Secretary of State for Work & Pensions v Macklin

Factual and Procedural Background

This appeal arises from a judgment of an Employment Tribunal chaired by Employment Judge Goodrich, promulgated on 15 May 2007, following a hearing held between 19 February and 2 March 2007. The Tribunal, by majority, upheld the Claimant's claims of disability discrimination in part and unfair dismissal against the Respondent, the Secretary of State for Work and Pensions. The Claimant had been employed by the Respondent since 1 October 1979 and was promoted to SEO in June 2001. She was diagnosed with diabetes in 1989 and depression in late 1998. From 1997 to 2001, she worked on several projects, including the "One" and "Pathfinder" projects, the latter under a line manager named Lisa Potter.

In May 2001, the Claimant faced allegations of bullying and harassment, which resulted in a lengthy disciplinary process but no punitive action. She went off work due to anxiety and depression from 20 September 2001 and never returned before being dismissed on 2 July 2004, following a three-month notice period. During her absence, the Respondent commissioned occupational health reports and maintained contact through a new manager, Sue Venton. The Claimant expressed at a home visit in October 2003 that she did not foresee returning to work and preferred ill-health retirement, which was not supported medically. The dismissal was on grounds of sick absences, and the Claimant was 44 years old at termination.

The Claimant brought claims under the Disability Discrimination Act 1995 (DDA), pre-amendment, alleging failure to make reasonable adjustments during two periods (1997-2001 and 2001-2004), disability-related discrimination in dismissal, and unfair dismissal.

Legal Issues Presented

1. Whether the Employment Tribunal correctly identified and applied the statutory duty under section 6 DDA to make reasonable adjustments during Period 1 (1997-2001) and Period 2 (2001-2004).
2. Whether the Claimant suffered disability-related discrimination in dismissal contrary to section 5 DDA and if such dismissal was justified.
3. Whether the dismissal was fair under section 98(4) Employment Rights Act 1996.
4. The adequacy of the Employment Tribunal's reasons in applying the law to the facts found.

Arguments of the Parties

Respondent's Arguments

• The Employment Tribunal erred in conflating the Claimant's description of working arrangements with the steps the employer ought to have taken, failing to properly identify the relevant arrangements under s6 DDA.
• The Tribunal did not properly apply the statutory step-by-step approach required to determine whether the Claimant was placed at a substantial disadvantage compared to non-disabled comparators.
• The Tribunal failed to demonstrate what substantial disadvantage the Claimant suffered in Period 1 and incorrectly assessed what adjustments would have been reasonable.
• Regarding Period 2, the Tribunal did not answer the critical question of whether the steps they identified would have, on balance, prevented the disadvantage of the Claimant's inability to attend work.
• The findings of failure to make reasonable adjustments are legally flawed, which undermines the findings of disability-related discrimination and unfair dismissal.
• The appeal should be allowed and the matter remitted for a full rehearing before a fresh Employment Tribunal rather than the same Tribunal.

Claimant's Arguments

• The Claimant submitted that if the Tribunal erred in law, the matter should be remitted to the same Employment Tribunal to reconsider the case in light of the correct legal directions.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court focused on the Employment Tribunal's application of the statutory provisions under the Disability Discrimination Act 1995, particularly sections 5 and 6 concerning reasonable adjustments and disability-related discrimination. It emphasized the necessity of a methodical, step-by-step approach: identifying the relevant arrangements imposed by the employer, determining the substantial disadvantage suffered by the disabled employee compared to non-disabled comparators, and then assessing what reasonable adjustments could have prevented that disadvantage.

Regarding Period 1 (1997-2001), the Court found that the Tribunal conflated the Claimant's description of working arrangements with the steps that should have been taken, failing to clearly identify the arrangements and the comparative disadvantage. The Tribunal also failed to demonstrate what substantial disadvantage the Claimant suffered and improperly assessed what adjustments were reasonable without first establishing the duty to make adjustments.

For Period 2 (2001-2004), the Tribunal correctly identified that the requirement to attend work was the relevant arrangement and that the Claimant was at a substantial disadvantage due to depression. However, it failed to answer whether the adjustments proposed would have, on balance, prevented that disadvantage and facilitated the Claimant's return to work. The Claimant's expressed view that she could not foresee returning to work was a relevant factor the Tribunal did not adequately consider.

The Court concluded that the Tribunal's findings on reasonable adjustments for both periods were legally flawed. Consequently, the related findings of disability-related discrimination and unfair dismissal, which depended on the existence of such failures, could not stand. The Court also noted the limited legal argument presented on appeal due to the Claimant's self-representation and the Tribunal's divided view below.

Finally, the Court considered the appropriate remedy. While sympathetic to remitting the case to the same Tribunal, it acknowledged the risks in doing so given the Tribunal's prior division and complexity of the statutory issues. The Court therefore ordered a full rehearing before a fresh Employment Tribunal and encouraged the parties to consider alternative dispute resolution through ACAS.

Holding and Implications

The appeal is allowed and the matter is remitted for a complete rehearing before a fresh Employment Tribunal.

The direct effect is that the prior Employment Tribunal's findings of failure to make reasonable adjustments, disability-related discrimination, and unfair dismissal are set aside. No new precedent is established, but the case underscores the importance of the statutory step-by-step approach to disability discrimination claims and the necessity for clear, reasoned findings by Employment Tribunals. The Court also highlights the potential utility of mediation services such as those provided by ACAS in resolving such disputes.