Environment Agency v Rowan

EAT: Judge Serota QC, Mr D Norman and Mr M Worthington: 1 November 2007

The claimant, a part-time clerk/typist, suffered from a deteriorating back injury. After she commencing long-term sickness absence, she requested to be allowed to work from home, but the employers took the view that it would not be appropriate. She subsequently resigned. An employment tribunal, upholding a claim of disability discrimination, found that, by refusing to consider the claimant's requests for a trial period of home working, the employers were in breach of their duty to make reasonable adjustments under section 4A(1) of the Disability Discrimination Act 1995.

The employers appealed, contending, inter alia, that in its reasons the tribunal had failed to identify the nature and extent of the substantial disadvantage suffered by the claimant and how the proposed adjustment would have prevented it.

The Employment Appeal Tribunal held:
(1) When considering a claim that an employer had discriminated against an employee pursuant to sections 3A(2) and 4A(1) of the Disability Discrimination Act 1995 by failing to comply with a duty to make reasonable adjustments, a tribunal could not properly judge whether any proposed adjustment was reasonable without first identifying the provision, criterion or practice applied by the employer, or the relevant physical features of the premises, the identity of non-disabled comparators, where appropriate, and the nature and extent of the substantial disadvantage suffered by the claimant. Identification of the substantial disadvantage might involve looking at the cumulative effect of both the provision, criterion or practice and the physical nature of the premises.
(2) It was reasonably clear that the provision, criterion or practice found by the tribunal to place the claimant at a disadvantage was the requirement to work in an office, but the tribunal had failed to identify clearly the nature and extent of that disadvantage, and in the absence of such findings the tribunal was unable to determine what adjustments were reasonable to prevent the disadvantage, or to explain how the proposed adjustment, a trial period of home working, would alleviate it. In a case where there was powerful evidence to suggest that home working was not a reasonable adjustment, no explanation had been given by the tribunal why the employers’ evidence and explanation had been rejected, and the matter would be remitted to a different tribunal for rehearing.

The appeal was allowed.

Appearances: Sarah Moore (Environment Agency Legal Services, Bristol) for the employers; Simon John (Shawcross, Hereford) for the claimant.