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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> British Telecommunications Plc v. J Pousson [2005] UKEAT 0347_04_0508 (5 August 2005) URL: https://www.bailii.org/uk/cases/UKEAT/2005/0347_04_0508.html Cite as: [2005] UKEAT 0347_04_0508, [2005] UKEAT 347_4_508 |
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At the Tribunal | |
On 19 April 2005 | |
Before
HIS HONOUR JUDGE D SEROTA QC
MR P R A JACQUES CBE
MR D SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR P THORNTON (of Counsel) Instructed by: British Telecommunications Plc Legal Services PP5 IAQ Alexander Bain House 15 York Street Glasgow G2 8LA |
For the Respondent | MR J POUSSON (The Respondent in Person) |
HIS HONOUR JUDGE D SEROTA QC
Introduction
Factual Background
"Dr Almond confirmed that the applicant was an insulin dependent diabetic and she emphasised that he had a history of difficulty of controlling his condition and keeping his blood sugar within a stable range. She noted that his condition would have had an effect on both "his attendance at work and his work performance". Dr Almond also advised that in order to maintain control over his condition the applicant would need to "check his sugar levels, inject himself with insulin and have food or drink readily available". Dr Almond went on to advise that "the nature of diabetes is such that sufferers can be more prone to general viruses and infections and in addition such conditions can last longer or be more debilitating than in somebody without diabetes". Dr Almond indicated that the applicant's sickness absence would be likely to exceed a healthy colleague's because of his disability. She suggested that a reasonable adjustment under the DDA would be to consider an allowance regarding sickness absence. Dr Almond then suggested further adjustments. These were: (a) time off line (in order to allow the applicant to test his sugar level or give himself an injection), (b) being allowed access to food and drink at his place of work (so that it was readily available to him) and (c) that his shift pattern should be altered to assist him in controlling his condition."
"…As soon as Dr Almond's report had been issued someone with the necessary authority, competence and understanding of disability should have taken over the management of this situation and issued the necessary advice and guidance to the line managers. Such intervention was it seems totally absent throughout these events. It is this fundamental failure on the respondent's part which has in the main given rise to many of the unhappy consequences that followed."
"That prolonged periods of absence appear to be associated with viral infections that in a diabetic can be more symptomatic and cause greater problems in controlling the underlying condition."
"…regarded the medical advice as not worthy of any further attention. In making that decision he made a very serious error. At that point the respondent had been told to take action by two different medical practitioners and had manifestly failed to address most of their advice and recommendations. In particular it failed to consider the application of its Poor Performance / Attendance Policy to the applicant in the light of that advice."
"With the increased focus on answering calls (in the new department) where on [Highway where he had originally worked] there may have been long periods of the day when no calls required answering."
"that at one stage there was also a concern regarding Janvier's ability to start on time and retain his breaks to 15 minutes…"
" The Annual Performance Review refers to only one of the two warnings issued to the applicant by Mr Fox. Given the medical advice the respondents knew that these warnings related to the applicant's disability. The APR provides for improvements to the applicant's productivity and performance and although these were not specifically related to adherence times or absences from work, nevertheless, the overall context is telling. The first objective was to reduce call times and the second was related to sales. However, those objectives were set in the context that Mr Fox and Ms Hanna had raised issues concerning the applicant's absences and adherence times. Ms Hanna, for example, admitted that she had spoken to the applicant regarding his time away from his workstation several times. Accordingly, this was the background against which the poor performance action was being taken. The effect of that was to put the applicant under very considerable time pressure by requiring substantial improvement in performance over a four week period together with a daily reporting regime."
The APR under the heading of Personal Development review, agreed action, and proposed arrangements and supervision to enable the average time he spent on calls to be reduced from 330 seconds to 300 seconds. As a result of the APR the Claimant was placed on a Performance Improvement Plan. The purpose of placing an employee on the Performance Improvement Action Plan is ostensibly not disciplinary. It is designed to improve and enhance performance. The Claimant's evidence was that in his case, he was placed on the Plan for reasons connected with his disability, including his absences from work and absences from his desk. The plan, so far as concerned the Claimant was expressed to give effect to the proposal in the APR. The proposals involved assisting the Claimant to reduce the time spent on various stages of calls, some of which related entirely to time spent on the telephone with customers, but one aspect of which was 'wrap' time spent after completion of a call.
"(41)…As the two doctors' reports indicate it is sometimes very difficult with the best will in the world for a diabetic to manage this difficult task. In conditions of instability therefore testing in the period from the injection and the intake of food is critical to ensuring that no serious imbalance is incurring either in low or high blood glucose levels
(42) In such circumstances it would be prudent to test at least once between the pre-lunch time injection, the food intake at lunch and the mid-afternoon break. Such a test would therefore fall in the period 1:00 pm to 3.30 pm, If the first test result was indicative of blood glucose levels outside the acceptable range further tests would be needed and possibly either high glucose food or drink or an additional injection of insulin to counteract either low or high levels respectively. This is not a predictable situation and requires flexibility to respond to the changing situation."
"extraordinary in circumstances where there had been a serious injury to someone at work and the employee concerned had raised a specific contention regarding that injury alleging that these statistics were relevant."
The Employment Tribunal was critical of the way in which the grievance procedure had been handled.
The decision of the Employment Tribunal
"encompassed the whole of his treatment by the employer for the purposes of the Disability Discrimination Act 1995."
He had filed Further and Better Particulars which had been drafted with the assistance of the Citizens Advice Bureau. These Further and Better Particulars were not as well drafted as they might be but were considered by the Employment Tribunal to be consistent with the broad claims in the Originating Application.
"…Action was taken against the applicant for poor attendance for reasons related to his disability. The applicant had to attend a series of interviews which had been arranged because he had been absent for reasons related to his disability. The applicant was spoken to about absences away from his workstation when those absences were related to his disability. The applicant was subjected to an Improvement Plan when he had to report daily when his poor performance had a relationship to this disability. By reason of its failure to make reasonable adjustments in connection with the testing of his blood the respondents exposed the applicant to complaints from other employees. In one instance Ms Hanna interviewed the applicant in March 2001 and he was required to explain his disability to her in circumstances that were wholly inappropriate. Had the respondents taken proper steps following receipt of Dr Almond's report in September 2000 such an interview would not have been held."
"20. …The law as it stands does not require a direct causal connection between the disability and the matter complained of only that there is some relationship between the two. In this case there was evidence that the applicant's performance did have a relationship to his disability. The respondents not only had actual knowledge of the disability but they had specialist advice the greater part of which they ignored. The respondents themselves identified in the Annual Report the link between the applicant's performance and his disability but failed to follow that up."
Grounds of Appeal - the pleading point
"The nature of my complaint is concerning the way in which my employer disregarded the regulations of the Disability Discrimination Act in their treatment of me in the workplace."
He referred to the fact he was an insulin dependent diabetic who needed to control his blood glucose levels with insulin injections to maintain his glucose levels. He complained that his line manager was "totally unsympathetic" and referred to pressure to reduce his hours and complaints in relation to his sickness absences. On the second page (page 40 of our bundle) he referred to complaints about the time he had spent away from his desk despite his explanations that he needed to test his sugar levels or inject himself. He referred to the fact that as objections were taken to doing testing at his desk, a practice he was told was "unacceptable" by his manager, he was placed under the PPA for reasons that included the amount of time he spent away from his desk. He maintained he was placed on the PPA and the Performance Improvement Action Plan by reference to the talk time on the phone to customers, the time taken between calls whereby he would be addressing complaints and signing off and time taken away from his desk during work time.
"Had I been allowed to freely test and maintain my glucose levels at work then this would have been avoided".
He also stated that his manager disregarded the implementations of the Disability Discrimination Act which led to his injury.
The perversity appeal
"with the increased focus on answering calls where on Highway (where he had previously worked) there may have been long periods of the day when no calls required answering."
It is said that the Employment Tribunal took this out of context. The Annual Performance Review dealt with his call handling skills and need to deal with calls quickly. This was said to be the source document and could not sustain the finding that the Employment Tribunal had made as to a link between his disability and performance.
"his attendance at work and his work performance".
The pressure placed upon him not to leave his desk was proved by the fact that document 134 and the findings at paragraph 7 (37) showed that when Ms Hanna supervised him he spent more time at his work station.
Conclusions on Perversity Arguments
"Dissatisfaction with sickness absences and adherence times form the background to the Respondent's decision to pursue performance related issues. The additional pressures in terms of reducing call times and being monitored on a daily basis were part and parcel of the overall approach being adopted towards the Applicant."