In a judgment handed down on 9th September the EAT (HHJ James Tayler) dismissed the appellant employee’s appeal against the ET’s dismissal of her claims of disability discrimination (ss. 15 and 20/21 Equality Act 2010). The appellant was employed in a manual role at the respondent’s Barnard Castle site. She was a disabled person by reason of rheumatoid arthritis which led to prolonged periods of absence. Occupational health advised that the she should be transferred to a sedentary role. No such role being available, the appellant was dismissed in accordance with the respondent’s attendance policy.
In a majority decision the North Shields ET dismissed her discrimination arising from disability claim on the basis that the employer had established its s.15(1)(b) justification defence (its legitimate aim being requiring staff to maintain consistent levels of attendance at work). The reasonable adjustments complaint was dismissed in circumstances where the employee had not contended that a reasonable adjustment would be transferring her to a sedentary role.
On appeal, with new representation, the focus of the appellant’s case changed in that she specified a particular position (First Line Leader or “FLL”) which it was contended she should have been transferred to. However, this was not how the case had been put at first instance. There was no mention of the FLL role in the agreed list of issues.
The importance of a workable list of issues was emphasised by the EAT:
“When engaged in case management it is easy to become beguiled by a list of issues that is reasonably concise and well set out. A list of issues is a tool to assist the tribunal to do its job and it is always worth considering carefully whether it actually works. Where the parties are represented it is the representatives that bear the principle responsibility for ensuring that the list of issues is up to the job.” 
“While it is for the employer to assess what reasonable adjustments should be made, and an employment tribunal is not limited to considering only those adjustments that the claimant asserted should have been made, generally where a party is legally represented the tribunal can expect that the representative will have highlighted the adjustments contended for.” 
In the EAT’s judgment the ET could not be criticised for following the structure of an agreed list of issues and determining the claim accordingly, even though, “The particularisation and agreed list of issues did much to obscure the straightforward underlying claim and resulted in a structure to the judgment that is difficult to follow in places.” 
However, ultimately the appellant had not suffered any injustice as it was clear from the ET’s findings that the FLL was not suitable for redeployment, irrespective of the way her case had been put.
In summary, the judgment illustrates the importance of a legally-coherent list of issues in ET proceedings, particularly in cases of disability discrimination given their potential complexity.
David Mitchell (instructed by Richard Woodhead and Priyesh Dave at Eversheds Sutherland (International) LLP, Cardiff) appeared for the successful respondent.