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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Edmund Nutall Ltd v Butterfield [2005] UKEAT 0028_05_2907 (29 July 2005) URL: https://www.bailii.org/uk/cases/UKEAT/2005/0028_05_2907.html Cite as: [2005] UKEAT 0028_05_2907, [2005] UKEAT 28_5_2907 |
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At the Tribunal | |
On 26 April 2005 | |
Before
HIS HONOUR JUDGE PETER CLARK
MR D EVANS CBE
MR B M WARMAN
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
MRS J BARBER & OTHERS RESPONDENTS
For the Appellant | MR THOMAS CROXFORD (of Counsel) Instructed by: Ms Sophie Brandt Messrs CMS Cameron McKenna Solicitors Mitre House 160 Aldersgate Street London EC1A 4DD |
For the Respondent | MR JONATHAN FRENCH (Of Counsel) Instructed by: Mr N A Castle The Beaumont Partnership 67 Westgate Wakefield West Yorkshire WF1 1BW |
Disability; Contributory Fault
Whether less favourable treatment by reason of disability. Excluded conditions under 1996 Regulations. Unfair dismissal. Breach of trust and confidence. Contributory fault.
HIS HONOUR JUDGE CLARK
The Facts
(i) That he had been disqualified from driving for two years. He said that the Judge had imposed that length of ban because she thought that the Claimant should achieve a better work/life balance. In fact, as the Tribunal found, although the Judge was not disqualifying him for the offences of indecent exposure, she took into account that the Claimant's car was part of his equipment for committing those offences;
(ii) He did not mention the offences of indecent exposure, nor the CRO which had been imposed;
(iii) He was asked by Mr Medcroft about a further enquiry by the Cheshire Police. The Claimant said that he had been interviewed by that force at Pontefract Police Station because a car similar to his had been used as a getaway vehicle in a robbery. This account was untrue, as the Tribunal found; the Cheshire Police were investigating a similar offence of indecent exposure which had occurred in their area.
30 January 2004 and suggested that Mr Medcroft obtain a statement from the probation service about the offences. The Respondent did not contact probation until a time between the Claimant's dismissal following a disciplinary hearing held on 5 April and the hearing of his internal appeal on 6 May. We shall return to what was said shortly.
Medical Evidence
"I am firmly of the opinion that Mr Butterfield knew at all times that what he was doing was wrong and he seemed to have developed a habit of equipping himself with a dressing gown and balaclava in his car and in the middle of 2000 having made false number plates to avoid detection by the police."
The Tribunal Substantive Decision
"(1) Was the Applicant disabled within the meaning of Section 1 of the Disability Discrimination Act 1995?
(2) If so, did the Respondent, by dismissing him, treat the Applicant less favourably for a reason relating to his disability than it would have treated others to whom that reason would not have applied?
(3) If so, has the Respondent shown that its treatment of the Applicant was justified?
(4) Was there a duty in law on the Applicant to disclose all his convictions?
(5) If so, did the Applicant breach the duty to disclose all his convictions?
(6) Did the Applicant breach the implied term of mutual trust and confidence by misleading his employer?
(7) If so, was the response of dismissal within the range of responses of a reasonable employer?
(8) If not, did the Applicant contribute by his conduct to his dismissal and, if so, to what extent?"
(1) The Claimant was suffering from a mental impairment which had a substantial adverse effect on his memory and his ability to concentrate and understand. The effect was long term. He was disabled within the meaning of Section 1 DDA.
(2) The Respondent, in dismissing the Claimant, treated him less favourably for a reason relating to his disability then it treated others to whom that reason would not have applied. The Tribunal found (Reasons paragraph 49) that the Claimant committed the offences (of indecent exposure) because he was suffering from a mental illness (depression). The offences gave rise to the reason relating to the Claimant's conduct for his dismissal. Accordingly, the Claimant was less favourably treated for a reason relating to his disability. Had he not been suffering from mental illness, he would not have committed the offences and found himself in the position of being dismissed because of them. The Respondent, prima facie, discriminated against the Claimant (Section 5.1(a) DDA).
(3) The Respondent had not shown that its treatment of the Claimant was justified. The admission by the Claimant of offences of indecent exposure was a substantial reason for his dismissal in that the very serious nature of the offences was very likely to bring the Respondent into disrepute if it became public. However, that reason was not material to the circumstances of the Claimant's particular case. What was material was the risk of the Claimant re-offending, which the Respondent did not investigate.
(4) Although the advice of the Claimant's solicitor that he need not disclose his convictions for indecent exposure was "wrong" (Reasons paragraph 22), it was not obviously wrong and the Claimant was entitled to act on that advice (Reasons paragraph 52).
(5) In these circumstances, the Claimant was not in breach of his duty of disclosure.
(6) Although the non-disclosure did in fact have a very damaging effect on mutual trust and confidence (Reasons, paragraph 52) a contract of employment is not a contract of utmost good faith and there was no fundamental breach of contract on the part of the Claimant.
(7) The Tribunal did not specifically identify as an issue the Respondent's reasons for dismissal for the purposes of the unfair dismissal claim, however, we infer that the Tribunal was satisfied that the Respondent had made out a potentially fair reason, conduct (see Reasons paragraph 42) and they found (Reasons paragraph 53) that Mr Medcroft had prejudged the matter before the disciplinary hearing took place. That, we would observe, was capable of and did, in the view of the Tribunal, render the dismissal 'procedurally' unfair. Additionally, the Tribunal found that, given the Claimant's disability and the failure of the Respondent to address the problem posed by the risk of re-offending, dismissal was outside the range of reasonable responses open to the employer.
(8) Finally, the Claimant was not guilty of culpable conduct. His conduct was not treated as such by the Crown Court in the way in which he was sentenced for the offences of indecent exposure. At most, he was guilty of a lack of judgement in not disclosing those offences to the Respondent on 19 February 2004, but his judgement was impaired by his mental state and he was acting on legal advice 'given in good faith'. There would be no reduction in his compensation for unfair dismissal for contributory conduct, nor the Tribunal add, in his compensation for disability discrimination (although no provision to do so exists under the DDA).
The First Appeal
Disability Discrimination
Disability
"(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."
"Regulations may make provision for the purpose of this Act –
(b) for conditions of a prescribed description to be treated as not amounting to impairments"
and by paragraph 1(3):
"Regulations made under sub-paragraph (2) may make provision as to the meaning of "condition" for the purposes of those regulations."
The 1996 Regulations were made under Schedule 1 to the principal Act. They do not contain a definition of "condition" but do provide, so far as is material at Regulation 4, under the Heading "Other Conditions not be treated as Impairments"
"(1) For the purposes of the Act, the following conditions are to be treated as not amounting to impairment:-
(c) A tendency to…sexual abuse of other persons
(d) Exhibitionism".
"It is not necessary to consider how an impairment was caused, even if the cause is a consequence of a condition which is excluded". [Those conditions, to be found in the 1996 Regulations being listed at paragraph 8 of the Guidance]. For example, liver disease as a result of alcohol dependency would count as an impairment".
"(c) A tendency to physical or sexual abuse of other persons".
The Tribunal concluded that the Claimant's tendency to violence was a condition that fell within Regulation 4 and accordingly could not be considered to be a disability within the meaning of Section 1 of the DDA. Accordingly, the Claimant had not been discriminated against by being treated less favourably for a reason which related to his disability (see EAT Judgment, paragraph 11).
"…It is not material to a decision as to whether a person is suffering a disability within the meaning of the Act, to consider how the impairment from which they are suffering was caused. What is material is to ascertain whether the disability from which they are suffering at the material time is a disability within the meaning of the Act or whether, where it is relevant as in this case, it is an impairment which is excluded by reason of the Regulations from being treated as such a disability".
(1) We respectfully agree with the EAT approach in Power that the question is not what caused the legitimate impairment.
(2) We are not persuaded that the concept of a "free-standing condition" is helpful, cf Murray.
(3) It is plain that a Claimant may have both a legitimate impairment and an excluded condition. That was the factual position in both Power and Murray and in the present case.
(4) In these circumstances, it seems to us that the critical question is one of causation. What was the reason for the less favourable treatment, here dismissal of the Claimant?
(5) If the reason was the legitimate impairment, then prima facie discrimination, subject to the defence of justification, is made out; if the reason was the excluded condition and not the legitimate impairment, then the claim fails by reason of his disability.
(6) That distinction may be easily stated. However, it does not deal with the case where both the legitimate impairment and the excluded condition form the employer's reason for the less favourable treatment. In those circumstances, we find assistance in the approach of Mummery P, consistent with high authority, in O'Neill v St Thomas More School [1996] RLR 372, in relation to dismissal on the grounds of pregnancy. The then President held in that case that it was not necessary for the Claimant to show that pregnancy was the only reason for her dismissal, provided it was an effective cause. Reverting to the wording of Section 5(1)(a) DDA, the Claimant must show that the less favourable treatment was for a reason related to the Claimant's disability. Thus, in our judgement, focusing on the employer's reason for the less favourable treatment, if the legitimate impairment was a reason and thus an effective cause of the less favourable treatment, then prima facie discrimination is made out notwithstanding that the excluded condition also forms part of the employer's reason for that treatment.
(1) At the time of his dismissal on 7 April 2004, the Claimant was suffering from a mental impairment, depression, and was disabled within the meaning of Section 1 DDA.
(2) The Respondent was aware of his mental state. He was admitted to hospital on 22 November 2003 and remained off work thereafter. Nevertheless, at the meeting on 19 February 2004, based on the account given by the Claimant, the Respondent was content for him to continue working for them with adjustments made to deal with his loss of his driving licence.
(3) What changed, in the mind of the Respondent's directors, was the revelation by the Claimant's wife to Mr Medcroft as to the true position; that the Claimant had been convicted of offences of indecent exposure for which he received a CRO?
(4) Having discussed the matter with his fellow directors, it was decided by Mr Medcroft that the Claimant must be dismissed, not because he suffered from a moderately severe depressive illness, as was made clear in Dr Nehaul's report, but because he had committed offences which could be deemed to be unethical or inappropriate behaviour which could bring the company into disrepute (Reasons paragraph 23). In evidence before the Tribunal, Mr Medcroft added that the Claimant had misled the Respondent (as indeed he had at the meeting on 19 February).
(5) In these circumstances, it seems clear to us, on the facts as found, that the sole reason for dismissal related to the excluded condition, not to the legitimate impairment. We do not accept that a legitimate medical impairment underlying an excluded condition, where that condition is the reason for less favourable treatment, means that disability is a reason for the less favourable treatment. To so find would, as Mr Croxford submits, render the effect of the Regulations nugatory. That cannot have been Parliament's intention in passing the Regulations.
Accordingly, we uphold the first ground of appeal and set aside the Tribunal's finding of prima facie discrimination by reason of disability.
Justification
It is well settled that the threshold for determining whether discriminatory treatment of a disabled person is justified is very low; see Murray paragraph 23; H J Heinz v Kentrick [2001] IRLR 144 (Lindsay P, paragraph 16); indeed, surprisingly low, Collins v Royal National Theatre Board Limited [2004] IRLR 395 (Sedley LJ, paragraph 15).
Unfair Dismissal
Mutual Trust and Confidence
"In respect of the Applicant's alleged fundamental breach of contract, we found that there was not a breach on the Applicant's part. A contract of employment is not a contract of utmost good faith in which the employee is obliged to disclose absolutely everything which might affect his relationship with the employer. The non-disclosure did, in fact, have a very damaging effect on mutual trust and confidence. We can understand the Respondent's disappointment at not having been told earlier. In that respect, we accept that the Applicant may have displayed a lack of judgement. We note also, of course, that his judgement was at the time impaired by his mental illness. It is important, however, to acknowledge that the Applicant realised that the Respondent might have difficulty coming to terms with the offences of indecent exposure and accordingly sought advice from his solicitors. That was a proper course for him to take and he was entitled to act on the advice which he was given. It was not obviously wrong. To that extent, the Applicant had proper and reasonable cause for not making the disclosure. When confronted by his probation officer with an obligation to do so, he did so straightaway".
Contributory Conduct
Summary
(1) Set aside the Tribunal's finding of disability discrimination on the ground that the Claimant's disability, mental impairment, was not an effective cause of the less favourable treatment, dismissal; the sole reason was a combination of the Claimant's excluded condition, exhibitionism, coupled with his misleading the Respondent as to the true position.
(2) Uphold the finding of unfair dismissal on the procedural ground that the Respondent pre-judged the outcome of the internal disciplinary proceedings and substantively on the ground that the Respondent's failure to investigate the possibility of re-offending by the Claimant rendered the dismissal outside the range of reasonable responses.
(3) Set aside the finding that the Claimant did not contribute to his dismissal by his own conduct. The extent to which he did contribute to his dismissal must be remitted to a fresh Tribunal for re-hearing.
The Second Appeal
"Remedy
Finally, we note there is no evidence before us as to the degree of risk of re-offending posed by the applicant in early April when the respondent was considering the matter. Accordingly, it remains open to the parties to adduce such evidence either way. For, it seems to us that if at the time the applicant posed a significant risk of re-offending, the decision to dismiss might well have been justified. On the other hand, if the risk of re-offending was not significant, then the respondent would have been obliged to retain the applicant's services, given that it had already satisfied itself that the applicant would have been able to get about with the help of his wife and his friends. We are not, of course, able to express a concluded view about that matter, and the parties are free to adduce evidence and make submissions on it, if so advised, in due course".