In Tarbuck v Sainsbury Supermarkets Ltd (2006, IRLR 664; IDS 811), the Employment Appeal Tribunal (EAT) said that employers do not have to consult with employees before making the adjustments.
What were the basic facts?
Mrs Tarbuck worked as a business analyst and IT project manager for Sainsbury. In March 2003, it was agreed after she had been off work with depression, that she should return on a part time basis to a fixed term assignment with support from the occupational health department.
In June that year she was told that she was “at risk” of redundancy, which entitled her to priority status in applying for vacant posts. She argued that the stress of being in the “at risk” category would affect her return to work, and as a result she was removed from the list.
She then applied unsuccessfully for a finance systems job and complained that she had not been given priority status for the application. In October, she was offered a three month assignment but rejected it. Shortly afterwards, she was placed in the “at risk” category again, and was given formal notice of redundancy in November. Her employment ended in February 2004.
Mrs Tarbuck complained of disability discrimination and unfair dismissal.
What did the tribunal decide?
The tribunal said that Sainsbury had failed, among other things, to consult with Mrs Tarbuck, following her objection to being put in the “at risk” category in early July 2003.
Following the decision in Mid-Staffordshire General Hospitals NHS Trust v Cambridge, the tribunal said the company should have done this “to agree the particular steps to be taken to eliminate her disadvantage in the competition for jobs”.
Mrs Tarbuck appealed parts of the tribunal decision, arguing that her employer should have given her priority status when she applied for the finance systems job. The employers cross-appealed.
What did the EAT decide about Mrs Tarbuck’s appeal?
The EAT decided that the tribunal had not been clear in its reasoning when it held that it was not a reasonable adjustment for Sainsbury to give Mrs Tarbuck priority status again when applying for the finance system job. It therefore allowed her appeal on this point and remitted it to the tribunal for further consideration.
However, it said that the tribunal had correctly applied the shifting burden of proof under the DDA, and that it was not necessary to ask Sainsbury to explain why they had failed to interview Mrs Tarbuck for another post that it ultimately did not fill.
The company was not required to artificially create a job for a disabled person. She had not, therefore, been treated less favourably and the company had not failed to make a relevant adjustment in this regard.
What did the EAT decide about Sainsbury’s appeal?
The EAT then considered Sainsbury’s appeal. It said the tribunal had been wrong to conclude that they had failed to make a reasonable adjustment when they did not consult with her over what help she might need in finding alternative work. This issue had not been raised by either of the parties and so the tribunal could not raise this point unilaterally.
The EAT said that there is no separate and distinct duty of reasonable adjustment on an employer to consult the disabled employee about what adjustments they should make (although it would be good practice to do so). The only relevant question was whether the employer had complied with their obligations or not. That being so, Mid-Staffordshire General Hospitals NHS Trust v Cambridge had been incorrectly decided.