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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Department of Work and Pensions v. Hall [2005] UKEAT 0012_05_3108 (31 August 2005) URL: https://www.bailii.org/uk/cases/UKEAT/2005/0012_05_3108.html Cite as: [2005] UKEAT 0012_05_3108, [2005] UKEAT 12_5_3108 |
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At the Tribunal | |
On 26 May 2005 | |
Before
HIS HONOUR JUDGE BIRTLES
MR C EDWARDS
MR D SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR E MORGAN (Of Counsel) Instructed by: Messrs Davies Wallace Foyster Solicitors 5 Castle Street Liverpool L2 4XE |
For the Respondent | MR MOHINDERPAL SETHI (Of Counsel) Instructed by: Messrs Beecham Peacock Solicitors 7 Collingwood Street Newcastle Upon Tyne NE1 1JE |
EAT upheld ET decision that on the facts of the case the Appellant employer was (a) fixed with constructive knowledge of the Claimant's disability and (b) failed to consider what reasonable adjustments should therefore be made.
HIS HONOUR JUDGE BIRTLES
Introduction
(1) The claimant had suffered discrimination contrary to section 5(1)(a) of the Disability Discrimination Act 1995.
(2) The second respondent (The Department for Work and Pensions) did breach section 5(2) and section 6 of that Act by failing to consider reasonable adjustments.
The reserved decision of the Tribunal was entered in the Register and sent to the parties on 13 October 2004.
The Material Facts
"We will be making enquiries into your health, qualifications and references. If the outcome of these enquiries are satisfactory you will be informed and your appointment will be confirmed. If the outcome of the enquiries other than into your health are unsatisfactory your appointment may be terminated. In relation to the enquiries concerning your health, if the outcome is unsatisfactory or if in particular no reasonable adjustments can be made, your appointment may be terminated." Decision Paragraphs 8.5-8.6
"8.49 Mr Hall, who is familiar with the Tyne View Building, then gave the Tribunal a description of the layout. He explained that it was entirely based on an open plan arrangement with very few persons having their own private office. Only the most senior managers such as himself would have an individual office. Mr Hall also explained that since the claimant worked there in 2002 greater numbers of people were now working in the area that the claimant had been employed in. Additional workstations had been provided. The area that had been used as a quiet area for the claimant's training was now fully occupied. It would have been very difficult in the view of Mr Hall to find anywhere that the claimant could have been accommodated separately to her team. Mr Hall's evidence in this regard was supported by that of Mr Graham, who indicated that before he had left to go to another position within the DWP he had had to surrender his own office area. Mr Graham was of a similar view to Mr Hall that it would be almost impossible to accommodate the claimant's requirements, particularly given the increased number of people working at the centre."
"8.50 Mr Sherring, Mr Graham and Mr Hall said that they did not have any basis for suspecting that the claimant was a disabled person. None of them had seen the medical health declaration made by the claimant and at no stage had any of them asked Human Resources for sight of any background documentation of that kind. So far as Mr Sherring and Mr Graham were concerned they both had to agree that they were aware of the claimant's very unusual behaviour. They agreed to this behaviour had given rise to varying degrees of concern throughout the claimant's employment at Tyne View Park. Indeed, Mr Sherring, as noted above, claimed that he was spending wholly disproportionate amounts of time in either dealing with the claimant directly or dealing with the consequences of her conduct by having to speak to others. In August Mr Sherring and the H R Department had been alerted to the claimant's claim for disability tax credit but that had occasioned no enquiry by them. Ms Hart was alerted to the question of medication affecting the claimant. Both in her interview and in the notes of evidence she must have been stricken by the many references to mental health albeit mostly in colloquial terminology. All of these factors put the respondent on notice."
The Employment Tribunal's Conclusions
"Conclusions
27 For all these reasons given above the Tribunal has concluded that there has been a breach of section 5(1)(a) and that the second respondent has discriminated against the claimant for a reason that relates to the claimant's disability by treating her less favourably than it treats or would treat others to whom that reason does not or would not apply.
28. For all reasons given above the Tribunal has concluded that there was a failure on the part of the second respondent to address the question of reasonable adjustments. Therefore, the second respondent was in breach of its duty and a finding against it must be made under sections 5(2) and 6 of the DDA 1995. However, at the same time the Tribunal is satisfied that no reasonable adjustment could have made for the reasons given by Professor Eccleston. Therefore, this is a breach in respect of which the only appropriate compensation should fall within the award for injury to feelings."
The Notice of Appeal
Ground 1: The Section 9 DDA point
Ground 2: The Less Favourable Treatment Issue
"15 However in regard to the issue on the application of section 5(1)(a) the respondent relied on London Clubs Management Limited -v- Hood [2001] IRLR 719. That case concerned the general application of a sick pay policy to a whole group of employees that happened to include the claimant who was a disabled person. The distinction in this case is that we are not dealing with a contractual benefit but with a discretionary decision where the employer has to decide on how to respond to a particular set of circumstances in accordance with general policies and procedures. London Clubs Management Limited -v- Hood therefore does not apply in circumstances such as these. The policy on discipline in the workplace applies to all groups of workers in this employment. How that policy is implemented is a discretionary act at the various levels of management. The exercise of those discretions therefore are subject to the provisions of sections 5 and 6 of the DDA 1995."
Ground 3: The Constructive Knowledge Issue
""I would be foolish to say that there would be no one but I think the person would have to be reasonably sophisticated to pick these things up"." Decision paragraph 8.37.
Ground 4: The Reasonable Adjustment Issue
(1) London Clubs Management Ltd v Hood [2001] IRLR 719 at paragraph 20;
(2) Kenny v Hampshire Constabulary [1999] IRLR 76 at paragraphs 40 and 46;
(3) Morse v Wiltshire County Council [1998] IRLR 352 at paragraphs 29-33;
(4) Archibald v Fife Council [2004] IRLR 197 at paragraphs 25 and 36.
"Given that the question under section 6(1)(a) is to consider whether the arrangements made placed the claimant at a substantial disadvantage in comparison with persons who were not disabled, the second respondent should have addressed its mind to those matters illustrated in section 6(3)(a) to (l). As established in British Gas Service Ltd - v-McCall it would be very difficult for an employer to justify the failure to take reasonable steps if he has not considered what steps should be taken. Therefore, the duty is on the employer. In this case the second respondent did not take any steps in relation to the making of reasonable adjustments in consequence, the second respondent must be held to be in breach."
Ground 5: The justification issue
Conclusion