Johnson v Manpower Direct (UK) Ltd

LORD JUSTICE ELIAS: This is an application for permission to appeal. The Applicant is disabled under the terms of the Equality Act 2010.

He was employed by Manpower Direct, which provides staff for other organisations. In his case, he was assigned to Barking and Dagenham Local Authority. He was employed as a security officer. In that capacity he had to undertake security duties which required him mainly undertaking security patrols at the clients' sites. He had hoped apparently when he took the job that he would be fit and able to carry out that work.

Part of that work also required that where necessary he would stand in for other permanent staff who may be ill or on holiday and perform what was called CCTV staff work. That did not require him to walk and that was compatible with his disability. He was told that he could not obtain employment in that position because it was a condition of obtaining that job, stipulated by the local authority, that he had at least a year's experience and he had no experience.

When he discovered that he was no longer able to do the job, he asked Manpower Direct to consider him for alternative roles. They did not have enough work for him to do as a CCTV staff cover and they had no other roles available. Therefore, they concluded that they could not continue to employ him.

He alleges that they failed in their obligation to make reasonable adjustments in accordance with section 23 of the Equality Act. There was no specific suggestion by him that anything more should be done, but it is now contended by Mr Jake Dutton, who has argued the case forcefully and carefully on his behalf, that there were two things that could be done.

The first, and what he primarily relied upon, was that Manpower should have contacted the Borough and they should have asked the Borough to dispense with the one year's experience requirement in this case. The Borough may have said no, but it was a reasonable adjustment to have made and it is something that Manpower ought to have done before assuming that he would not be acceptable to the Borough as somebody who could do work as a CCTV operative.

Alternatively, it is suggested that Manpower should have requested the Borough to provide training for the Claimant in order to give him the necessary skills as a CCTV operative.

The first question is whether the Tribunal should have taken of its motion the point that it would have been reasonable for the employers to make this application to the Borough in order to see whether they would be able to accommodate the Applicant.

I am persuaded by Mr Dutton that this point is arguable. I think it difficult, (I am not going to the authorities because it is not necessary), but it is true to say that there is no obligation on a Claimant to suggest possible steps which an employer might take in these circumstances. The Applicant was not represented by a lawyer before the Tribunal. I can see that it might be said that it was something the Tribunal might have picked up because it was obviously critical, the need for a year's experience, and there was, on the face of it, a possibility that the Borough might have dispensed with that application.

What I think makes it an impossible submission in the circumstances of this case is the finding by the Tribunal at paragraph 18 of its decision that the Borough had been dissatisfied with the level of performance of the Applicant. At paragraph 40 of the decision the Tribunal came to its conclusion that it would not have been a reasonable adjustment to create a stand alone CCTV job, firstly because the Claimant did not have the relevant background or experience, but importantly, secondly, because the client had shown dissatisfaction.

It seems to me wholly unrealistic to say that in these circumstances, knowing that, that it was unreasonable for the employers not to go back to the Local Authority and ask them to dispense with the requisite experience. Nor do I think it was reasonable to expect Manpower to ask Barking and Dagenham to provide training in these circumstances because the training would not overcome, in any event, the lack of experience.

So although I do see some force in the first point advanced by Mr Dutton, I think in the circumstances of this case it is quite unreal to think that any approach to the Authority could have resulted in a positive response in favour of the Applicant. Therefore, in those circumstances, it was not unreasonable for Manpower not to take that step.

So for that reason, I do not think there is any realistic prospect in this appeal succeeding and I therefore refuse permission.