Hibbett v The Home Office is another case on the duty to make reasonable adjustments for an employee with a disability, a duty which arises where the employer applies a "provision, criterion or practice" which puts the employee at a substantial disadvantage.

The claimant was accused of misconduct - submitting an expenses claim for the cost of relaxation therapy which her manager had already declined to approve.  (At that point, she had consulted her GP about anxiety and poor sleep but was not at that stage suffering from a disability as defined for the purposes of disability discrimination.)  Prior to the disciplinary hearing she was signed off with anxiety and work-related depression.  The hearing was postponed once but went ahead on the re-scheduled date, regardless of the fact that the claimant had been referred to occupational health but had not yet been seen.

The tribunal found that the subsequent dismissal was unfair but that the failure to delay the disciplinary hearing was not a breach of the duty to make reasonable adjustments because, on the evidence, the claimant had been able to cope with the proceedings; in other words, there had been no disadvantage to her arising from the fact that the hearing was not postponed.

But the EAT overturned this part of the decision and found that it would have been reasonable to delay the disciplinary hearing until the occupational health service report had been obtained.  It was only when medical evidence was received that it was possible for the employer to judge whether the claimant's ability to participate in the hearing was impaired, or whether other adjustments to the hearing would be required.  It was only with the benefit of hindsight that it was clear that the upshot would have been no different except that the decision to dismiss would have been taken a few weeks later.

However, what actually happened would be relevant to the claimant's compensation; the EAT thought that it would be extremely unlikely that anything other than a nominal amount would be awarded for the breach of the duty to make reasonable adjustments, given the finding that the claimant was not in fact disadvantaged by the decision to go ahead.

Nevertheless, the EAT's decision highlights the need for there to be medical evidence about whether a claimant is fit to proceed with a disciplinary hearing, and this should take priority over the understandable desire to minimise delay in the disciplinary process.