C succeeded in a claim of disability discrimination in the ET. R appealed firstly on the basis that the ET had focused on what adjustments R had considered rather than what adjustments it should have made. Secondly R argued that the ET failed to set out the steps R should have taken to prevent the PCP causing the disadvantage.
C was a flight supervisor who became disabled as a result of slipping on some stairs. R moved C into an administrative role but later, following a TUPE transfer C was told that it was R’s policy that flight staff were only placed in administrative roles if they were pregnant and C was placed on long term sick leave. After 7 meetings to discuss C’s attendance R terminated C on the grounds of incapability. During this time a number of alternative roles arose but R did not consider that they were suitable. However, R neither considered nor produced any evidence about what adjustments could have been made to those roles to make them more suitable. Furthermore R did not consider or produce any evidence about whether C could be accommodated in any other way.
The ET held that the PCP was that, in order to remain in employment, C had to be physically able to do her work and that therefore her comparators were others who were able to do the work and were not liable to be dismissed. The ET was scathing about R’s approach to dealing with C’s disability and held that R had not even considered its duties under the DDA even though it ought to have known that C was disabled.
HHJ Birtles rejected the argument that the ET focused on what effort R had made rather than on what had actually been done. The ET had carefully considered all the evidence, including what had been done and what had not been done. HHJ Birtles held that the comments about R’s failure to even consider reasonable adjustments simply reflected the fact that it was surprising that an organization of R’s size simply shut its eyes to the possibility of C being disabled.
HHJ Birtles rejected R’s defence that no specific post had been identified by the ET or C. His Honour stated at paragraph 27 “It is not for the employee to suggest jobs. It is not for the employee to suggest what adjustments could be made. It is for the employer to do so. The duty is on the employer to make the investigation. That is for the very obvious and sensible reason that those are matters which are within the employer’s knowledge.”
HHJ BIrtles’ comments in para.27 appear to contradict the numerous authorities following Tarbuck v Sainsbury’s Supermarket  IRLR 664. However the judgment could arguably be explained by a proper application of the burden of proof (cf: Project Management Institute v Latif  IRLR 579). When rejecting R’s appeal His Honour relied upon the paucity of evidence produced by R. R had failed to explain why the vacancies (or other arrangements) that existed could not be modified so that they were suitable. This requirement for R to explain its conduct is consistent with C having discharged the burden of proof and in this context HHJ judgment para. 27 is not so controversial as it seems.
The full transcript can be found here: http://www.bailii.org/uk/cases/UKEAT/2010/0292_10_0311.html