The Equality Act 2010 states that employers are under a duty to make reasonable adjustments for disabled workers. In Thompson v Vale of Glamorgan Council, the Employment Appeal Tribunal (EAT) held that tribunals must undertake an objective assessment of the effect of the person’s disabilities on their work before deciding whether it was reasonable for the employer to have made the adjustments or not.
Ms Thompson had worked as a Welsh language teacher at Barry Comprehensive School since 1999. In April 2013, she was placed on an informal capability procedure because of concerns about her lesson planning and classroom management. Her teaching was also singled out for criticism in a report published a month later by the Welsh inspectorate.
In January 2014, she was placed on the formal capability procedure. At the stage three review meeting in September 2015, it was suggested that her poor performance might be linked to her dyslexia and her hearing impairment (which had worsened since a road accident in March 2012). The school obtained various medical reports which concluded that her conditions were “causing an adverse effect on her ability to fulfil her role”.
At the resumed stage three review meeting in November 2015, the reports were discussed but her case was referred to the school’s governing body with a recommendation to dismiss. The panel met in December, but the meeting was adjourned so that it could gather further information. She was dismissed on 29 February 2016 in her absence and her appeal was rejected.
She brought claims alleging unfair dismissal and disability discrimination including discrimination by failing to make reasonable adjustments.
Dismissing her claim for unfair dismissal, the tribunal held that the reason for dismissal was the poor quality of her teaching after “an exhaustive capability procedure which was scrupulously honest and fair”. She had been given ample opportunity to improve her performance and had also been warned that a failure to do so might result in her dismissal.
It also dismissed Ms Thompson’s complaints of direct disability discrimination and harassment on the basis that there was no evidence to support her argument that her dismissal was a sham nor that it was the consequence of a conspiracy.
Ms Thompson appealed, arguing that the tribunal had not taken the relevant evidence into account when deciding whether her disability put her at a substantial disadvantage. As a result, its conclusion that no reasonable adjustments should have been made could not be sustained, rendering the decision to dismiss her untenable. In addition, she argued that the tribunal had failed to consider properly whether the dismissal was unfair, given that the decision was taken before the steps contemplated at the meeting of the panel in December 2015 had taken place.
The EAT allowed her appeal in relation to the reasonable adjustments claim, given that the tribunal had failed to undertake an objective assessment of the effect of Ms Thompson’s disabilities on her work as a teacher or performance in the capability procedure from 2013 onwards. As a result, the conclusion that it was not reasonably necessary to make any of the suggested adjustments could not be supported, not least because it had not assessed the likely effect, cost, practicality and so forth of any of them.
As this error in relation to the reasonable adjustments claim might have impacted on the unfair dismissal complaint, the EAT also allowed the appeal in relation to the rejection of that claim and remitted both for consideration to a fresh tribunal.
This case underlines the duty of tribunals to carry out a detailed and systematic analysis of the evidence in relation to the question of reasonable adjustments, rather than simply accepting the employer’s witness evidence at face value.