Phullar v Ofsted: Employment tribunal failures in disability discrimination and unfair dismissal appeal

The Employment Appeal Tribunal has overturned significant portions of an employment tribunal's decision in Phullar v Ofsted, finding extensive reasoning deficiencies across claims of unfair dismissal and disability discrimination.

Ms Phullar, an Early Years Regulatory Inspector, underwent surgery for soft-tissue cancer in April 2021, followed by a prolonged recovery period. She returned to desk-based duties in October 2021 working 16 hours weekly, with occupational health advising against inspections initially. By January 2022, Access to Work had recommended substantial equipment including ergonomic furniture, assistive technology, and travel support to facilitate both home working and site visits. None was provided before her dismissal in March 2022 on capability grounds.

The tribunal upheld some reasonable adjustment failures but dismissed complaints of unfair dismissal and discrimination arising from disability under section 15 of the Equality Act 2010. Both parties appealed aspects of the decision.

Fundamental legal errors

The respondent conceded the tribunal applied the wrong test to the section 15 claim. Rather than assessing whether dismissal resulted from something arising in consequence of disability—which Ofsted had admitted—the tribunal incorrectly examined whether disability itself influenced the decision-making. This fundamental error, compounded by the respondent's prior admission, rendered that aspect of the decision unsustainable.

Inadequate reasoning on reasonable adjustments

The tribunal found that providing Access to Work equipment would not avoid the claimant's substantial disadvantage, yet failed to explain why. No evidence contradicted the Access to Work recommendations, leaving parties unable to understand the reasoning. The decision stated providing adjustments would be "desirable" whilst simultaneously concluding they would not help—an unexplained contradiction.

The tribunal upheld claims regarding shadowing colleagues on inspections and phased returns, but these findings conflicted with its rejection of equipment provision, particularly the Dictaphone the claimant would observe in use. Insufficient explanation was provided for how phased inspections would ameliorate identified disadvantages.

Unfair dismissal reasoning deficiencies

Whilst identifying the capability reason, the tribunal's fairness analysis contained multiple internal contradictions. It found "no meaningful consideration of alternative redeployment" yet later concluded the respondent "did consider alternative roles". The assertion that both parties were content with consultation levels lacked factual foundation, particularly given the claimant's evidence of inadequate engagement.

The tribunal acknowledged "no meaningful medical investigation" yet concluded reliance on occupational health reports was reasonable, without addressing the claimant's case that those reports suggested capability might return with adjustments. The finding that she "only wished to return to her position" ignored her stated intention to apply for a quality assurance role requiring no inspections.

Critically, the tribunal failed to address whether any reasonable employer would have waited longer given that recommended equipment remained unprovided and medical advice indicated potential recovery within the consultant's 12-18 month timeframe.

Remission for rehearing

His Honour Judge Auerbach identified such extensive flaws and factual inadequacy that remission to a fresh tribunal was necessary. The finding that dismissal was for capability stands, but fairness under section 98(4) Employment Rights Act 1996 requires fresh determination. All Equality Act complaints must be reheard, though findings on knowledge of disability and disadvantage remain. The section 15 claim proceeds on the proper basis that dismissal resulted from something arising in consequence of disability.

The decision underscores the essential requirement for tribunals to provide coherent reasoning enabling parties to understand outcomes and appellate courts to identify any legal errors.

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