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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Department of Work and Pensions v Boyers (DISABILITY DISCRIMINATION) [2020] UKEAT 0282_19_2406 (24 June 2020) URL: https://www.bailii.org/uk/cases/UKEAT/2020/0282_19_2406.html Cite as: [2020] UKEAT 0282_19_2406, [2020] UKEAT 282_19_2406 |
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At the Tribunal | |
On 28 February 2020 | |
Before
MATHEW GULLICK, DEPUTY JUDGE OF THE HIGH COURT
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
- - - - - - - - - - - - - - - - - - - - -
For the Appellant | MR ANTOINE TINNION (of Counsel) Instructed by: Womble Bond Dickinson (UK) LLP 3 Temple Quay Temple Back East Bristol BS1 6DZ |
For the Respondent | MR STEPHEN WYETH (of Counsel) Instructed by: Slater & Gordon Haywood House North Dumfries Place Cardiff CF10 3GA |
SUMMARY
DISABILITY DISCRIMINATION
The Claimant, who was disabled within the meaning of the Equality Act 2010, was dismissed by the Respondent whilst on sickness absence. An Employment Tribunal found that the Claimant had been unfairly dismissed, contrary to the provisions of the Employment Rights Act 1996. The Tribunal also upheld the Claimant's claim that her dismissal constituted disability discrimination, contrary to section 15 of the Equality Act. The Respondent appealed against the finding that the dismissal of the Claimant was unlawful discrimination, on the basis that the Employment Tribunal had erred in law in rejecting the Respondent's justification defence.
The Employment Tribunal had accepted that the dismissal pursued two legitimate aims but held that it was not justified because it was not a proportionate means of achieving either aim. The Respondent contended that in considering the issue of justification the Tribunal had erred in law by focusing on criticism of the Respondent's decision-making process rather than conducting a balancing exercise between the needs of the employer, as represented by the legitimate aims the Tribunal had accepted were being pursued, and the discriminatory effect on the employee.
The Employment Appeal Tribunal upheld the Respondent's appeal and remitted the claim under section 15 of the Equality Act to the same Employment Tribunal for redetermination.
MATHEW GULLICK, DEPUTY JUDGE OF THE HIGH COURT
Introduction
Background to the Appeal
The ET's Decision
a. The Respondent failed to seek a report from the Claimant's GP as to the reason for the Claimant's absence and the possibility of a return to work, in a situation where the most recent medical evidence before the Respondent was the Occupational Health reports from 2014/2015 and the Claimant had managed to return to work for six weeks in September and October 2017. See paragraph 16.4 of the Judgment.
b. The Respondent failed to apply the requirements of its own policy of convening a case conference between line management and an Occupational Health adviser after the Claimant had been absent from work for three months (i.e. May 2017), and then after six months' absence (i.e. August 2017) of involving a senior civil servant to ensure that the Claimant had all necessary help and support needed to effect a return to work. Furthermore, prior to dismissing the Claimant, Denise Brough failed to consider whether the Respondent had followed its policy in these respects. See paragraph 16.5 of the Judgment.
c. The consultation with the Claimant between November 2017 and January 2018 was not reasonable. The Claimant had raised, in December 2017, two matters which the Respondent had unreasonably failed to investigate prior to dismissing her. These were the Claimant's suggestion that a GP report be obtained (in preference to what she considered to be the inaccurate Occupational Health report) and the Claimant's question to the Respondent about why the work trial at Eston had been withdrawn. See paragraph 16.6 of the Judgment.
d. Denise Brough unreasonably concluded that the Claimant was deliberately not complying with absence management procedures and was being obstructive. She also unreasonably failed to follow advice given to her by Civil Service HR casework by failing to check on the reasonableness of the work trial arrangements and if alternative roles and adjustments had been offered to the Claimant at the end of the trial to assist her back to work. See paragraph 16.7 of the Judgment.
e. The Respondent did not give "any serious thought to any alternative to dismissal but went ahead in a preordained way to dismiss the Claimant". See paragraph 16.8 of the Judgment.
"15.9 We move on to consider whether in moving to dismiss the claimant, the respondent was pursuing one or more so called legitimate aims. We note that it was submitted by Mr Tinnion that the aims the respondent was pursuing were two-fold: first protecting scarce public funds/resources and secondly reducing the strain on other employees of the respondent caused by the claimant's absence. It was said that the respondent had expended huge resources of time in managing the claimant during her illness and that the claimant's absence impacted on her colleagues who were required to cover her duties while still providing an adequate service to the customers of the respondent.
15.10 We accept that the two aims advanced were legitimate aims in the context of the business of the respondent and its duties towards its employees and its customers.
15.11 We turn therefore to the question of whether the respondent acted in a proportionate way in pursuance of those aims in moving to dismiss the claimant when it did.
15.12 We have noted the authorities referred to Mr Tinnion in respect of this question as referred to in the Appendix B annexed to written submissions. We note that we must afford a substantial degree of respect to the judgment of the respondent's decision maker and that we are to use our common sense and knowledge as an industrial jury to ask whether the dismissal was proportionate. Having carried out that exercise, we conclude that it was not proportionate for the respondent to have moved to dismiss the claimant when it did for the following reasons:
15.12.1 When she dismissed the claimant, DB had no up to date medical evidence before her. We accept the claimant had refused an OH referral in the early days of her absence in February 2017 and when she had undertaken two assessments in August 2017, she had refused to release the resulting report (as she was entitled to do) but the fact remains that the respondent moved dismiss an employee with over 12 years' service on grounds of capability without any current medical evidence before it. When asked by the Tribunal whether she had considered asking the claimant to agree to provide a report from her GP (whom the claimant confirmed on 19 December 2017 she was seen regularly) DB replied that it was not usual to go to the GP of an employee and the standard procedures to be followed did not allow for that step to be taken. That approach showed no appreciation that the claimant was a disabled person and no thought was given at all to the possibility that the reason the claimant was failing to co-operate (as DB perceived her to be) could be a symptom of the disability which was the cause of the absence in the first place.
15.12.2 The absence of the claimant was managed first by her line managers and then the claimants submitted a grievance against her then current line manager and her predecessors. That should have alerted the respondent to a need to have the management of the claimant's absence removed from her line manager the responsibility given to someone who could view matters objectively. It is clear to us that the grievance submitted by the claimant in March 2017 upset AC and her line managers and others with whom she worked and the measure of that upset and frustration was clear from the message to which we refer at 6.48 above. We conclude and infer that the claimant was perceived as a nuisance by management of the respondent and a time-consuming problem who needed to be dealt with. No thought, let alone understanding, was given to the fact that the claimant might be disabled by reason of the severe anxiety which she evinced. In moving to dismiss DB had no appreciation of these matters herself and failed to take them into account.
15.12.3 We find evidence of the grudging approach of the respondent in the way the work trial was carried out at Eston. It is illuminating to note that this opportunity was identified as a result of the conspicuously fair and thorough grievance investigation carried out by DR and not as a result of the actions of the claimant's own managers. The work trial was then put in place with AC nominally still managing the claimant from Middlesbrough whilst the trial was carried out but she herself accepted in evidence to us that she had no previous experience of a work trial and did not know how one was to be carried out.
15.12.4 There were several aspects of the work trial at Eston which were not carried out reasonably. The claimant was promised weekly feedback sessions on her performance during the trial but none were provided. There were difficulties with the IT equipment provided to the claimant at the outset which necessitated an extension of the trial itself. The training provided to the claimant was limited with the person assigned to train the claimant being absent for some weeks of the trial. The trial was withdrawn in circumstances which were bound to upset the claimant: it was withdrawn without notice or explanation or discussion with the claimant or any right of review or appeal. The claimant was making her way home on the last day of the trial when she received word that the trial was deemed to have been a failure and she was to return to work at Middlesbrough. It was surprising that the claimant had been deemed unsuccessful as AC herself commented that the role should have been well within the capabilities of the claimant given that it was a purely administrative role with less responsibility than that carried by the claimant in her usual telephony role. The paperwork in respect of the trial was not completed contemporaneously, as it should have been, but was completed after the event and in the hope that there was sufficient evidence to show that the trial been unsuccessful. The trial having been deemed unsuccessful, no attempt was made by any manager to consider if other trials were potentially available and if so, where. After the trial ended the claimant had little contact from her managers and the only substantive contact was a letter from AC advising that the case had been referred to DB for a decision.
15.12.5 DB recognised the claimant's case as a complex one and contacted Civil Service HR casework on 5 January 2018 and received advice to the effect that she should ensure the work trial been carried out for a sufficient period of time with any appropriate adjustments to ensure the claimant was supported. She was also advised to check if alternative roles and adjustments had been offered following the end of the trial at Eston to assist the claimant back to work. DB did not see it as her role to check on the reasonableness or otherwise of the work trial arrangements or whether it had reasonably been carried out. She candidly accepted that she left those matters to the line managers and did not see it as her role to consider the question of the reasonableness of the Eston work trial or if there were other work trials available. In failing to take those steps, we conclude that DB did not act proportionately to the aims being followed in moving to dismiss the claimant when she did.
15.12.6 We note and accept that after the trial ended the claimant refused to engage face to face with DB which meant the matter became more challenging for DB to deal with but that failed to alert DB to the possibility that such action may be a symptom of a disability affecting the claimant. No further request was made of the claimant to attend an OH referral and no request was made for release of GP records or a report from the GP even when the claimant expressed her willingness for that step to be taken in her reply on 19 December 2017 (paragraph 6.72 above). No consideration was given by DB to the question of whether the claimant was a disabled person and, if so, by reason of what impairment(s).
15.12.7 DB was right to conclude that this was a complex case. Such cases require to be handled carefully and this case was not so handled. The managers of the claimant saw their role as waiting for the grievance outcome and then moving to the work trial and, with that deemed a failure, referring the matter to DB as a decision maker with a view to the claimant being dismissed. DB saw her role as simply considering the papers referred to her and considering whether the claimant could offer a return to work date. No one person took an overview of the whole case and properly considered all aspects of it including the complex medical impairments of the claimant whether one or more of them amounted to a disability. No person dealing with this matter any appreciation that the claimant was disabled by reason of anxiety by the time DB came to move to a decision in November 2017 onwards. That failure to place anyone in charge of overseeing the whole case led DB to act without a full understanding of the case and without any or any proper consideration of whether the claimant could be helped back to work. No consideration was given to the fact that the claimant had managed to return to work for six weeks Essen after a very lengthy absence which was in itself a sign of progress and a sign that a return to work was possible.
15.12.8 The attendance policy of the respondent requires case conferences to be carried out after an absence lasting more than three months and after six months of absence, a senior civil servant member must be engaged to ensure the employee is given the help and support needed return to work. These steps were not taken in this case and again this is evidence that no one had overall control the case. The matter effectively fell between the line managers and DB who each thought the other had taken or would take steps which were necessary but, in the event, those steps were taken by no one. The attendance policy of the respondent (paragraph 6.81) specifically requires all mitigating circumstances to be considered and whether reasonable steps had been taken to understand the effects of any illness suffered by the claimant. These steps were not taken by DB or by anyone else in the process which led to the claimant's dismissal.
15.12.9 The decision making process of DB was placed on hold by her when the claimant raised a grievance and that grievance was investigated by DC. The claimant appealed the outcome of that decision but DB did not consider it necessary to await the outcome of the appeal before moving on with her decision making process. That decision is on the face of it illogical but was not explained by DB: that gives us further grounds for our inference that the claimant was deemed to be a nuisance and that a decision needed to be taken to remove her from the business. When she moved to make a decision, DB did not consider any outcome other than dismissal and, with the information which was before her, that could be said to be understandable but we conclude that had the matter been carried out properly and in accordance with procedures laid down, more relevant information might have been available to DB which might have led to a different outcome.
15.12.10 In reaching our decision on this matter, we do not overlook that the claimant placed difficulties in the path of the respondent. The claimant would not engage face to face with her managers for a considerable period of her lengthy absence, the claimant would not initially agree to see OH and then, when she did, she refused to release the resulting reports and by the time of her dismissal the claimant had been absent from work for approaching 12 months – if the period of work trial did not break the period.
15.12.11 We have assessed all the above factors. We conclude that in dismissing the claimant in January 2018, the respondent did not act proportionately to the aims it was seeking to achieve. There was more than could proportionately and reasonably have been done to assist the claimant back to work particularly by building on the positive aspects of the work trial at Eston rather than concentrating on the negative aspects of that trial. Whether or not any further action would have yielded results is a very different question is one for consideration at the remedy stage of this claim and not the liability stage.
15.12 [sic] For those reason [sic] we conclude that in moving to dismiss the claimant when she did DB was not acting proportionately in relation to the aims being pursued. Accordingly, the claim of discrimination arising from disability in respect of the dismissal of the claimant is well-founded and the claimant is entitled to a remedy."
The Law
"(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.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability."
"I consider also that [Counsel for the employer] is right in his contention that the Tribunal focussed impermissibly on the decision making process which the Forces adopted in deciding to utilise A19. When considering justification, a Tribunal is concerned with that which can be established objectively. It therefore does not matter that the alleged discriminator thought that what it was doing was justified. It is not a matter for it to judge, but for courts and tribunals to do so. Nor does it matter that it took every care to avoid making a discriminatory decision. What has to be shown to be justified is the outcome, not the process by which it is achieved. For just the same reasons, it does not ultimately matter that the decision maker failed to consider justification at all: to decide a case on the basis that the decision maker was careless, at fault, misinformed or misguided would be to fail to focus on whether the outcome was justified objectively in the eyes of a tribunal or court. It would be to concentrate instead on subjective matters irrelevant to that decision. This is not to say that a failure by a decision maker to consider discrimination at all, or to think about ways by which a legitimate aim might be achieved other than the discriminatory one adopted, is entirely without impact. Evidence that other means had been considered and rejected, for reasons which appeared good to the alleged discriminator at the time, may give confidence to a Tribunal in reaching its own decision that the measure was justified. Evidence it had not been considered might lead to a more intense scrutiny of whether a suggested alternative, involving less or even no discriminatory impact, might be or could have been adopted. But the fact that there may be such an impact does not convert a Tribunal's task from determining if the measure in fact taken can be justified before it, objectively, into one of deciding whether the alleged discriminator was unconsidering or irrational in its approach. Case law is all one way on this: see Seldon v Clarkson Wright & Jacques [2012] UKSC 16; [2012] ICR 716 at paragraph 60 per Lady Hale: the aim "need not have been articulated or even realised at the time when the measure was first adopted", and per Lord Hope at paragraph 76: "..it does not matter if [the decision maker] said nothing about this at the time or if they did not apply their minds to the issue at all"; echoing the Court of Appeal's reasoning in Health and Safety Executive v Cadman [2005] ICR 1546 at para. 28. Moreover, this approach coincides with that taken to determining proportionality in applying the European Convention on Human Rights and Fundamental Freedoms, an approach which is applicable in discrimination law as it is in the territory of Human Rights (Crime Reduction Initiatives v Lawrence UKEAT/0319/13/DA, 17th. February 2014). Thus in R (SB) v Denbigh High School [2007] AC 100 the House of Lords rejected the approach of the Court of Appeal (which was that the school should have asked itself a series of questions before determining on a ban on the wearing of the jilbab), and held that what mattered in any case was the practical outcome, not the quality of the decision-making process which led to it (see especially per Lord Bingham at paragraph 31). Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19 further endorsed this."
"However the basic point being made by the [Employment] Tribunal was that its finding that the dismissal of the Appellant was disproportionate for the purpose of section 15 meant also that it was not reasonable for the purpose of section 98(4). In the circumstances of this case I regard that as entirely legitimate. I accept that the language in which the two tests is expressed is different and that in the public law context a "reasonableness review" may be significantly less stringent than a proportionality assessment (though the nature and extent of the difference remains much debated). But it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act. The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law. Fortunately I see no reason why that should be so. On the one hand, it is well established that in an appropriate context a proportionality test can, and should, accommodate a substantial degree of respect for the judgment of the decision-taker as to his reasonable needs (provided he has acted rationally and responsibly), while insisting that the tribunal is responsible for striking the ultimate balance; and I see good reason for such an approach in the case of the employment relationship. On the other, I repeat – what is sometimes insufficiently appreciated – that the need to recognise that there may sometimes be circumstances where both dismissal and "non-dismissal" are reasonable responses does not reduce the task of the tribunal under section 98(4) to one of "quasi-Wednesbury" review: see the cases referred to in para. 11 above. Thus in this context I very much doubt whether the two tests should lead to different results."
Discussion
a. The point is a short one and is apparently capable of being decided on the evidence already given to the ET rather than being dealt with afresh by a new panel unfamiliar with the case. Considerations of proportionality are in favour of remitting to the panel that has already heard the evidence.
b. The ET's Judgment was promulgated a year ago; I do not consider that the passage of time is such as to militate against the case going back to the same panel. The ET has already produced a very detailed reserved Judgment based on its notes of the evidence and there will need to be a further hearing on remedy in any event because of the finding of unfair dismissal.
c. The ET's Judgment is far from being wholly flawed. The error is in the concluding part of the analysis of the claim under section 15 of the EqA.
d. I reject Mr Tinnion's submission that the ET can be seen to have made up its mind on the issue of proportionality. The ET did not address the issue from the correct perspective. I do not consider that leads to the conclusion that its mind has been made up on the point or that it will not be willing to revisit its earlier conclusion.
e. There is no suggestion of bias on the part of the ET, and it is evident from the detailed and thorough consideration given to the various claims in the Judgment (some of which succeeded and some of which failed) that the ET has approached this case in a fair and even-handed manner. I am confident that the ET will be able to approach the case in the same way when it is remitted for redetermination.
Conclusion and Disposal