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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Summer Bridge Doors Ltd v Pickering [2003] UKEAT 1088_02_2103 (21 March 2003) URL: https://www.bailii.org/uk/cases/UKEAT/2003/1088_02_2103.html Cite as: [2003] UKEAT 1088_2_2103, [2003] UKEAT 1088_02_2103 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE J MCMULLEN QC
MR D A C LAMBERT
MR D SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR JAMES HOLMES-MILNER (of Counsel) Instructed by: Messrs Hamers Solicitors Waterside Business Park Livingstone Road Hessle HU13 0EJ |
For the Respondent | MR HUMPHREY FORREST (Solicitor) Instructed by: Humberside Law Centre 95 Alfred Gelder Street Hull East Yorkshire HU1 1EP |
HIS HONOUR JUDGE J McMULLEN QC
Introduction
3 (1) "Whether the Applicant was disabled within the meaning of the definition under the Disability Discrimination Act 1995 ("the Act").
(2) Whether the Applicant's knee injury and consequential absence from work resulted from her disability, or whether it was a completely independent and unconnected injury.
(3) Did the Applicant receive less favourable treatment, and if so what was that treatment?
(4) If the Applicant received less favourable treatment, was this for a reason which related to her disability?
(5) If, prima facie, there was discrimination, can the Respondents justify such treatment within the statutory definition?
(6) Were the Respondents under a duty to make reasonable adjustments, and if they did not so can they justify such an omission?
(7) Whether the refusal by the Respondents to permit the Applicant to return to work and whether the failure to pay her even SSP during the period from 29 August – 29 September amounted to constructive dismissal.
(8) If the Applicant establishes that there was constructive dismissal, did she resign for a reason connected with the Respondent's breach of contract? Did the delay in resigning amount to a waiver of such breach and/or confirmation of the contract?
(9) Whether the Applicant was entitled to receive pay for the period 29 August – 29 September, and if so whether such should be at the SSP rate or normal salary."
It will be seen that from paragraph 3 (8) above two issues arise and thus it was that 10 essential issues fell for decision before the Employment Tribunal.
The Legislation
(1) Disability Discrimination Act 1995:
5 "Meaning of Discrimination
(1) For the purposes of this Part, an employer discriminates against a disabled person if—
(a) or 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, an employer also discriminates against a disabled person if—
(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified."
(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."
(2) Employment Rights Act 1996:
95 (1) "For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if)-…
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."
3 "Risk Assessment
(1) Every employer shall make a suitable and sufficient assessment of –
(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and
(b) …for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions..."
The Decision
The Appeal
The Parties
The Findings
"She is currently not weight bearing and is reliant upon crutches. The knee brace does give significant support to the knee joint making a further injury unlikely. With her marked lack of mobility, it would be difficult for her to return to work unless special provision was made and she remained static at her desk. As she becomes less crutch dependant, over the next few weeks, she should be in a position to return to work."
The issues
The Respondent's Case
The Applicant's Case
Considerations
(1) Disability
"By analogy with the law relating to dismissal on the ground of pregnancy, O'Neill v (1) Governors of St Thomas More RCVA Upper School (2) Bedfordshire County Council [1996] IRLR 372 (EAT) it would seem likely that the connection required here is to be determined by consideration of all the circumstances. It will not be necessary for someone complaining of discrimination to show that his disability was the only reason, provided it was an effective cause of his less favourable treatment. Whether or not it was a reason probably involves an investigation of the alleged discriminator's state of mind at the time."
20 "Thus there is nothing in Clark, which bears directly on the interpretation of:
"..for a reason which relates to the disabled person's disability...".
It is worth noting, however, that at paragraph 57 Mummery LJ recites the appellant's argument in these terms:-
"A contrary interpretation is submitted on behalf of Mr Clark. His argument is that "that reason" refers only to the first three words of the paragraph - "for a reason". The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression "which relates to the disability" are words added not to identify or amplify the reason but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able bodied person) to complain of his treatment. ..."
21 It is clear from the succeeding paragraphs of the judgment (paragraphs 58 to 72, particularly paragraph 63) that the court accepted this interpretation. We think it would be helpful for Employment Tribunals to remind themselves, when considering whether there has been less favourable treatment of a disabled person:
"... for a reason which relates to the disabled person's disability ...",
that those words are there to
"...specify a link between the reason for dismissal and ...[the]...disability ...".
Thus understood, it becomes more obvious that the relationship between the reason for the dismissal and the disability need not be direct. To find that the employee has been dismissed because of their disability would axiomatically place the employer in breach of sections 4(2) and 5(1) (a) of the DDA but to conclude that the reason for dismissal was not the disability does not mean that the employee's case can be rejected without further inquiry; in such a case, it is then necessary to ask whether the reason for dismissal has a relationship to the disability in the sense that it is linked to it."
Mr Hand's Appeal Tribunal does not appear to have had drawn to its attention the judgment in O'Neill, nor was it drawn to Ms Slade's in London Clubs Management.
7 "It is clear that she has had long-standing knee pain and that the knee pain is a consequence of her rheumatoid arthritis. It is clear that the knee is unstable and that this precipitated her fall downstairs and that therefore the fall and the knee injury is related to Miss Pickering's existing condition of rheumatoid arthritis. I therefore conclude that the knee injury was caused by her existing condition of rheumatoid arthritis."
That report was jointly commissioned and is not challenged in any way. It is the clearest possible evidence upon which the Tribunal could reach a conclusion.
(2) Justification
25 "…In order to rely on s.5(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 Respondent asserts in this case that the risk arising from the presence of diabetes is material to the circumstances 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.
26 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 parte Smith [1996] IRLR 100 at 102), the Employment Tribunal could hold the reason insufficient and the treatment justified."
(a) The Consultant's opinion
(b) The risk assessment
"One aspect of a risk assessment, in our judgment, is canvassing the opinion of the person whose risks are being assessed. It must be clear in this case that the Applicant was robust and firm and determined to get back to her work. She came in July immediately after the accident and came again in August. She is to be given credit for that perseverance. But she was not asked herself about how she felt at the end of August and all that happened was that the Applicant tried in July but found it uncomfortable and when she returned in August a visual observation by Mr Gravil was all that informed his judgment…"
(3) Unfair Dismissal
"…[a] Tribunal had erred in holding that since there was no express term in [a] contract of employment which required the employers to pay…wages while they awaited confirmation from their medical adviser that [the Applicant] was fit to resume work, the employer's failure to pay…during the…period when, although [the Applicant] was willing to work and had been certified by her own doctor as fit to do so, [the Respondent] refused to allow her to return, did not amount to an unauthorised deduction from wages.
An employee who offers her services to her employer is entitled, at common law, to be paid unless a specific condition of the contract regulates otherwise."
Conclusion