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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> A v B (Disability Discrimination : no sub-topic) [2013] UKEAT 0383_11_2301 (23 January 2013) URL: https://www.bailii.org/uk/cases/UKEAT/2013/0383_11_2301.html Cite as: [2013] UKEAT 383_11_2301, [2013] UKEAT 0383_11_2301 |
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At the Tribunal | |
On 1 May 2012 | |
Before
HIS HONOUR JUDGE SEROTA QC
MR C EDWARDS
MR G LEWIS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR DAVID CAMPION (of Counsel) Instructed by: Messrs EAD Solicitors LLP Prospect House Columbus Quay Liverpool L3 4DB |
For the Respondent | MR JOHN LIVESEY (of Counsel) Instructed by: Birmingham City Council Legal Services Ingleby House 11-14 Cannon Street Birmingham B2 5EN |
SUMMARY
DISABILITY DISCRIMINATION ACT
Findings by the Employment Tribunal that the dismissal of the Claimant was neither unfair, wrongful nor discriminatory were upheld. There had been no failure on the part of the Respondent to make reasonable adjustments. The Claimant, who was disabled, had failed to show that for a reason connected with his disability he had been treated less favourably than a colleague who was not disabled.
HIS HONOUR JUDGE SEROTA QC
Introduction
"The EAT must respect the factual findings of the employment tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not 'use a fine tooth comb' to subject the reasons of the employment tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the tribunal has essentially properly directed itself on the relevant law."
"We have to remind ourselves also of the important principle that decisions are not to be scrutinised closely word by word, line by line, and that for clarity's and brevity's sake Industrial Tribunals are not to be expected to set our every factor and every piece of evidence that has weighed with them before reaching their decision. So it is for us to recall that what is out of sight in the language of a decision is not to be presumed necessarily to have been out of mind. It is our duty to assume in an Industrial Tribunal's favour that all the relevant evidence and all the relevant factors were in their minds, whether express reference to that appears in their final decision or not; and that has been well established by the decisions of the Court of Appeal in the Retarded Children's Aid Society v Day [1978 IRLR 128."
"It is often easy enough to find some ambiguity or obscurity in a judgment or determination, particularly in a field as difficult and complex as immigration, where the facts may be difficult to unravel and the law difficult to apply. If, as occurred in this case, a tribunal articulates a self-direction and does so correctly, the reviewing court should be slow to find that it has failed to apply the direction in accordance with its terms. All the more so where the effect of the failure to apply the direction is that the tribunal will be found to have done precisely the opposite of what it said it was going to do."
"Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27 at para 34."
The factual background
"Must be honest in fact and also be beyond the reach of the suspicion of dishonesty."
"Misconduct serious enough to destroy the employment contract between the employer and employee to make any further working relationship and trust impossible."
"The result will normally be summary dismissal."
"4. Did "the Claimant" offer an explanation as to why he wasn't registered?"
"The Claimant" explained that he had sent the forms in but hadn't got a response from the GSCC. "The Claimant" said that when he did eventually 'phone the GSCC he was told that they hadn't processed his application because there was a discrepancy between the information on the form and other information given to them by BCC. The registration form said there was no outstanding disciplinary action against "The Claimant" but the other information from BCC contradicted this. "The Claimant" didn't say when he had 'phoned the GSCC but I think it was probably 2005.
I asked "The Claimant" why he hadn't said anything about it. He said he didn't feel he could mention it to anyone. "The Claimant" had been the subject of a disciplinary investigation before he joined my team in 2003. He had been made very ill by it. He had had an acute mental health breakdown. "The Claimant" said that he couldn't mention the problem with the GSCC as it resurrected these mental health problems. The way I saw "The Claimant" react when I raised this with him supports this. "The Claimant" went off sick straight from this meeting.
I wasn't involved in the disciplinary action. When "The Claimant" transferred to my team in the 2003 reorganisation I was told by the Operations Manager involved, Graham Mountcastle, that the action had been dropped. I have never had anything in writing to say that it was still outstanding. Given the amount of time that has passed I'm sure it isn't."
"Because I knew you were going to take disciplinary action against me."
"Looking back, you might think I had a persecution complex but everything that I thought would happen is just rolling out."
"I believe that my managers were right and that I was not good enough to be a manager. I also felt that I did not deserve to be registered if I was professionally incapable as they clearly all seem to be believe I was."
"From the middle of 2007 onwards, I was terrified to do anything about progressing a resolution to my fears regarding my GSGC application. My initial fears about a probable third case of disciplinary action being taken against me in 2004/5, my worries in 2005/6 that the GSCC now knew of managements concerns about me, my fears about the harassment issue of 2006 coupled with the complete lack of any response to my 2007 written complaint, the apparent unwillingness to help me regarding my request for support with my 2007 NVQ 360 degree feedback and finally the fact that HR in 2007 had informed FM that my registration was not confirmed but that she had not attempted to clarify the situation with me; ALL combined to make me certain that I could not trust my managers to help me resolve the outstanding situation with the GSCC that was now terrifying me.
I still did not dare contact the GSCC directly for fear of what they would say. I was terrified that the reason that I had not heard from them was because they had received information that meant that I could not be registered yet, and they were probably waiting for my employers to resolve the issue directly with me, as I had not yet been the subject of an actual disciplinary charge."
"It is evident however that [the Claimant] knew that he was required by [the Respondent] to register with the GSCC and over a number of years did not do so. [The Claimant's] actions over a prolonged period of time represent a clear breach of the [Respondent's] code of conduct. On these grounds there is a disciplinary case to answer."
"3.41. In cross examination the claimant admitted that:-
- He knew as an employee of the Respondent that he was bound by a Code of Conduct which required integrity and openness and which acted to preserve trust and confidence between employer and employee.
- He knew that he was required to register from 1 April 2005.
- He accepted that any employee was under a duty to inform their line manager if they were not registered and went so far as to say, 'you could raise it with Fiona (Mould) and trust her'
- He understood that he knew at all times that he had to be registered after 1.4.2005 and that he would have to renew his registration every 3 years.
- He knew this was a serious matter and was aware of how important it was.
- He was aware of the consequences of non registration and became more and more afraid of disciplinary action the longer he remained unregistered without management knowing.
- He accepted that in a meeting to discuss his grievances after his suspension, he expressed the view that he would be sacked.
- He accepted he was an assistant team leader in social care and that people may have assumed that this implied he was a social worker and that such could be interpreted as breaking the terms of s.61.
- He accepted he did not try to register after the phone call to chase his application in February 2005.
- He accepted that he was at work between October 2004 and April 2005, but made the point that a further manager had been seconded to help him. He alleged that it was the first disciplinary process which started his depression, and that that disciplinary process had ended around the time he returned to work.
- He accepted that his supervision notes with his line manager made little reference to ill health - and certainly made no mention of a paralysing condition preventing him from taking action.
- He confirmed that in his view he had been unable to process or chase his registration because he was terrified of his managers saying he was unsuitable, and being told he could not be registered.
- He confirmed that at the start of the disciplinary hearing there was no medical evidence that his condition had in any way deteriorated and that all Mr Gowda had was the view of his union representatives. He had not retracted his offer to allow the hearing to proceed in his absence.
- The claimant did not say he could not give the tribunal any specifics of the then three comparators cited in his claim. These three subsequently became two as one was discounted by the claimant during the hearing."
The decision of the Employment Tribunal
The law
Unfair dismissal
"That the Respondent's actions within the disciplinary process fell within the band of reasonable responses we would expect from an employer the size of [the Respondent]."
"Quite reasonably decided to carry on."
Disability discrimination claims
"The inference from the fact is clear - that the failure to comply with management instruction, keeping that failure hidden for 3 ½ years and knowing just how seriously this would be considered, is viewed as an act of gross misconduct. The claimant was not treated less favourably than a hypothetical comparator; he failed to provide real comparators whose circumstances sufficiently matched his own. The claimant has failed to satisfy us that any other comparator would have been treated more favourably even if they had the same level of absence and other characteristics but not been disabled. The claimant has also failed to satisfy us that a non disabled person with his other characteristics would have been treated more favourably. In those circumstances the burden of proof did not shift to the Respondent."
Failure to make adjustments
"The Tribunal does not consider this to amount to a failure to adjust which led to a substantial disadvantage for the claimant. It was not the requirement to register that caused the claimant the problem but his own failure to register and to hide the fact from the Respondent."
Breach of contract
"In conclusion, the Tribunal finds that all of the claimant's claims are ill founded. The claimant was dismissed fairly for gross misconduct, he was not wrongfully dismissed and nor was he discriminated against as a disabled person."
Notice of Appeal and Claimant's submissions
Inadequate investigation
Failure to make reasonable adjustments in relation to the investigation
Wrongful dismissal
The Respondent's submissions (Generally)
The investigation
"There are a range of job titles that do not have the title "social worker" in them but which describe roles that involve a substantial amount of social work. These include roles with titles such as "Practice Manager", "Senior Practitioner", "Team Manager" …"
Was the dismissal within the range of reasonable of responses?
Failure to make reasonable adjustments
Wrongful Dismissal
The essential questions
The law
"3A Meaning of 'discrimination'
(1) For the purposes of this Part, a person discriminates against a disabled person if –
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified.
(2) For the purposes of this Part, a person also 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.
4A Employers: duty to make adjustments
(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.
(2) In subsection (1), "the disabled person concerned" means –
(a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;
(b) in any other case, a disabled person who is –
(i) an application for the employment concerned, or
(ii) an employee of the employer concerned.
(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –
(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or
(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).
18B(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to—
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is practicable for him to take the step;
(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of his financial and other resources;
(e) the availability to him of financial or other assistance with respect to taking the step;
(f) the nature of his activities and the size of his undertaking;........"
(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments—
(a) making adjustments to premises;
(b) allocating some of the disabled person's duties to another person;
(c) transferring him to fill an existing vacancy;
(d) altering his hours of working or training;
(e) assigning him to a different place of work or training;
(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;
(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);
(h) acquiring or modifying equipment;
(i) modifying instructions or reference manuals;
(j) modifying procedures for testing or assessment;
(k) providing a reader or interpreter;
(l) providing supervision or other support.
(3) For the purposes of a duty to make reasonable adjustments, where under any binding obligation a person is required to obtain the consent of another person to any alteration of the premises occupied by him—
(a) it is always reasonable for him to have to take steps to obtain that consent; and
(b) it is never reasonable for him to have to make that alteration before that consent is obtained.
(4) The steps referred to in subsection (3)(a) shall not be taken to include an application to a court or tribunal.
(5) In subsection (3), "binding obligation" means a legally binding obligation (not contained in a lease (within the meaning of section 18A(3)) in relation to the premises, whether arising from an agreement or otherwise.
(6) A provision of this Part imposing a duty to make reasonable adjustments applies only for the purpose of determining whether a person has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such................"
We note that in a number of authorities such as Mid-Staffordshire General Hospital NHS Trust v Cambridge [2003] IRLR, Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664, HM Prison Service v Johnson [2007] IRLR 951, Environment Agency v Rowan [2008] ICR 218 and Smith v Salford NHS Primary Care Trust UKEAT050710 it has been held that adjustments that do not have the effect of alleviating the disabled person's substantial disadvantage are not reasonable adjustments within the meaning of the Act. Matters such as consultations and trials, exploratory investigations and the like do not qualify. So we express some doubts as to how the duty to make reasonable adjustments would apply in relation to the conduct of disciplinary proceedings. We do not need to decide that point.
Conclusion
Reasonable adjustments
Wrongful dismissal