Does an employment tribunal deciding a reasonable adjustments case have to identify the 'step' for the purposes of section 20(3) of the Equality Act 2010?
Yes, held the EAT in General Dynamics v Carranza.
The Claimant suffered from stomach adhesions. He received a final written warning in September 2011 following 206 days of sickness absence in three years, mainly caused by his disability. He was dismissed in December 2012 after a further three months of sickness, not related to his disability. A majority of the employment tribunal found that the Respondent ought to have disregarded the final written warning and so there had been a failure to make reasonable adjustments.
The EAT overturned the decision and held that the employment tribunal had failed to identify a 'step' which the employer could have taken. It doubted that the mental process of disregarding a warning is such a step, although formally revoking a warning might be. In any event, it also rejected the conclusion that this adjustment would have been reasonable.
The EAT said that it would have been easier to analyse the case as one of discrimination arising from disability because it was not really about taking practical steps to prevent disadvantage. Had the case been put that way it would have been doomed to failure because the dismissal of the Claimant was a proportionate means of achieving the legitimate aim of consistent attendance at work.