Nottingham City Transport Ltd v Harvey UKEAT/0032/12/JOJ

C claimed that R had failed to make reasonable adjustments to its disciplinary process. The ET upheld his
claim, finding that R had a practice of not investigating cases properly or considering mitigating
circumstances. R appealed.

Facts

C worked for R from 2001. He had depression which amounted to a disability. His depression caused him
frequently to be absent from work and he had a very poor attendance record. After a period off sick he
commenced a phased return. Cleft early on three occasions but handed in timesheets showing that he had
worked his full hours. A meeting to review the progress of his return to work was used to discuss his leaving
early. C became angry when it was raised and walked out. However, the meeting ended amicably. The
next day R started disciplinary proceedings as a result of the inaccuracy of C’s timesheets. C was eventually
dismissed as a result of those proceedings. The ET held that this was unfair because R had not held a
reasonable investigation into why the C had behaved as he did and did not consider mitigating
circumstances when disciplining a disabled employee. The ET also held that R had unreasonably failed to
make adjustments in the light of C’s disability.

Held

The Appeal was allowed. The ET had wrongly identified the PCP as the employer’s disciplinary procedures
and held that these could reasonably have been adjusted by investigating reasonably and considering
personal mitigation arising out of disability, and by not dismissing C. It was conceded in the appeal that
there was no evidence before the ET that it was the employer’s practice was to ignore mitigation or to fail
to carry out a reasonable investigation. The ET had therefore wrongly identified the “practice” and had not
addressed the relevant questions in Environment Agency v Rowan [2008] ICR 218.

Langstaff J makes some interesting comments about the nature of PCPs.
He stated that a one-off
application of the Respondent’s disciplinary process could not, in the circumstances of this case, reasonably
be regarded as a practice; there would have to be evidence of some more general repetition.

Comment

It’s like waiting for buses. You don’t see a decision on what qualifies as a PCP for years and suddenly they
all come along at once! It has been clear for some time that there is a need to identify the PCP but
gradually the question of what can qualify as a PCP is being fleshed out. In this case Langstaff J’s apparent
requirement for the PCP to be more than a one-off is interesting. Carphone Warehouse v Martin is a similar case.

The full transcript can be found here