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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Heathrow Express Operating Company Ltd v Jenkins [2007] UKEAT 0497_06_0902 (9 February 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0497_06_0902.html Cite as: [2007] UKEAT 0497_06_0902, [2007] UKEAT 497_6_902 |
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At the Tribunal | |
On 22 and 23 January 2007 | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MRS L TINSLEY
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
For the Appellant | MR ROBERT WEEKES (of Counsel) Instructed by: Messrs Lewis Silkin LLP Solicitors 5 Chancery Lane Cliffords Inn LONDON EC4A 1BL |
For the Respondent | MR DESHPAL PANESAR (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street LONDON WC1B 3LW |
SUMMARY
Disability Discrimination Reasonable adjustments
Unfair Dismissal Reason for dismissal including substantial other reason; Reinstatement/re-engagement
The Employment Tribunal found that the claimant had been the subject of unjustified disability related discrimination when she was dismissed because, in the employer's view, she was not fit enough to carry out the safety functions required of her in the event of emergencies. The Tribunal held that on the medical evidence available to the employer, they ought not to have reached that conclusion. They also held that the employer had failed to make reasonable adjustments in breach of s.4A of the Disability Discrimination Act. However, it was accepted by the employee that the adjustments could only be considered appropriate on the assumption that the employer ought to have found that the employee was fit to do the job. The Tribunal found wrongly, as the employee conceded - that the disability related dismissal was automatically unfair. They ordered reinstatement and when that was not complied with, awarded additional compensation of 52 weeks' pay. The employer challenged all these findings. The key issue was whether the Tribunal was entitled to make its own independent assessment of the medical evidence. The EAT held that it was not and that the Tribunal erred in law in substituting its view as to the fitness of the employee for the employer. Nor could it possibly be said that the employer's decision was perverse. It followed that the disability related dismissal was justified, and that none of the adjustments identified were reasonable since none would have achieved the objective of getting the employee back to work. In the event the other issues fell away. The EAT further held that it was not appropriate to require reinstatement in this case in any event.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
The background
"With effective treatment and support from her employers I would be optimistic of a recovery and return to workforce. In my view the following four criteria will need to be met. Firstly, she will need to continue her cognitive behaviour therapy until her symptoms had largely responded. Secondly, she needs a course of antidepressant medication to facilitate the resolution of her agoraphobia and panic attacks Her employers will need to understand that she has a recognised condition and her behaviour should not be construed as being "difficult". Clearly the issue of the ticket office is important and this may continue to be an issue for the foreseeable future. Her employers should be encouraged to develop a programme where she does not need to use the ticket office. Fourthly, it would help if she could be removed from the sphere of influence of Susie Halliday".
"With the instigation of the four factors I have outlined, I would be optimistic about a return to work within three months of starting the antidepressants. I would expect a continuing recovery, although she may continue to have residual symptoms over the next year and quite possibly for longer. Further stresses in her life may make her vulnerable to a recurrence of her symptoms."(italics added.)
Nature and history of Mrs Jenkins's symptoms
Diagnosis. Does she have psychiatric illness, and if so what is the nature of this?
Is her day to day judgment affected?
Details of any ongoing or proposed treatments and timescale.
Prognosis. Is her condition likely to cause long term or permanent incapacity?
Any further information to assist in supporting this lady back to work. We can for example do a graduated rehabilitation back to work.
Any other information relevant to ourjudgement
as to the likelihood of sustained/continued safe future working in her current safety critical role as a Customer Service Representative?"
"Sally Jenkins has now been off work since January 2005. If she is returned to work within twelve months then she will make a successful adaptation and be able to return to her original job. It is therefore important to commence a return to work programme as soon as possible. Ideally Sally Jenkins should start part time, say two mornings a week, progressing to four mornings a week within one month, and full time within two months. She should have a short retraining programme which would help restore her skills in the railway industry. This should occur before she returns to work. On return to work she should be under supervision, certainly for the first three months. This will enable the company to assess her performance and improve Sally Jenkins' confidence in her ability to do the job".
"Sally is now well enough to be at work in the general sense. Restrictions will be discussed further in this letter. She should be able to deliver regular and efficient service as she has, for the main part, recovered from her recent illness. There is ongoing vulnerability that similar health problems could re-occur at a later date, but there is no indication to anticipate that this should happen in the near future.
The specialists' reports confirm that the issues for which Sally was being investigated at work, and were considered safety related, are likely to be explainable in terms of Sally's altered judgment at the time, due to her medical condition.
On the basis of altered judgment during periods of ill health, and the vulnerability for future recurrences of her health problems, I cannot recommend that she undertakes safety critical activities. I understand, in her role, this relates specifically to the dispatching of trains. I consider that this restriction should be a permanent.
There is no indication that Sally's judgment is affected on a regular basis. However, as indicated, the situation may re-occur at a future time without apparent notice or warning. I believe, therefore, that there should be a managementreview
as to the acceptability this risks presents in safety related (as opposed to safety critical) activities.
At this point Sally is not able to return to the ticketing role as her clinical state still limits her in tightly enclosed and potentially claustrophobic environments. Although this situation is improving, it does not appear at this stage to affect her ability to travel, or work, on board a train. It is difficult to predict how long this will continue but it is likely to be an issue for 3-6 months in the first instance.
Given the comments above it's clear that she is not currently fit to return to normal duties."
"As far as I am aware, the psychiatrist Mrs Jenkins saw was not an 'Occupational' Psychiatrist. Have I missed something? He was being asked for his clinical assessment of Mrs Jenkins' psychological state, and that is the evidence used, in conjunction with the other psychiatric report, in understanding her condition, and then translating this into employment recommendations. As far as I am aware, Dr Wilson is not qualified to make the statements on fitness to work that he has. Unfortunately, in addition, his conclusion does not appear logical or consistent with the clinical information contained in the substance of his report.
These things having been said, and to answer your question, I took account of all the clinical information provided by the two psychiatrists, and translated it into employment recommendations as outlined in my letter, ie altered judgment during periods of ill health, vulnerability to periods of ill health going into the future, and the fact that illness and consequently errors ofjudgement
may go unnoticed until after these errors have occurred. This is fully based on her history to date and the ongoing vulnerability described by the psychiatric specialists."
Both the last two were safety critical, and therefore they were not considered suitable either. In the circumstances, Mr Wornham concluded that none of these positions was suitable and therefore Mrs Jenkins would have to be dismissed. It has not been suggested in this appeal that Mrs Jenkins should have been offered any of these, or indeed any other, jobs.
The legislation
"3A Meaning of "discrimination"
(1) For the purposes of this Part, a person discriminates against a disabled person if
(a) For a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
(b) He cannot show that the treatment in question is justified.
(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.
(3) Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).
(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty.
4A Employers: duty to make adjustments
(1) Where
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.
" Upon a consideration of the wording of section 5(3) [now 3A(3)] in context, I conclude that the employment tribunal are confined to considering whether the reason given for the less favourable treatment can properly be described as both material to the circumstances of the particular case and substantial. The less favourable treatment in the present case is the limit upon the hours of driving. The reason given for it is the risk arising from longer periods of driving. The employer obtained what are admitted to be suitably qualified and expert medical opinions. Upon the basis of those opinions the employer decided that the risk was such as to require the less favourable treatment. In order to rely on section [ 3A(3)] it is not enough for the employer to assert that his conduct was reasonable in a general way; he has to establish that the reason given satisfies the statutory criteria. The employer asserted in this case that the risk arising from the presence of diabetes is material to the circumstance of the particular case and is substantial. Where a properly conducted risk assessment provides a reason which is on its face both material and substantial, and is not irrational, the tribunal cannot substitute its own appraisal. The employment tribunal must consider whether the reason meets the statutory criteria; it does not have the more general power to make its own appraisal of the medical evidence and conclude that the evidence from admittedly competent medical witnesses was incorrect or make its own risk assessment.
The present problem will typically arise when a risk assessment is involved. I am not doubting that the employment tribunal is permitted to investigate facts, for example as to the time-keeping record of the disabled person or as to his rate of productivity, matters which would arise upon some of the illustrations given in the Code of Practice. Consideration of the statutory criteria may also involve an assessment of the employer's decision to the extent of considering whether there was evidence on the basis of which a decision could properly be taken. Thus if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence; or was an irrational decision as being beyond the range of responses open to a reasonable decision maker, a test approved by Sir Thomas Bingham MR in a different context in R v Ministry of Defence, Ex p Smith [1996] ICR 740, 777-778, the employment tribunal could hold the reason insufficient and the treatment unjustified.
The tribunal cannot, however, in my judgment, conclude that the reason is not material or substantial because the suitably qualified and competently expressed medical opinion, on the basis of which the employer's decision was made, was thought by them to be inferior to a different medical opinion expressed to them. Moreover, a reason may be material and substantial within the meaning of the section even if the employment tribunal would have come to a different decision as to the extent of the risk. An investigation of the facts by the tribunal will often be required but it cannot go to the extent of disagreeing with a risk assessment which is properly conducted, based on the properly formed opinion of suitably qualified doctors and produces an answer which is not irrational. This constraint limits the power of tribunals to provide relief to disabled employees but in my view it follows from the wording of the section, which requires consideration of the reason given by the employer, and recognises the importance of the employer's responsibility for working practices.
The limited function of the employment tribunal may in some circumstances place them in a situation which is less than straightforward procedurally. However, it is not one with which they are unfamiliar. It is different but not very different from the task employment tribunals have to perform in cases of unfair dismissal. In Foley v Post Office [2000] ICR 1283 it was held in this court that, in applying the law of unfair dismissal in section 98 of the Employment Rights Act 1996, tribunals should continue to adopt the "band or range of reasonable responses" approach to the issue of the reasonableness or unreasonableness of a dismissal as expounded in Iceland Frozen Foods Ltd v Jones [1983] ICR 17. Under that section the tribunal's task is to consider the reasonableness of the employer's response and, under the present section, it is to consider the materiality and substantiality of his reason. In both case the members of the tribunal might themselves have come to a different conclusion on the evidence but they must respect the opinion of the employer, in the one case if it is within the range of reasonable responses and in the other if the reason given is material and substantial."
"provided the employer has taken into account all the evidence reasonably available to it, including if medical issues are raised, sufficiently well-qualified expert medical evidence, then the fact that other evidence is available by the time of the hearing cannot render the treatment unjustified".
"Employers are not obliged to search for the Holy Grail. It is sufficient if their conclusion is one which on a critical examination is found to have substance."
Waller LJ agreed, said this (substituting the current section numbers in the text):
"There is no doubt that the test required by section [4A(1)] is an objective test. The employer must take "such steps as it is reasonable, in all the circumstances of the case " The objective nature of the test is further illuminated by section [18B(1)] Thus, in determining whether it is reasonable for an employer to have to take a particular step, regard is to be had, amongst other things, to
"(c) the financial and other costs which could be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities."
It is significant that the concern is with the extent to which the step would disrupt any of his activities, not the extent to which the employer reasonably believes that such disruption would occur. The objective nature of this test is well established in the authorities: see Collins v Royal National Theatre Board Ltd [2004 EWCA Civ 144] [2004 IRLR 395] in which Sedley LJ said (at paragraph 20):
"The test of reasonableness under section [4A] must be objective. One notes in particular that section [4A(1)] speaks of 'such steps as it is reasonable for him to have to take'."
When one turns to the question of justification in section [3A], the position is noticeably different. It is for the employer to show that the less favourable treatment referred to in section [3A(1]) or the failure to comply with a section [4A] duty as referred to in section [3A(2)] is justified. It is apparent from the terms of section [3A(3) and (4)] that treatment is justified
"if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."
Whereas, in relation to section [4A], it is ultimately the view of the Employment Tribunal of what is reasonable that matters, the position is otherwise in relation to section 3A. As Pill LJ said in Post Office v Jones [2001] EWCA Civ 558, [2001] ICR 805 (at paragraph 27):
" a reason may be material and substantial within the meaning of the section even if the Employment Tribunal would have come to a different decision as to the extent of the risk."
The safety regime.
"Medical assessments shall be carried out by or under the supervision of a registered medical practitioner with experience of occupational medicine;
knowledge of the hazards of train working or of the environment in which it is performed;
an understanding of the measures intended to eliminate or reduce risks from those hazards could be affected by lack of medical fitness."
The Tribunal's decision.
"Even if the Respondent gets over the burden of showing justification on the grounds of parts of Mrs Jenkins's job being safety critical, the provisions of section 3A(6) cannot justify that unless it can be justified even if the Respondent had complied with their duty to make reasonable adjustments. That is something that the Respondent cannot show and is interlinked with our decision on the failure to make reasonable adjustments which follows."
"Dr Wilson's commission by the Respondent as an authoritative specialist psychiatric opinion .was by the group medical advisor, Dr Andrew McGregor. In addition to the passages of Dr Wilson's report, which are quoted in the original reasons, we note ..in answer to the question, "Is her day-to-day judgment affected?", Dr Wilson states, and we quote the full paragraph:
"Depression undoubtedly affects the sufferer'sjudgement
, Mrs Jenkins is known to have been depressed during 2004, the worst time for her anxiety was the autumn of 2003 but she was certainly depressed during the spring of 2004 and much more obviously depressed by the winter of 2004. The disciplinary incidents mentioned in the referral letter involved poor
judgement
, one entailed, allegedly distracting a train driver whilst operating a train and the other allegedly facilitating unauthorised entry of an individual without a pass, both incidents may well have been related to Mrs Jenkins depressed state at that time. Depressed people tend to be pre-occupied with their internal roles. Their concentration is often affected, hence faulty judgments may be made. Mrs Jenkins depression has now been adequately treated and it is my clinical opinion that her day to day
judgement
is now normal".
12 We also take note of the paragraphs that we quoted in our original reasons. We have also re-visited the witness statement of Dr Bell and our notes of evidence. Dr Bell told us that Dr Wilson, whom the Respondent instructed, and Dr Read, were much better qualified to assess the clinical situation and offer prognostic advice. He told us that psychiatry was not his field and that the progress of psychiatric illness was the field of a psychiatrist. At paragraph 9 of his witness statement Dr Bell quoted Dr Wilson's clinical opinion that Mrs Jenkins day to day judgment was now normal and in paragraph 10 of his witness statement that Dr Wilson thought the prognosis excellent. We have also noted that Dr Bell spoke to his colleagues, Dr Andrew McGregor and Dr Christopher Raythorn about his report when he met them at a professional meeting of occupational health positions at a hotel in York. Dr Bell also told us that he had no qualification in cognitive behavioural therapy. In cross examination he admitted that Mrs Jenkins prognosis was outside his area of expertise. In paragraph 18 of his witness statement he indicated that he had obtained information as to the nature of the work of Mrs Jenkins from her management. The penultimate paragraph of his report states:
"I have explained to Mrs Jenkins that I have taken full account of the psychiatric reports as the basis for my opinions on impact on work and that it will now be a management process to assess my opinions from an employment point of view".
13 Dr Wilson's report which we accept was the best psychiatric evidence, being a report for the Respondent, indicated that her day to day judgment was normal. On this evidence we are satisfied that the adjustments would have enabled Mrs Jenkins to undertake safety critical activities and would have allowed her to undertake them in the future. Indeed her evidence here today is that she has completed her course of cognitive behavioural therapy, that her health has improved and she is now able to work in a ticket office or a confined space and could go back to work as a customers services officer. The Respondent never sent Mrs Jenkins for a further psychiatric report which would have been crucial in deciding her ability to undertake safety critical duties. On his evidence Dr Bell did not have the clinical knowledge necessary."
Failure to make reasonable adjustments
"this is something that the respondent did not address and they are therefore in breach of the duty to make reasonable adjustments".
The reason for dismissal.
The grounds of appeal
Unfair Dismissal.
Reinstatement.
Disposal.