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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> South Warwickshire NHS Foundation Trust v Lee & Ors [2018] UKEAT 0287_17_1107 (11 July 2018) URL: https://www.bailii.org/uk/cases/UKEAT/2018/0287_17_1107.html Cite as: [2018] UKEAT 287_17_1107, [2018] UKEAT 0287_17_1107 |
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At the Tribunal | |
On 8 May 2018 | |
Before
HER HONOUR JUDGE EADY QC
(SITTING ALONE)
APPELLANT | |
(2) STAFFORDSHIRE & STOKE ON TRENT PARTNERSHIP NHS TRUST (3) MS S MASON |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR MUGNI ISLAM-CHOUDHURY (of Counsel) Instructed by: Mills & Reeve LLP 78-84 Colmore Row Birmingham B3 2AB |
For the First Respondent | MR NATHANIEL CAIDEN (of Counsel) Instructed by: Royal College of Nursing Legal Services Lyndon House 58-62 Hagley Road Birmingham B16 8PE |
For the Second and Third Respondents | No appearance or representation by or on behalf of the Second and Third Respondents |
SUMMARY
DISABILITY DISCRIMINATION - Disability related discrimination
Disability discrimination - unfavourable treatment because of something arising in consequence of disability - section 15 Equality Act 2010
Mrs Lee ("the Claimant") was employed by Staffordshire and Stoke as a Nurse Specialist for nearly five years. Mrs Mason was her line manager. She had left to take up an opportunity with a private health services provider ("Ark") but after a month decided to look for another position in the NHS and was made a conditional offer of employment by South Warwickshire. On taking up the Claimant's references, South Warwickshire was concerned by the reference from Ark, which related to a position that was similar to that for which the Claimant was applying. It was also influenced, however, by a reference from Mrs Mason (for Staffordshire and Stoke), which the ET found to have been discriminatory for the purposes of section 15 EqA. South Warwickshire decided that it should withdraw its offer of employment to the Claimant. In considering its reasons for this decision, the ET concluded that the Mason reference had been more than a minor influence; the burden of proof had passed to South Warwickshire to show that the withdrawal of the conditional offer had nothing whatsoever to do with the discriminatory Mason reference but it had failed to discharge that burden. Although the ET accepted that it was a legitimate aim for South Warwickshire to recruit an employee who was capable in all respects of undertaking the requirements of the role in question (in compliance with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014), it concluded that there were less discriminatory means of achieving that aim so far as the content of the Mason reference was concerned (the 2014 Regulations envisaging that reasonable adjustments would be made). In the circumstances, it upheld the Claimant's claim under section 15, allowing that the precise determination as to the extent to which the Mason reference contributed to South Warwickshire's decision would be a matter for any remedy hearing. South Warwickshire appealed.
Held: dismissing the appeal.
The evidence of the relevant decision-taker before the ET had been that both references had influenced her decision to withdraw the job offer. The ET had correctly asked itself the questions identified in Pnaiser v NHS England [2016] IRLR 170 and had concluded that, on the evidence, the burden of proof had shifted to South Warwickshire to demonstrate that the decision had nothing whatsoever to do with the discriminatory reference provided by Mrs Mason and Staffordshire and Stoke but that it had failed to discharge that burden. On the evidence, that was a permissible conclusion and disclosed no error in approach. As for the question of justification, this was not a case where it was only relevant to consider whether the policy or rule laid down by the 2014 Regulations was justified; there was a discretion left to South Warwickshire how to implement the Regulations in individual cases and the ET had therefore properly had regard to the question of justification in the Claimant's case. Doing so, it had been entitled to find that South Warwickshire had not made good its defence.
HER HONOUR JUDGE EADY QC
Introduction
The Relevant Background and the ET's Decision and Reasoning
"6.31. … It described her time keeping and attendance as 'Excellent' her 'sense of responsibility' as 'Fair' and her 'personal (transferable) skills e.g. interpersonal skills initiative/team working' as 'Good'. In the box 'reason to leave' was stated the following 'Unable to cope with complex community packages, such as family dynamics and challenging situations. Finds it hard to keep with [sic] and maintenance of staff competencies. No work life balance due to working on call and having to cover the occasional weekend shifts'. In the box 'general remarks/additional comments' was the following statement 'Sue has only been with us a few months and has found it difficult to keep up with the demands and pressure's [sic] that come with community complex cases. Sue has excellent clinical skills that would benefit any potential employer'."
"6.47. … by Victoria Brown's reference to the claimant being "unable to cope with complex community packages …" because this was exactly the kind of work undertaken by the district nursing team and the claimant would be expected to undertake clinical work herself and support and lead the rest of the team in their clinical work. …
6.48. Debra Martin was also concerned that the Ark reference said that the claimant "Finds it hard to keep with [sic] and maintenance of staff competencies." A key component of the Professional Lead role was identifying and ensuring the training needs of staff were met, undertaking staff appraisals and supporting new starters in the team. The geographic remit of the district nursing team was wide and rural and staff spent most of their time away from base working alone. Learning and community working is a challenge for both staff and managers requiring strong and effective leadership. It concerned Mrs Martin that the claimant might not be able to lead a team, particularly in the circumstances in which the district nursing team operated.
6.49. Debra Martin was also concerned that the Ark reference stated that the claimant had "found it difficult to keep up with the demands and pressures that come with community complex pressures" because this is related directly to the work of the Professional Lead who led a team delivering complex care packages in the community and the pressure of community work was huge; balancing demand versus capacity was a daily issue. …"
"6.50. … [she] observed that the claimant had left her post because she could no longer drive or kneel for long periods of time. Although she regarded the claimant's absence history as 'significant when written down' she expected such absences after two knee operations. She had managed staff who had had knee operations and despite lengthy absences post operatively the operations had been very beneficial. The claimant had seemed well at interview and … Ark (her most recent employer) had described her time keeping and attendance as excellent … [H]er expectation was that the knee problems would have been resolved by surgery and the role itself was not a physical nursing role [although] she would have sought further advice from Occupational Health about whether the claimant was a disabled person. She was aware … of the duty to make reasonable adjustments … and had made adjustments in the past for staff and accepted that on reading the reference again she could see from its contents that it appeared she had a disability."
"6.55. … Despite her evidence in chief that the claimant's sickness absence history was not a concern in her mind and that her concern was the comments made in the Ark reference Mrs Martin accepted under cross-examination that both references had influenced her decision to [withdraw the offer] …. She sought to resile from this when re-examined but we conclude that her evidence under cross-examination was credible and is accepted. It is unlikely that she would have attempted to seek comments from [Mrs Mason] … about the reference if its contents were of no concern whatsoever to her and her evidence was corroborated by the relevant contemporaneous internal correspondence which refer to the 'references' … and that they had been found by her to be unsatisfactory."
"30. … the overall tenor of the reference was an unnecessary (and repeated) emphasis on sickness when a reference is expected to and should provide a balanced overview of an individual's capabilities."
"36. Following Pnaiser, as far as [South Warwickshire] … is concerned the burden of proof having passed to [it] … to show that the withdrawal of the conditional offer had nothing whatsoever [to] do with the reference provided by [Staffordshire and Stoke and Mrs Mason] … we conclude that [South Warwickshire] … has failed to discharge that burden. We have accepted [Debra] Martin's evidence under cross examination that her decision to do so was based on both references. We also conclude that [Mrs Mason's] … reference had more than a minor influence on her decision to withdraw the conditional offer to the claimant, although the extent to which it contributed having regard to the findings … [made] above will be a matter for the remedy hearing."
"39. … Regulation 19(1) of the 2014 Regulations makes it clear that the obligation on an NHS employer is to seek to employ people who 'after reasonable adjustments' are capable of performing tasks intrinsic to the role. Balancing the discriminatory effect of the withdrawal of the offer and [South Warwickshire's] … needs we conclude that it was not proportionate and there were other less discriminatory means to achieve that aim. These do not in our judgment include a trial period as submitted by … [the Claimant] but (as Debra Martin said she would have done) further enquiries could have been made of Occupational Health (including concerning any reasonable adjustments) and/or of [Mrs Mason] … (as she attempted to do) and/or of the claimant before deciding in the light of all the information to hand whether to withdraw the offer."
The Relevant Legal Principles
"(1) A person (A) discriminates against a disabled person (B) if -
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim."
"36. On its proper construction, section 15(1)(a) requires an investigation of two distinct causative issues: (i) did A treat B unfavourably because of an (identified) "something"? and (ii) did that "something" arise in consequence of B's disability."
"37. The first issue involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant "something". …"
"31. …
(b) … just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The 'something' that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.
(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment …"
"(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision."
"32. Section 1(2)(b)(ii) requires the employer to show that the proposal is justifiable irrespective of the sex of the person to whom it is applied. It must be objectively justifiable (Barry v Midland Bank plc [1999] ICR 859) and I accept that the word "necessary" used in Bilka-Kaufaus [GmbH v Weber von Hartz] [1987] ICR 110 is to be qualified by the word "reasonably". That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word "reasonably" reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the employers' submission (apparently accepted by the appeal tribunal) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances."
"19. Fit and proper persons employed
(1) Persons employed for the purposes of carrying on a regulated activity must -
(a) be of good character,
(b) have the qualifications, competence, skills and experience which are necessary for the work to be performed by them, and
(c) be able by reason of their health, after reasonable adjustments are made, of properly performing tasks which are intrinsic to the work for which they are employed.
(2) Recruitment procedures must be established and operated effectively to ensure that persons employed meet the conditions in -
(a) paragraph (1), …
…
(3) The following information must be available in relation to each such person employed -
(a) the information specified in Schedule 3, …
…
Schedule 3. Information Required in Respect of Persons Employed or Appointed for the Purposes of a Regulated Activity
…
4. Satisfactory evidence of conduct in previous employment concerned with the provision of services relating to -
(a) health or social care, …
5. Where a person (P) has been previously employed in a position whose duties involved work with children or vulnerable adults, satisfactory verification, so far as reasonably practicable, of the reason why P's employment in that position ended.
6. In so far as it is reasonably practicable to obtain, satisfactory documentary evidence of any qualification relevant to the duties for which the person is employed or appointed to perform.
7. A full employment history, together with a satisfactory written explanation of any gaps in employment.
8. Satisfactory information about any physical or mental health conditions which are relevant to the person's capability, after reasonable adjustments are made, to properly perform tasks which are intrinsic to their employment or appointment for the purposes of the regulated activity."
South Warwickshire contends that, if the policy laid down in the 2014 Regulations was justified, that should be sufficient.
"54. … there is no inconsistency between the ET's rejection of the claimant's claim of unfair dismissal and its upholding his claim under section 15 EqA in respect of his dismissal. This is because the test in relation to unfair dismissal proceeds by reference to whether dismissal was within the range of reasonable responses available to an employer, thereby allowing a significant latitude of judgment for the employer itself. By contrast, the test under section 15(1)(b) EqA is an objective one, according to which the ET must make its own assessment: see Hardy & Hansons plc [2005] EWCA Civ 846; [2005] ICR 1565, [31]-[32], and Chief Constable of West Yorkshire Police v Homer [2012] UKSC 15; [2012] ICR 704, [20] and [24]-[26] per Baroness Hale of Richmond JSC, with whom the other members of the Court agreed."
And the Court of Appeal did not accept that Underhill LJ in O'Brien had laid down a different approach, Sales LJ opining:
"55. … I think it is clear that Underhill LJ was addressing his remarks to the particular facts of that case, and was not seeking to lay down any general proposition that the test under section 15(1)(b) EqA and the test for unfair dismissal are the same. No doubt in some fact situations they may have similar effect, as Underhill LJ was prepared to accept in O'Brien. But generally the tests are plainly distinct, as emphasised in Homer."
"(1) …
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
…"
"18. … given the language of section 20(3) - where the steps required are those that are reasonable to avoid the disadvantage - the question whether, and to what extent, the step would be effective to avoid the disadvantage, will inevitably always be an important one (see per HHJ David Richardson at paragraph 59 of Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins [2014] ICR 341 EAT). Thus if there was no prospect of the proposed step succeeding in avoiding the disadvantage, it would not be reasonable to have to take it; conversely, if there was a prospect - even if considerably less than 50 per cent - it could be (see per HHJ Peter Clark at paragraph 39 of Romec Ltd v Rudham UKEAT/0069/07). The reasonableness of a potential adjustment need not require that it would wholly remove the disadvantage in question: an adjustment may be reasonable if it is likely to ameliorate the damage (Noor v Foreign & Commonwealth Office [2011] ICR 695 EAT per HHJ David Richardson at paragraph 33); a, or some, prospect of avoiding the disadvantage can be sufficient (see per HHJ McMullen QC at paragraph 50 in Cumbria Probation Board v Collingwood UKEAT/0079/08 and Keith J at paragraph 17 in Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10). All that said, the uncertainty of a prospect of success will be one of the factors to weigh in the balance when considering reasonableness (see per Elias LJ in Griffiths [v Secretary of State for Work and Pensions [2017] ICR 160 CA] at paragraph 29 and per Mitting J at paragraph 18 in South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley UKEAT/ 0341/15)."
The Appeal
Submissions
The Case for South Warwickshire
The Claimant's Case
Discussion and Conclusions