||All England Reporter
|| All ER (D) 242 (Dec)
||Employment Appeal Tribunal
Judge McMullen QC, Mr M Sibbald and Mr R Thomson
||Ronald Mackay of Burness LLP, Glasgow, for the employer.
||Linda Marsh (instructed by Harper Macleod LLP, Glasgow) for the employee.
||15 December 2006
Employment - Disability - Discrimination - Employee being certified unfit to work on ground of depression - Employee claiming unlawful disability discrimination - Tribunal allowing claim on ground employer failing to consider making reasonable adjustments for employee - Whether tribunal erring by failing to make finding on justification - Whether duty obliging employer to consider making reasonable adjustments or only to make such - Whether duty being triggered when employee off work with no indication of return date - , s 5(4).
Where an employer appealed against a decision of the employment tribunal, which had allowed a claim for unlawful disability discrimination on the ground that the employer had failed to consider making reasonable adjustments for the employee who suffered with depression, the appeal would be allowed. It had been an error by the tribunal to make no finding on justification, which under the ancien regime was an employer's defence to a finding of breach of duty. The tribunal had erred in recognising that the sole issue in the instant case was the failure of the employer 'to consider' reasonable adjustments, when the duty was one to make reasonable adjustments. Furthermore it was not reasonable for the employer to pursue the possibilities which the tribunal had noted until there was some sign on the horizon that the employee would be returning. The degree of error made it inappropriate for the instant case to be remitted. Accordingly the judgment would be set aside.
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