appeal Tribunal (EAT) has held in Parnell v Royal Mail Group Ltd that an employment tribunal was entitled to dismiss a claimant's disability discrimination claims despite an earlier tribunal finding that the respondent had failed to make reasonable adjustments.
The claimant, who had anxiety and depression, made a bullying and harassment complaint against his manager which was investigated and then dismissed after it was concluded that the allegations had been made in bad faith. The claimant then had misconduct proceedings taken against him resulting in a two-year warning issued in April 2018. Prior to the warning he had commenced long-term sick leave and then refused to return to work until the warning was rescinded. When the warning expired in 2020 the claimant was invited to a meeting to discuss possible adjustments to support his return but did not attend. He was subsequently dismissed by the respondent who concluded that there had been an irretrievable breakdown of trust and confidence, and that there was nothing it could do to facilitate a return to work.
The claimant then brought 31 claims, which were heard by two tribunals. These were divided into two time periods; the first tribunal heard the claims relating to events during his employment until early 2020, and the second heard the claims arising from subsequent events and focused on the absence management process and dismissal. The first tribunal upheld a claim for a failure to make reasonable adjustments due to the respondent not removing the warning or reviewing the bad faith finding. The second tribunal dismissed his reasonable adjustments, discrimination arising from disability and unfair dismissal claims. He appealed this decision arguing that the second tribunal should have had more regard to the first tribunal's findings.
The EAT dismissed the appeal. The second tribunal had been required to make its own decision about a different time period. It had found that removing the warning would not have been a reasonable adjustment in the time period under consideration as the warning had expired by this time. In relation to the discrimination arising from disability claim, the tribunal had not taken the correct approach when it found that the dismissal was not unfavourable treatment. However it had been correct to find that any unfavourable treatment was a proportionate means of achieving a legitimate aim and that, by the time period in question, removing the warning (which had expired) would not have been a reasonable adjustment and there were no reasonable adjustments that could have been made that would have enabled the claimant to return to work.
In terms of the unfair dismissal claim the second tribunal was bound to consider the reasonableness of the decision to dismiss at the time it was taken and it had been permissible for it to find that the position had moved on from that being considered by the first tribunal.
Take note: Although this decision was very much dependent on the facts of the case it does show that, when a tribunal is considering a duty to make reasonable adjustments, it will focus on the time period in question in determining whether the adjustments would have been reasonable. Here it found that there were no reasonable adjustments which would have enabled the claimant to return to work.
