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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Cumbria Probation Board v. Collingwood [2008] UKEAT 0079_08_2805 (28 May 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0079_08_2805.html Cite as: [2008] UKEAT 0079_08_2805, [2008] UKEAT 79_8_2805 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR H SINGH
MR D CHADWICK
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
(Para 40 corrected: Rule 33(3). 7 August 2008)
For the Appellant | MR H MENON (of Counsel) Instructed by: Messrs Burnett Solicitors 6 Victoria Place Carlisle Cumbria CA1 1ES |
For the Respondent | MR J RATLEDGE (of Counsel) Instructed by: Messrs Hough Halton & Soal Solicitors 32 Abbey Street Cumbria CA3 8RJ |
SUMMARY
DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
2002 Act and pre-action requirements
The date of disability is a fact found by an Employment Tribunal on the basis of medical and other evidence. When a consultant gave a range of dates for the onset of a condition, the Employment Tribunal did not err in taking the outside bracket in context with the Claimant's own account. The Employment Tribunal's findings of discrimination taking the form of failure to adjust and harassment were upheld, the EAT rejecting appeals on preliminary points on the statutory grievance procedure and the meaning of disability.
HIS HONOUR JUDGE McMULLEN QC
Introduction
"(i) At what point in time did the claimant become a disabled person within the scope of the Disability Discrimination Act 1995?
(ii) At what point in time did the respondent know or should reasonably have known that the claimant suffered from a disability?
(iii) From the point in time when the respondent knew or ought reasonably to have known of the claimant's disability was there a failure on its part to make reasonable adjustments?
(iv)Did the respondent subject the claimant to harassment for a reason which relates to his disability?
(v) Prior to presenting his claim did the claimant submit a grievance in respect of the complaints that he is advancing before the Tribunal."
The legislation
"3.1 The Meaning of Disability
Section 1 of the Disability Discrimination Act as amended provides that a person has a disability for the purposes of the Act 'if he has a physical or mental impairment which has a substantial and long term effect on his ability to carry out normal day to day activities'. Schedule 1 of the Act gives guidance on what amounts to an impairment together with the provisions of section 18 Disability Discrimination Act 2005 and the Disability Discrimination (Meaning of Disability) Regulations 1996 and 2006. Prior to 5 December 2005 it was necessary for a mental impairment resulting from or consisting of a mental illness to be clinically well recognised. Since that date that is no longer a requirement.
3.2 Meaning of Discrimination
Section 3A(2) states that a person discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.
3.3 Section 3B(1) provides that a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of:-
(a) violating the disabled person's dignity, or
(b) creating and intimidating, hostile, degrading, humiliating or offensive environment for him.
Subsection (2) provides that conduct shall be regarded as having the above effect only if having regard to all the circumstances, including the perception of the disabled person, it should reasonably be considered as having that effect.
3.4 Section 4A of the Act provides in subsection (1) that where a provision, criterion or practice applied by or on behalf of an 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 is reasonable in all the circumstances of the case for him to have to take in order to prevent the provision, criterion or practice having that effect. Subsection (3) provides that there is no duty to make adjustments if the employer did not know or could not reasonably be expected to know that the person has a disability and is likely to be affected in the way mentioned in subsection (1). Where a duty to make reasonable adjustments arises s18B sets out supplementary provisions to be taken into account when determining whether it is reasonable for a person to have to take a particular step setting out particular matters which regard shall be had to and also giving examples of steps which a person may need to take to comply with the duty.
3.5 Section 4(2)(d) provides that it is unlawful for an employer to discriminate against a disabled person whom he employs… by subjecting him to any other detriment. Section 4(3)(a) provides that it is unlawful for an employer, in relation to employment by him, to subject to harassment a disabled person whom he employs."
The facts
"The question assumes (I think) that he is returning to his employment with the probation service. The prognosis would be better than if he were not in work. However a lot would depend on how the underlying issues had been resolved and how Steven Collingwood perceived the resolution."
"4.11 Harassment
The claimant's claim in respect of harassment was broken down by Mr Ratledge into five heads being allocation to the claimant of cases, line management, absence management, reallocation to the CRP job and the grievance. The claims relating to allocation of cases and line management occurred prior to 1st November 2005 being the time that the claimant became a disabled person and therefore these claims must fail as do the claims relating to absence management with regard to the failure to notify human resources of the claimant's sickness absence straight away together with the failure to complete the absence notification form, however, the Tribunal found that Mrs Martin's refusal to discuss matters in confidence with the claimant together with her suggestion that she was unaware of staffing issues and which subsequently led to Mrs Davidson attending the first home visit with the claimant did amount to harassment as did the respondent's continued refusal to discuss the issues that the claimant said were making him ill. The Tribunal found that the actions of the respondent were for a reason related to the claimant's disability and whilst the Tribunal accepted that they were not done with the purpose of violation the claimant's dignity or creating a hostile or offensive environment for him it accepted the claimant's evidence that it had this effect. The Tribunal considered all of the circumstances, including the particular perception of the claimant and found that it should reasonably be considered as having that effect. The remaining issues under this head which related to the lack of discussion of the occupational health service reports at the case conferences, the letter from Mrs Martin of 1 February 2006 being evasive and the minutes of the meetings on the 15 and 27 February 2006 being biased, were found by the Tribunal not to amount to harassment. The Tribunal then went on to consider the respondent's conduct in the meetings on 15 and 27 February 2006 and the respondent's insistence upon repeatedly discussing the three options to terminate the claimant's employment and the effect that his had on the claimant having regard to all of the circumstances and the reasonableness of the claimant's perception and found that this did amount to harassment this conduct creating an intimidating and offensive environment for the claimant.
4.12 When considering the claimant's reallocation to the CRP role the Tribunal considered very carefully the evidence of Mrs Davidson and that of Mr Kimberley together with the emails and letters in September and October 2005. The Tribunal also considered Mrs Martin's refusal to tell the claimant on 11 January 2006 whether or not he had been allocated to the CRP post and found that this refusal to tell him about his allocation to the role was because Mrs Davidson had decided that she no longer wished to have the claimant in her team because of his absence from work through illness and therefore she and Mr Kimberley had allocated him to the CRP role and that Mrs Martin was aware of what they had done and why. The claimant was clearly very distressed about this. Again the Tribunal found that this was for a reason related to the claimant's disability and that it had the effect of making the claimant feel degraded and humiliated, the claimant's perception in this respect being reasonable. Accordingly the Tribunal found that this did amount to harassment and which continued through to the time these proceedings were issues."
The preliminary points
Grievance
Disability
The legal principles
72. In our view, the argument accepted by the EAT and advanced before us by Ms Gill is fallacious. These provisions of the DDA are concerned with discrimination by an employer. Discrimination requires that the employer should have a certain state of mind. In the context of the DDA, an employer cannot discriminate against the employee unless he treats the disabled employee differently for a reason (present in his, the employer's mind) which is related to the employee's disability. It may be that in some cases an employer might have more than one reason for dismissing an employee; one reason might be misconduct and there might also be present in the employer's mind another reason which does relate to his disability such as the fact that the employee took a lot of time off work or had a lower productivity than other employees. The employer might decide to dismiss the employee for those combined reasons. In such a case, we would say that, if the disability-related reason had a significant influence on the employer's decision, that would be enough to found the conclusion that the dismissal was for a reason related to the employee's disability. We would add that it would be open to an ET to find that the employer's decision had been affected by the disability-related reason even though the employer had not consciously allowed that reason to affect his thinking. We would certainly accept that an employer could have an innate prejudice against disabled people just as some are prejudiced on the grounds of race or gender. What is important is that the disability-related reason must affect the employer's mind, whether consciously or sub-consciously. Unless that reason has affected his mind, he cannot discriminate."
33. "Stage 1. Was there an act by the Respondent which related to the Appellant's disability? This is a specific reference to Section 3A(1) and indeed a quotation of the statutory provision. We find it a perfectly straightforward provision. Of course we bear in mind the guidance of the Court of Appeal in Clark v TDG Ltd [1999] IRLR 318, but the words of the statute are not difficult, even without that guidance. What Clark did, however, was discourage the use of the words 'but for' in the consideration of this section. Although 'but for' is difficult to avoid entirely - indeed as was apparent from Ms Russell's own formulations at some stages, when, having rightly abjured the words, she found herself using them in the course of her illustrations, because it is difficult not to - nevertheless there is not a 'but for' test, as is sometimes the case in other areas of discrimination and employment law. It is a causation test, and a wide one because of the breadth of the words "which relate to disability". This Employment Tribunal did use on a number of occasions the words 'but for'. We have been satisfied that in analysing what they did we have been able to read what they said as if they had used the words "which relates to disability", and in most cases it has not made a difference; but we do remind Tribunals that 'but for' is not at any rate the first nor in any event the last port of call in this kind of consideration. Subsumed under this first stage in arriving at the question of whether there was an act which related to disability, are issues not only of causation but also of subjective intent. It is quite plain from the decisions to which Mr Pascall has drawn our attention of Taylor v OCS Group [2006] IRLR 613 and O'Hanlon v Commissioners for HM Revenue & Customs [2007] IRLR 404 that the subjective intent of the alleged discriminator is a factor: see Taylor at paragraph 72 and O'Hanlon at paragraphs 83 (with reference to paragraph 37 of the judgment below, which was thereby approved by Hooper LJ), and 86. It does however seem to us that because such questions relate to the workings of the Respondent's mind and not in the ordinary case to something known to the Appellant, it is unlikely that a Tribunal would be able to arrive at any decision on subjective intent until and unless the onus of explanation has transferred to the Respondent."
Also since the date of the judgment in this case is Chief Constable of Avon and Somerset Constabulary v Dolan UKEAT0522/07 where HHJ Peter Clark giving the judgment of the EAT said this:
"27. The proper approach for an Employment Tribunal to take when considering an alleged breach of s4A(1), read with s18B (and now bearing in mind the application of the 'reverse burden of proof'; s17A(1C)) was considered and guidance given by HHJ Serota QC in Smiths Detection v Berriman (UKEAT/0712/04 and 0144/05/CK. 9 August 2005. Unreported); see para. 85. That approach was endorsed by HHJ McMullen QC in Ferguson v London Borough of Barnet [2006] All E.R. (D) 192; applied by a division on which I sat in Romec v Rudham (UKEAT/0069/07/DA. 13 July 2007. Unreported); see particularly paras. 39 - 40 and further affirmed by Judge Serota in Environment Agency v Rowan [2008] IRLR 20, paras. 26 - 27.
28. The Employment Tribunal should identify:
(1) the provision, criterion or practice (PCP) applied by or on behalf of an employer, or
(2) the physical features of premises occupied by the employer;
(3) the identity of non-disabled comparators (where appropriate) and
(4) the nature and extent of the substantial disadvantage suffered by the Claimant.
38. Whilst we agree with Miss Smith that in Berriman Judge Serota was not laying down an inflexible rule that in the circumstances there mentioned there must always be medical evidence supporting a conclusion that a proposed adjustment had a real prospect of preventing the disadvantage identified, it is nevertheless necessary for the Employment Tribunal to explain, on the evidence which it has heard and the facts found, why and how far the proposed adjustment would prevent the disadvantage. On this aspect we accept Miss Fatima's submission that the Employment Tribunal, at paras. 50 and 51, has failed to answer the Romec question, which I there articulated at para. 39."
Discussion and conclusions
Finding 1
Finding 2
Harassment
52. Much of what Mr Allen said about the effect of reversing the burden of proof is correct. Mr Allen is obviously right in saying that the subsection does not require Ms Madarassy to prove a "conclusive case" of unlawful discrimination. She only has to prove facts from which the tribunal "could" conclude that there had been unlawful discrimination by Nomura, in other words she has to set up a "prima facie" case.
53. I do not, however, read paragraph 175 (or any of the other paragraphs of the tribunal's decision) as requiring Ms Madarassy to prove a "conclusive case." If the tribunal were saying that she had to do that, the latter part of its direction in paragraph 175 following the second "if so" would have been superfluous.
54. I am unable to agree with Mr Allen's contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of a difference in status and a difference in the treatment of her. This analysis is not supported by Igen v. Wong nor by any of the later cases in this court and in the Employment Appeal Tribunal. It was not accepted by the Employment Appeal Tribunal in the above mentioned cases of Network Rail Infrastructure ...paragraph 15) and Fernandez (paragraphs 23 and 24) and by the Court of Appeal in Fox (paragraphs 9-18 see above).
55. In my judgment, the correct legal position is made plain in paragraphs 28 and 29 of the judgment in Igen v. Wong.
'28. …The language of the statutory amendments [to section 63A(2)] seems to us plain. It is for the complainant to prove the facts from which, if the amendments had not been passed, the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an unlawful act of discrimination. It does not say that the facts to be proved are those from which the employment tribunal could conclude that the complainant "could have committed" such act.
29. The relevant act is, in a race discrimination case …., that (a) in circumstances relevant for the purposes of any provision of the 1976 Act (for example, in relation to employment in the circumstances specified in section 4 of the Act), (b) the alleged discriminator treats another person less favourably and (c) does so on racial grounds. All those facts are facts which the complainant, in our judgment, needs to prove on the balance of probabilities.[The court then proceeded to criticise the Employment Appeal Tribunal for not adopting this construction and in regarding "a possibility" of discrimination by the complainant as sufficient to shift the burden of proof to the respondent.]'
56. The court in Igen v. Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.
57. 'Could conclude' in section 63A(2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of an adequate explanation" at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.
58. The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim."