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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> E A Gibson Shipbrokers Ltd v Staples [2007] UKEAT 0263_07_1809 (18 September 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0263_07_1809.html Cite as: [2007] UKEAT 263_7_1809, [2007] UKEAT 0263_07_1809 |
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At the Tribunal | |
On 28 June 2007 | |
Before
HIS HONOUR JUDGE PETER CLARK
MR D WELCH
MR S YEBOAH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR JOHN BOWERS QC (Of Counsel) and MS LUCY BONE (Of Counsel) Instructed by: CMS Cameron McKenna Solicitors Mitre House 160 Aldersgate Street London EC1A 4DD |
For the Respondent | MR GARRETH WONG (Of Counsel) Instructed by: Messrs Bates Wells & Braithwaite Solicitors Scandanavian House 2-6 Cannon St London EC4M 6YH |
DISABILITY DISCRIMINATION
Reasonable adjustments
Less favourable treatment
Adequacy of reasons
Sick pay as a reasonable adjustment. Other adjustments which could prevent substantial disadvantage to the Claimant (dismissal). The 'Tarbuck' point. Adequacy of reasons.
Appeal allowed and issue remitted to same Employment Tribunal for reconsideration.
HIS HONOUR JUDGE PETER CLARK
Factual background
DDA
(1) direct discrimination 'on the grounds of a person's disability, which is not open to justification; Section 3A(5) and (4);
(2) disability-related discrimination, which is open to justification; Sections 3A(1) and (3), and we would add, 3(6);
(3) failure to make reasonable adjustments; Sections 3A(2), 4A and 18B.
"(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."
(1) Is the Claimant at a substantial disadvantage in comparison with the non-disabled comparator?
(2) Is it reasonable for the Respondent to make adjustments?
(3) Would those adjustments prevent the relevant provision, criterion or practice (PCP) having that effect?
We shall return to that formulation later in this judgment.
(a) the relevant arrangements (now PCP) made by the employer
(b) the relevant physical features (immaterial here)
(c) the identity of non-disabled comparators (if appropriate)
(d) the nature and extent of the substantial disadvantage suffered by the Claimant.
The Employment Tribunal decision
The Employment Tribunal's conclusion that the Respondent had failed in its duty to make reasonable adjustments falls into 2 categories:
(a) a phased return to work for the Claimant; reduced responsibilities and possible alternative employment (Reasons, paragraphs 76-89)
(b) sick pay during February 2006.
At paragraph 89 of their Reasons, having found a failure on the part of the Respondent to make the adjustments under category (a) above, the Employment Tribunal went on to find that had the adjustments been made the Claimant would not have been dismissed; consequently he was subjected to disability-related discrimination under Section 3A(1) which could not be justified. They reached a similar conclusion in relation to the sick pay adjustment (paragraph 93).
The Appeal
(1) Inadequate reasons given by the Employment Tribunal for their finding of a breach of duty in relation to what we have described as the category (a) adjustments (Reasons)
(2) The 'Tarbuck point'
(3) Sick pay.
It is convenient to take those issues in a slightly different order. We begin with:
The Tarbuck point
Reasons
"75 The provisions of section 4A of the Act are set out above. As Mr Wong pointed out, the "provision criterion or practice" in question can include the requirements of the job. The "substantial disadvantage" in question in these proceedings is the dismissal of a Claimant. If there are adjustments which the employer could have made to prevent the dismissal taking place, then it is the duty of the employer under section 4A to take such steps if they are reasonable in all circumstances of the case. The steps must be such as to prevent the provision, criterion or practice putting the employee at the substantial disadvantage. In other words, they must be steps which would have prevented the dismissal being effected. The examples of the steps which it may be reasonable to take are now set out in section 18B(2) of the Act. The factors to which particular regard must be paid in considering the issue are set out in section 18B(1)."
At paragraph 76 the Employment Tribunal set out the following adjustments suggested by Mr Wong on behalf of the Claimant:
"76.1 a phased return to work;
76.2 additional support to enable the Claimant to get up to speed on market conditions;
76.3 a reduction in his working hours or duties;
76.4 homeworking;
76.5 reduced travel."
"89 We therefore find that the Respondent failed in its duty under section 4A of the 1996 Act to make reasonable adjustments such as would have prevented the Claimant from being dismissed. That results in a finding of discrimination under section 3A(2). We also find that the Claimant was discriminated against under Section 3A(1) because the dismissal could not have been justified under section 3A(1)(b) on the assumption that the Respondent had made such reasonable adjustments which would have prevented the dismissal taking place."
(1) How has the Employment Tribunal applied the burden of proof, as explained by Elias J in Project Management Institute v Latif (UKEAT/0028/07/CEA. 10 May 2007), paragraphs 54-55?
(2) How would the steps suggested by the Claimant have prevented his dismissal?
(3) To what extent did the Employment Tribunal take into account their findings (see particularly Reasons paragraphs 80-81) that the Respondent failed to consider the possibility of a phased return to work; reduction in the requirement on the Claimant to travel and entertain clients; working from home or assisting with the problems caused by the resignation of 9 brokers and to discuss these matters with the Claimant as the basis for their conclusion that the Respondent had failed to make reasonable adjustments? If they did so, that approach would conflict with the Tarbuck approach.
Sick pay
Disposal