The Employment Appeal Tribunal in the case of Howorth (“H”) v North Lancashire Teaching PCT(“the Trust”) had to decide whether there was a failure to make reasonable adjustments in dismissing a health visitor following her conviction for theft, dangerous driving and battery.
H was employed by the Trust as a Health Visitor from 1997 - 2009. Up until the events that led to her dismissal H’s employment had been incident free.
Following a series of emotional and difficult events in H’s life, an event took place in July 2008 when she left a supermarket without paying for her goods, forced her way from the store and drove away after trapping one person with her car door and with a shopper on her bonnet. H had no recollection of these events and it was accepted that she was suffering from automatism.
On legal advice H pleaded guilty to the offences of theft, dangerous driving and battery and received a 12 month conditional discharge.
Subsequently H was disciplined and dismissed from her job in November 2008 although the hearing officer did consider alternatives to dismissal in making the decision such as downgrading or transferring. The hearing officer concluded that the risks of continuing employment were too great.
H brought claims for unfair dismissal and failure to make reasonable adjustments for her disability.
Employment Tribunal (“ET”)
The ET found that the dismissal was fair but the Trust’s failure to consider alternatives to dismissal was a failure to make reasonable adjustments for her disability, even though they found that the respondent had considered alternative posts. At the remedies hearing, the ET found that no adjustment could have succeeded in keeping H in work.
Employment Appeal Tribunal (“EAT”)
The EAT allowed the Trust’s appeal against the reasonable adjustments ruling. There had been an error of law given that no adjustment could have succeeded and therefore there was no failure to make reasonable adjustments. An employer can only be in breach of the duty to make reasonable adjustments if any adjustment would have avoided the disadvantage caused to the employee.
This case is largely fact sensitive however, it does show that in limited circumstances employers can avoid a finding that they have failed to make reasonable adjustments where no adjustments would have avoided a substantial disadvantage to the disabled person. However, best practice would dictate that employers still consider what adjustments could be made and their reasonableness in all cases.