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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bury Metro Racial Equality Council & Ors v Lyle [2008] UKEAT 0466_07_1103 (11 March 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0466_07_1103.html Cite as: [2008] UKEAT 466_7_1103, [2008] UKEAT 0466_07_1103 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MRS L TINSLEY
MR B M WARMAN
2) MS M LUQMAN 3) MR S COHEN |
APPELLANTS |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
3) MR J R MACE 4) MR N A BOOTH SECOND APPELLANTS
For the Appellant | MISS D SEN GUPTA (of Counsel) Instructed by: Bury Metro Racial Equality Council Oddfellows House 94 Manchester Road Bury BL9 OTH |
For the Respondent | MISS K SMITH (of Counsel) Instructed by: Messrs Thompsons Solicitors Acresfield 8 Exchange Street Manchester M2 7HA |
SUMMARY
Practice and Procedure: Amendment
Jurisdictional Points: Claim in time and effective date of termination
Disability Discrimination: Justification
Permission to amend Notice of Appeal refused; too late, raising point not previously passed to full hearing; Respondent disadvantaged.
Step 1 grievance letter properly so found. No justification shown by Appellant for disability related discrimination.
HIS HONOUR JUDGE PETER CLARK
Background
"Dear Monaza
I enclose a further sick note for a period of 6 weeks, duly signed. I still have a problem in climbing the stairs and since my workplace is up a flight of stairs with no lift access I am afraid this leaves me no option but [sic]continue on sick leave for the time being.
I have had to contact my trade union with regard to both the accident at work and your inability to make "reasonable adjustments" to my working environment. I expect they will be in touch with you in due course."
"On 17 March the Claimant wrote to the Second Respondent again, enclosing a further sick note for a six-week period, and explaining that since she could not climb the stairs and there was no lift access, she had to continue on sick leave for the time being. She said that she contacted her Trade Union with regard to the accident at work and the Respondents' inability to make "reasonable adjustments" to her working environment. She expected that her Trade Union would be in touch with her employers in due course. In our view , this letter is crucial as it explained to the First Respondent that the Claimant would not be able to return to work for at least another six weeks, which was a significant period when she had already had one month off work. Secondly, it makes specific reference to lift access, thirdly it specifically referred to reasonable adjustments, and fourthly, it notified the First Respondent of the strength of the Claimant's feelings, given that she was to refer to her Union Representatives. Taking all of those matters together and in context, we consider that, although this letter did not specifically say so, it was [sic] grievance letter within the meaning of the Dispute Resolution Regulations. It clearly should have caused alarm bells to ring for the Respondents. We therefore find that the statutory grievance letter was sent with in the original time limit of three months from the date of the accident."
"On behalf of Ms Lyle I write to lodge a statutory grievance on the basis that Bury REC have discriminated against Ms Lyle given the failure of Bury REC to make any reasonable adjustments to allow Ms Lyle to undertake her work.
When arranging for this grievance to be heard I ask you to, please, consult with Judith Holt in this office who has my diary."
The Tribunal's conclusions
1. Limitation
It was submitted on behalf of the Claimant that (a) the failure to make reasonable adjustments as alleged was a continuing act (see DDA Schedule 3 paragraph 3) so that the claim form was presented in time at the end of that period or (b), if necessary, that the Claimant's letter of 17 March constituted a step 1 grievance letter within the initial three month period, thus extending time to beyond presentation of the form ET1 by virtue of Regulation 15 of the 2004 Regulations.
The Tribunal upheld both submissions; there was a continuing act following the guidance of the Court of Appeal in 2002 (a reference, we infer, to Metropolitan Police Commissioner v Hendricks [2003] ICR 530): reasons paragraph 7.1.2. Further, the Claimant's letter of 17 March constituted a step 1 grievance letter (paragraph 8.1, read with paragraph 6.23, to which we have referred).
Had the claim been presented outside the primary three month limitation period, the Tribunal would not have extended time under the just and equitable escape clause.
2 Detriments and adjustments
The Employment Tribunal found that the First Respondent failed to make reasonable adjustments in the following respects.
(i) Considering the installation of a stair lift.
(ii) Arranging for the Claimant to meet with representatives of the Bury Law Centre and Radcliffe at CAB at a suitable venue for the Claimant.
(iii) Whilst it would not have been a reasonable adjustment to pay sick pay at full rate after the first month of absence, the consequence of the Respondents' failure to make reasonable adjustments was that the Claimant suffered disability-related discrimination which the Respondents could not justify. One element of her consequential loss was her lost earnings (para. 8.1.8).
The Appeal
(1) Whether the Tribunal was entitled to find that the Claimant's letter of 17 March 2006 amounted to a grievance? (the grievance point)
(2) Whether the Claimant's lost earnings were recoverable when SSP was paid, and whether, in relation to those lost earnings, the Tribunal applied the justification test explained by the Court of Appeal in O'Hanlon v Customs & Excise [2007] ICR 1359 (lost earnings).
(3) Whether, in relation to justification, the Tribunal gave adequate reasons for their conclusion? (the Meek point).
The grievance point
"… a complaint by an employee about action which has employer has taken or is contemplating taking in relation to him"
Lost Earnings and the Meek Point
(1) That despite the First Respondent's limited means (para. 6.38) a reconditioned stair lift could be obtained for about £1,000 and funding for that adaptation could probably be obtained from the Access to Work programme (para. 6.39).
(2) The First Respondent's landlords would probably have consented to the installation (para. 8.10).
(3) That adjustment, together with arrangements for the Claimant to meet representatives of the local Law Centre and CAB at a suitable venue would probably have enabled her to return to work (para. 8.11).
(4) Those steps ought to have been clear to the Respondents by May or June 2006 (para. 8.12).
Conclusion