Owain Rhys James recently appeared on behalf of the City of Cardiff Council before the Employment Appeals Tribunal.
The appeal arose from the question of who the appropriate comparator should have been in a disability discrimination case. The claim was originally heard by the Employment Tribunal in Cardiff in June 2015. The ET applied the comparator as required by the case law then applicable, namely Griffiths v Secretary of State for Work and Pensions UKEAT/0372/13/JOJ. The claim was dismissed on the basis that the Claimant’s position was no different to that of a non-disabled worker who had been absent for the same period of time and had the same work relations difficulties as the Claimant.
Following the judgment of the ET, the Court of Appeal's judgment in Griffiths v Secretary of State for Work and Pensions  IRLR 216 was handed down. On appeal, Mr Justice Kerr held that:
"19. The first ground of appeal is that the Tribunal applied the wrong test when considering the reasonable adjustments issues. The Tribunal decided that it was bound by the decision of the Appeal Tribunal in Griffiths. The Employment Judge did not like that decision and recorded that his decision, at any rate, would have been different on some issues were the Tribunal not bound by it.
20. The Court of Appeal has since decided that the approach of the Appeal Tribunal in Griffiths was wrong on two counts, one of which was:
“48. … to assume that the ruling of the House of Lords in the Malcolm case, which was concerned with the nature of the appropriate comparison under the old concept of disability-related discrimination, is applicable to the obligation to make reasonable adjustments. …” (per Elias LJ at paragraph 48).
21. In short, Elias LJ explained at paragraphs 49 to 63 why that was not so. The approach of the majority in London Borough of Lewisham v Malcolm  IRLR 700 (when the legislation was differently worded) was that the disabled tenant who because of his disability needed to sublet in breach of his tenancy, had not been discriminated against by the giving of notice to terminate it, because the correct comparison was with an able bodied person who had sublet, not with a person who had not sublet.
22. Griffiths concerned treatment under an absence from work policy, under which able bodied and disabled employees were treated in the same way but disabled employees were more likely to attract sanctions under it because their absences would probably be more frequent. Elias LJ rejected the approach in Malcolm; the wording of section 20 of the 2010 Act did not support that approach, and the disadvantage for the disabled employee is “not eliminated if the PCP [provision, criterion or practice] bites harder on the disabled …” (paragraph 58).
23. Elias LJ (McCombe and Richards LJJ agreeing) held, however, that the appeal should be dismissed on the single ground that the Tribunal had been entitled to hold that “the proposed adjustments were not steps which the employer could reasonably be expected to take” (paragraph 82). Elias LJ’s analysis was therefore technically obiter but it is clearly authoritative and must be followed.
24. Mr Smith, for the Claimant, is right to submit that the Court of Appeal’s analysis vindicates the Judge’s discontent with the shackles that bound him and the lay members. The decision of the Tribunal below must therefore be tested for durability, applying the correct approach."
The judgment continues to find that:
"40. I am satisfied that the Tribunal’s decision to dismiss the claim under section 15 was marred by the errors that afflicted its decision in relation to reasonable adjustments, and in particular the last of the adjustments relied upon by the Claimant, namely that of redeploying her. The section 15 claim must therefore, as was common ground before me today, be remitted for reconsideration by the same Tribunal."
Further, the judgment held that the unfair dismissal claim ought to be remitted so that the correct test be applied:
"43. A dismissal can be fair, though in breach of contract, or unfair, though compliant with the employee’s contract. The issues are different. So it is in discrimination law. A discriminatory dismissal may be fair; a non-discriminatory dismissal may be unfair. Whether that is so on the facts, depends on applying to those facts the differing statutory tests applicable to the different causes of action.
44. I am unaware of any authority for the Tribunal’s proposition in the last two lines of its decision that “it cannot be reasonable to dismiss an employee for a discriminatory reason”. I regard that proposition as contrary to principle and statute. In my judgment, the unfair dismissal claim must be remitted for reconsideration on that ground, and not on the ground that the discrimination claims are in part to be remitted."
The judgment can be found here.
The headnote reads as follows:
Perratt v City of Cardiff Council
DISABILITY DISCRIMINATION - Disability related discrimination
DISABILITY DISCRIMINATION - Reasonable adjustments
UNFAIR DISMISSAL - Reasonableness of dismissal
The Tribunal below was required under a decision of the Appeal Tribunal, subsequently (after the Tribunal’s decision) found by the Court of Appeal to have been in error, to apply the wrong comparison when determining claims for breach of the duty to make reasonable adjustments.
Those issues that may have been decided differently must be remitted to the same Tribunal for reconsideration in the light of the Court of Appeal’s decision in Griffiths v Secretary of State for Work and Pensions  IRLR 216. That included the Appellant’s claim under section 15 of the Equality Act 2010 for discrimination constituting unfavourable treatment because of something arising in consequence of a disability.
The Tribunal had erred by failing to consider the Appellant’s unfair dismissal claim independently of her claims for disability discrimination. Dismissal for a discriminatory reason is not necessarily unfair; whether it is or not depends on application of the tests in section 98 of the Employment Rights Act 1996.