Veitch Penny LLP - Exeter | Crediton, Devon

Case

Tarbuck v Sainsbury’s Supermarkets Ltd
Employment Appeal Tribunal - 25 May 2006

Issues

(1) Unfair dismissal
(2) Disability
(3) Reasonable adjustments

Facts

Dr Tarbuck was employed as a business analyst and IT project manager for Sainsbury’s. She was absent from work following diagnosis of ulcerative colitis and depression. Claims of disability and sex discrimination were brought but they were settled by way of settlement agreement in October 2002. Following the agreement, Tarbuck returned to work.

She was assigned a temporary role within her team. Shortly afterwards, she was advised that she was at risk of redundancy, as the employer was commencing a restructure and redundancy process which affected Dr Tarbuck. At risk employees were given priority in applying for internal vacancies. However, Dr Tarbuck had appealed against her at risk status because she felt it prevented her returning to work and it unfairly disadvantaged her. Her appeal was successful and this meant that she was no longer given any priority when applying for internal vacancies. She was unsuccessful in her application for the position of project manager in finance systems. She was then placed at risk of redundancy a second time. She went on sick leave until her employment was terminated by way of redundancy on 2 February 2004.

Dr Tarbuck brought claims of unfair dismissal and disability discrimination. One of the central issues to be considered was whether her employer had failed to make a reasonable adjustment for her by failing to consult her over alternative employment. The Tribunal found in Dr Tarbuck’s favour and the employer appealed.

Decision

The Employment Appeal Tribunal (EAT) upheld the decision. It found that a failure to consult about reasonable adjustments could not in itself constitute a breach of the duty to make reasonable adjustment for disabled employees. If no reasonable adjustments can be made for an employee then the employer cannot be found to have acted unlawfully, even if it had failed to consider the issue and discuss it with the employee.

Comments

This case is in conflict with an earlier EAT authority and the code of practice issued by the Disability Rights Commission (now part of the Equality & Human Rights Commission). Consequently, a decision from a higher court will be required to determine the issue once and for all. As a result, it must always be advisable for employers to continue to consult with their disabled employees to ensure that they have ascertained whether adjustments are necessary. If necessary, they should consult with appropriate advisers who have expert knowledge of the reasonable adjustments which may be undertaken in each specific case.


Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.