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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> NCH Scotland v. McHugh [2006] UKEAT 0010_06_1512 (15 December 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0010_06_1512.html |
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At the Tribunal | |
On 7 November 2006 | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR M SIBBALD
MR R THOMSON
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
For the Appellant | Mr Ronald Mackay (Solicitor) Messrs Burness Solicitors LLP 242 West George Street Glasgow G2 4QY |
For the Respondent | Ms Linda R Marsh (of Counsel) instructed by: Messrs Harper MacLeod LLP 14-18 Cadogan Street Glasgow G2 6QN |
SUMMARY
Disability Discrimination – Reasonable adjustments
The EAT would follow the judgment of the EAT most recently upholding the British Gas line of authorities set out in Tarbuck. A Tribunal is under a duty to decide whether reasonable adjustments have been made irrespective of whether they were actually considered by an employer. The trigger point for a duty to arise is when the employee who is absent indicates that she will be returning to work. The Home Office v Collins applied. If adjustments will have no practical effect in mitigating the substantial effect on a disabled person of the atmosphere in which she works, there is unlikely to be any breach of the duty to make reasonable adjustments.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The issues
a. Did the Tribunal err in failing to consider justification for the breach of duty it found?
b. Is there a duty to consider, as well as to make, reasonable adjustments: Tarbuck v Sainsbury Supermarkets Ltd [2006] IRLR 664, the "Tarbuck point".
c. If Tarbuck is not to be followed and there is a duty to consider, was there yet a failure to consider and consult the Claimant on such adjustments?
d. Was any duty triggered while the Claimant was off work and indicating no return date: The Home Office v Collins [2005] EWCA 598 CA. The "trigger point".
e. Was there a duty to make adjustments which were futile or not practicable in removing the disadvantage: The Home Office v Collins, per Ouseley J: the "utility point".
f. Was the complaint out of time? The "futility point".
The facts
"2. …
(a) The respondents, as their name suggests, are the Scottish arm of a well known United Kingdom childrens' charity. The claimant, who is at present 50 years of age, is a qualified social worker and, by April 1997 she had a wealth of experience throughout the broad range of social work activities with an expertise in placing children with families. Up to April 1997 she had been employed by various local authorities in Scotland. The respondents deliver services through a number of projects. In the early part of 1997 they advertised for a person to take up the position of Project Manager for a brand new project named Community Attendance Placement Scheme (hereinafter referred to as CAPS). The claimant successfully applied for this position and she commenced employment with the respondents on 14 April 1997. In this role as Project Manager the claimant was generally responsible for promoting the aims of the project, to be involved in public relations exercises with local authorities, to manage a group of staff and to help them acquire new skills with a view to assisting foster carers. The respondents devoted a considerable amount of their resources to the success of this project."
"e) Turning now to the disability discrimination, case which is a case resting entirely on the alleged failure of the respondents to consider reasonable adjustments, it is worth pointing out that the duty to consider these adjustments rests on the employer — see Cosgrove —v- Caesar & Howie [2001] IRLR 653. To her credit the claimant did suggest a training role in some shape or form and the respondents rejected that. The Tribunal was satisfied that the respondents were entitled to do so. However, the matter does not and cannot remain there. The plain fact was that the respondents were principally concerned with getting the claimant back to work on a full time basis at CAPS. The Tribunal was in no doubt that they would have entertained a phased return. The Tribunal was in no doubt also that if that could not have been achieved then they were prepared to offer the claimant an equivalent managerial role if a suitable vacancy occurred. Mrs Sullivan stated in her evidence that, in addition to considering a staged return, she also considered a variation of the claimant's hours, partial tasks and placing the claimant with other managers. What the claimant needed, however, as she correctly stated in her evidence, was physical support. The respondents well knew what her issues of concern were. In particular they knew that the claimant was complaining about being overworked and inadequately supported.' There was no evidence led on their behalf that they ever considered these issues or that they said to the claimant that they were capable of being addressed so that there would be an acceptable reduction in her working hours, a reduction in her on call duties and an increase in supervision and support. These were exactly the matters that were of interest to the claimant. The Tribunal was in no doubt that, had the respondents applied their mind to these issues, then there was a very good chance that this would have facilitated her return to work. This may well have been achieved by altering her working hours and providing the necessary support. . There was evidence that the number of senior practitioners had or was about to be increased to 4 by the time the claimant went off work and Mr Turnbull was, of course, in place by that time and had made his sympathies with the claimant's situation well known to her. What the respondents needed to do in those circumstances was to spell out to the claimant how they saw an acceptable level of work and support being given to her in practical terms. This they failed to do. They failed to consider and spell out to the claimant how her role could be structured and organised to take account of her concerns. The Tribunal was in no doubt that it should have been possible for the respondents to make these adjustments without any significant financial consequence to them. The respondents were well aware that the claimant was a disabled person within the meaning of the 1995 Act when they were considering the issue of getting her back to work. The Tribunal concluded that the Claimant was placed at a substantial disadvantage by failing to, for example, provide her with support from a colleague which would enable her to carry out her duties and responsibilities as set out in the statement of particulars of employment (R9) where her working week is stated to be 35 hours. It seemed to the Tribunal that the respondents simply did not ever take on board the actuality of the claimant's working hours which were far in excess of 35 hours per week, the continuous level of inadequate staffing against ever increasing targets for carers and placements and inadequate support and supervision. That, to a very great measure, was caused by the failure of Mr Connolly to appreciate how much the claimant was doing and how much this must have been taking its toll on her. It was, therefore, not surprising that the respondents failed miserably to consider any reasonable adjustments to the claimant's working arrangements given that Mr Connolly seemed to view the claimant working excess hours against this background as being entirely reasonable. To be wholly fair to the respondents, they were being faced by a dual approach from the claimant from December 2001 onwards. On the one hand she was giving them a signal that she wanted to terminate her employment on ill health grounds whilst on the other hand and at the same time she was engaging with them in discussions and suggesting a return to work in a training role. The Tribunal concluded that, whilst these, mixed signals were being given to them, it did not in any way absolve them from their duty to consider reasonable adjustments under Section 6(1) of the 1995 Act. Accordingly and for the reasons stated the Tribunal find that the respondents have failed in this duty."
The legislation
" (b) Any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded."
(a) The extent to which taking the step would prevent the effect in question;
(b) The extent to which it is practicable for the employer to take the step.
Discussion and conclusions
Justification
The Tarbuck point
"31. It was necessary for the Appellants to consider their duty under s6 of the 1995 Act."
This authority was not shown to the EAT in Tarbuck. It was a case where there was consultation with the employee but she was not fit to return to work. We will return to this case when we consider the "trigger point".
Consideration and consultation on adjustments
The trigger point
"[31] It was necessary for the Appellants to consider their duty under s 6 of the 1995 Act. The requirement was triggered but in a situation where the proposed arrangement or adjustment suggested was a phased return to work and nothing else. Such a proposal does not fit easily into a section which contemplates adjustments to manage disability while at work but I assume, for present purposes, that it comes within the definition. That being so, and if, following the decision to grant a further medical assessment, the evidence in September 2002 had been that the Respondent was fit to commence a phased return to work, different considerations would have arisen. That was not the evidence, however, and given the length of the absence and other circumstances, s 6 did not require the Appellants to delay their decision further. Since the Respondent could not return to work at all, consideration of part-time working did not arise. Nor, on the present facts, was it incumbent on the Appellant to provide, or the employment tribunal to require them to provide, further financial or operational reasons why they should, by virtue of s 6, again have extended the period before which a decision to dismiss would be taken. The absence was of very considerable length.
[32] In my judgment, the employment tribunal were entitled to find that the employer had taken such steps as were reasonable, in all the circumstances of the case. That is the s 6 issue to which submissions have correctly been directed. If that is established, justification under s 5(1)(b) is also established. The factors which establish that there is no breach of the s 6 duty also establish justification under s 5(3) by providing a reason for dismissal which is material to the circumstances of the case and substantial. (Post Office v Jones [2001] EWCA Civ 558, [2001] ICR 805)
[33] The essential finding of fact is clearly stated, and repeated, in para 6 of the employment tribunal's decision and on the evidence was entirely justified. By September 2002, the Respondent had been absent from work for over a year and this had followed a poor attendance record during the first six months of employment. Two extensions of the probationary period had been granted. In January 2002, return to work in 6 to 8 weeks was contemplated. The Respondent had still not returned to work by September 2002 and the prognosis on 22 August was that the Respondent should be able to return, on a part-time basis, in "3/6 months". A sick note covering four weeks from 10 September 2002 was submitted. The Respondent had been kept informed of the position and interviewed.
[34] In those circumstances, the tribunal were entitled to conclude that it was reasonable for the Appellants not to pursue the possibility of a phased return to part-time work until the Respondent could indicate a definite date for her return to work for any period of time. The tribunal noted that all material times the Respondent was medically certified as unfit to return to work."
The application of that approach, with its trigger date, arises in connection with the Tribunal's finding that the failure was to provide physical support. Yet at all relevant times, the Claimant was presenting no willingness or ability to return to work, nor was that the medical evidence. The highest it could be put in the documents which were supplied to us, in addition to the core bundle, is that on 7 May 2004 the Respondent was in receipt of an eight-week medical certificate and as she had shown some improvement, the Respondent wished to have her medically examined again. It is true that as long ago as 4 February 2003 a consultant psychiatrist had indicated her opinion that the Claimant was fit to work, but that was not a consistent view or one which was taken at the time. Given that the Claimant was absent for three years, the Respondent's intention to obtain independent medical evidence of her fitness to return was entirely correct.
The utility of the adjustments
"[42] The step which it was said should reasonably have been taken for the purposes of s 6 of the 1995 Act was to offer part time work instead of full time work. Assuming that to be within the scope in principle of reasonable steps, such an offer would plainly not have been a reasonable step by reference to s 6(4)(a), because it could not prevent the effect in question. The employee was not ready to return to work after a long absence, even if part time work were offered, and whatever she herself might have hoped. As the ET found, she would not be ready to return for some months yet.
[43] The ET did not make the error attributed to it by the EAT of regarding the employer's policy of not offering part time work to someone until they were ready to return to work as the simple answer to the reasonableness of taking that step. It considered that issue in the light of the employee's employment history and prognosis as well. But it cannot be regarded as an irrational policy, even if it may not be the complete answer on reasonableness."
The time bar point
"In my judgment neither of these points is a good one. The failure to make adjustments is an omission. The Respondents are omitting to do what (in the Appellant's case) they are obliged to do. They are not doing any act, continuing or otherwise. As is made clear by Southampton City College v Randall [2006] IRLR 18 a proper assessment of what is required to eliminate the disabled persons' disadvantage is a necessary part of the duty of reasonable adjustment, since the duty cannot be complied unless the employer makes a proper assessment. If there had (as the Appellant contends) been no proper assessment by 11 April it is clear from the letter that there was not going to be one thereafter. That is sufficient to bring paragraph 3(4)(a) into play."
The minority judgment
Disposal