In the case of Johnson v Manpower Direct (Manpower), the Employment Appeal Tribunal considered whether the Employment Tribunal (EAT) had made a mistake, by not raising a point to suggest an adjustment that the employer should have made, when the point was not obvious or significant and neither of the parties had raised it in the hearing.

Facts of the case

Mr Johnson was employed by Manpower, where he was placed with an employer (the London Borough of Barking and Dagenham (LBBD)) as a security officer with some CCTV duties. Mr Johnson suffered with mobility problems due to issues with his knee and was unable to carry out duties which involved walking or climbing stairs. It was not in dispute that Mr Johnson was disabled.

Manpower advertised a job for a CCTV operator on behalf of LBBD, with a requirement that the successful applicant needed to have a minimum of one year’s experience working in a CCTV control room. Mr Johnson did not have the necessary experience for this role and was informed at interview stage that the job being made available to him was for a security officer although he would also have CCTV responsibilities.

Role restrictions

Mr Johnson accepted the role and began security duties which involved patrolling and climbing stairs. He then informed Manpower that, whilst he was still interested in CCTV work, he could not undertake further security assignments because of his mobility problem. This was the first time that Manpower was made aware of Mr Johnson’s disability and as a result, Manpower restricted Mr Johnson’s work to a location with fewer stairs.

On 13 January 2012, there was a meeting between Mr Johnson and Manpower to discuss his inability to carry out mobile security patrols, and although Manpower agreed to continue giving Mr Johnson CCTV duties wherever possible, there was no full-time CCTV operator position available to offer him. Mr Johnson subsequently left Manpower and claimed constructive unfair dismissal, which failed as he did not have the qualifying service (2 years) to claim for this. Mr Johnson also brought claims for failure to make reasonable adjustments for his disability and indirect disability discrimination.

Employment Tribunal decision in the case

The tribunal held that in order to be offered CCTV work, Manpower required its security officers to undertake walking duties in order to inspect and secure its clients premises.

The tribunal acknowledged that Mr Johnson did not have the minimum one year’s experience required for the CCTV operative position at LBBD and so he was not qualified to apply for a full-time position. The tribunal also decided that Manpower had discharged its duty to make reasonable adjustments for Mr Johnson’s disability by checking whether any alternative full-time CCTV positions were available and not finding any.

The tribunal decided that it would not have been a reasonable adjustment for Manpower to create a CCTV position especially for Mr Johnson due to his disability. This was because:

  • Mr Johnson did not have the relevant qualification or previous experience required by LBBD for the CCTV Position; and
  • LBBD had expressed concerns with Mr Johnson’s performance as a CCTV operator.

The tribunal dismissed Mr Johnson’s claims for failure to make reasonable adjustments for his disability and indirect disability discrimination.

Mr Johnson’s appeal to the Employment Appeal Tribunal

Mr Johnson appealed to the EAT stating that he did not have legal representation at the employment tribunal hearing, and that the tribunal was under an obligation to raise the point that Manpower should have made representations to LBBD to waive the requirement for one year’s experience to be a full-time CCTV operative. Mr Johnson argued that the tribunal’s failure to raise this point as a potential reasonable adjustment for his disability was an error of law.

Decision of the Employment Appeal Tribunal in the case

The EAT dismissed Mr Johnson’s appeal but acknowledged that it is difficult to know how far a tribunal should go in assisting those without legal representation. The EAT decided that Mr Johnson’s point (that Manpower should have made representations to LBBD to waive the requirement for one year’s experience to be a full-time CCTV operative as a potential reasonable adjustment for Mr Johnson’s disability) was not one that the tribunal had been bound to deal with and as such, the tribunal’s failure to do so did not amount to an error of law.

The meaning of the Employment Appeal Tribunal’s decision in the case

A point must be obvious or significant to the case for the employment tribunal to have a duty to mention it in the hearing to assist claimants who don’t have legal representation. In this particular case it is questionable whether the suggestion that Manpower should have asked LBBD to consider changing its requirements for the job to alleviate the disadvantage to the disabled employee (Mr Johnson) was indeed so obscure and unimportant that it should not have been flagged up to Mr Johnson by the employment tribunal.

Crucially, this demonstrates the risk that a claimant faces when they pursue an employment tribunal claim without legal representation and that the level of assistance that an employment tribunal can give to claimants without legal representation is not an exact science, and each case will turn on its facts.

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