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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Paul v. National Probation Service  UKEAT 0290_03_1311 (13 November 2003)
Cite as:  UKEAT 0290_03_1311
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|At the Tribunal|
|On 25 June 2003|
THE HONOURABLE MRS JUSTICE COX
MR B BEYNON
MISS S M WILSON
Transcript of Proceedings
|For the Appellant||MARTIN KURREIN
Disability Rights Commission
The Arndale Centre
Manchester M4 3AQ
|For the Respondent||DAMIAN McCARTHY
Messrs Russell Jones & Walker Solicitors
324 Grays Inn Road
London WC1X 8DH
THE HONOURABLE MRS JUSTICE COX
The Relevant Facts
10 "Mr Paul's medical records indicate that he first experienced panic attacks during 1991. This was thought to be due to his inability to handle stress in life and he also had some financial pressures at that time. He was referred to a Psychologist at All Saints Hospital, in Chatham. Assessment by the Psychologist revealed that his then problems were due to his unhappy childhood, during which time it was felt that he probably suffered emotional neglect from his mother. There were also some difficulties in his marriage and business. In spite of psychological intervention, and counselling his depression and anxiety continued into 1996. During 1997 he was assessed by a Psychiatrist in Medway Hospital, who felt that Mr Paul was not exhibiting any signs of depression and he was accordingly referred for counselling service, from which he appeared to have benefited, according to the counsellor's closing report in February 1997. He was reviewed by Dr H Youssef, Consultant Psychiatrist, in Medway Hospital, during December 1997 and he felt that Mr Paul was not suffering any major depressive illness, or hypermania, but basically was a cyclothymic personality and advised him to reduce the dose of Seroxat, on which he has been for a considerable length of time. Mr Paul continues to be under regular follow-up, under the care of a Consultant Psychiatrist and he is on long-term medication with Fluoxetine, for his chronic depressive illness.
In view of the chronicity of his problem, the prognosis has got to be guarded and he is likely to be on medication for his illness for the foreseeable future.
Dr. M R Sastry"
11 "Mrs Bader took the view that the post of Community Service Supervisor was particularly stressful and she was aware of people who had had to take sick leave from that position because of its challenging and stressful nature. She formed this view because of the fact that the supervisor is solely responsible for the organisation of the work, provision of the materials and tools, and driving the offenders to the site. In addition, she considered that coping with the challenging behaviour of some offenders was also stressful.
12 Having considered the completed occupational health questionnaire and the doctor's report, Mrs Bader formed the view that it would not be fair on Mr Paul to put him in such a stressful job, albeit only for one day a week. She considered, particularly given his lengthy absence from employment, that it would be best to put him in a stress-free job and review his progress. She felt that his situation should be reviewed in three months and the Community Service Supervisor job could then be offered to him if he was reassessed as fit. Such reassessment would involve a review of his sickness absence during the three months, his work performance and a further health review. Mrs Bader therefore informed the Respondent of her conclusions and recommended that Mr Paul was fit for the handyman role, but that he was not currently fit to undertake the CSS role. She also recommended that the situation should be reviewed in three months time."
"Unfortunately due to an unsatisfactory Occupational Health report we are having to withdraw the offer of employment and are unable to process your application any further. If you require further information regarding this please contact an Occupational Health Advisor."
She suggested that if he was still interested in the post after three months he was to contact the acting community service manager who would discuss a further referral to Occupational Health. Mr Paul was offered the handyman's position and took that up, but he expressed his dissatisfaction with the withdrawal of the CSS offer. At paragraph 16 the Tribunal found:
16 "Mr Paul had contacted Mrs Bader after the offer of employment was withdrawn. He had told her that his consultant psychiatrist fully supported him working, that his new doctor did not know him well as he had hardly seen him, and that he had been accepted to do supply teaching. He asked her if he could provide further evidence, but she told him that the decision was a management decision and referred him back to the Personnel Department."
It is clear from paragraph 20 that Mr Paul's evidence to the Tribunal was also that his GP did not know him well and had only seen him a few times.
"As you are aware the offer of employment was subject to a satisfactory medical report from Occupational Health who assess all pre employment medical questionnaires. The OH Adviser gathered further information from your local GP and the conclusion was drawn that at present you were 'unfit' for the position of Community Service Supervisor. This decision was based on your pre employment medical questionnaire and the report from your GP.
OH wanted to ensure that your return to employment after a long period of time of being unable to work was phased and that at present the role of CSS would not be appropriate. However, if you are still interested in this area of work in three months time, and a suitable vacancy is available, please contact the CS department and a further review of your health can be carried out by OH.
With regards to your contact with Occupational Health, I would like to apologise for the way you felt you had been dismissed and not communicated to appropriately."
19 "Miss Banfield had applied for the position of Community Service Supervisor at the same time as Mr Paul and had been accepted. She gave evidence that she had been gradually inducted into the role, had shadowed another supervisor on five or six days, had been asked if she felt that she was capable of taking her own group before being allocated such a group, and had been advised that she could use the mobile phone provided if she encountered any problems with her group. She also testified that the known trouble-makers or offenders with previous convictions are placed with the most experienced supervisors."
The Tribunal's Decision
21 "The failure by the Respondent to allow the Applicant to take up the post of Community Service Supervisor, which had been offered to him, because of his disability clearly falls within section 5(1)(a) since it was the Applicant's mental impairment which prevented him from being allowed to take up the post, and the Tribunal is not required to do any more than make that finding in order for the discrimination to have occurred (Clark v Novacold Ltd  IRLR 318 CA). As regards section 5(2) of the Act, the arrangements for deciding to whom employment shall be offered do place the Applicant, as a disabled person, at a substantial disadvantage in comparison with persons who are not disabled, by having a requirement that all posts will be offered subject to occupational health clearance.
22 The only question for us to decide therefore is whether the Respondent can show to the Tribunal that the withdrawal of the offer of employment was justified since we cannot envisage any arrangements which could be made to obviate the disadvantage to the Applicant in having that requirement other than to abolish it altogether.
23 By section 5 (3) and (4), justification can be shown if the reason for the treatment or the failure to make adjustments is both material to the circumstances of the particular case and substantial."
No other provisions of the Act are referred to and nowhere in the Reasons is there any reference to the Code of Practice issued by the Secretary of State for Education and Employment pursuant to section 53 (1) (a) of the Act, which came into force in December 1996. It is clear that the Tribunal considered justification to be the only issue they had to determine in this case.
26 "It is clear that there were in fact a number of steps which Mrs Bader could have taken, any of which might have altered her view about the Applicant's fitness for the post. Firstly, she could have examined Mr Paul herself. It is not her practice to examine applicants because of the volume of referrals being dealt with by the Occupational Health Department of Kent County Council. Secondly, she could have considered obtaining a report from the psychiatrist, Dr. Amin. Thirdly, she could have spoken to Mr Paul's general practitioner or to the psychiatrist with a view to obtaining further information. Finally, she could have allowed Mr Paul to provide her with further information as he had requested."
At paragraph 27 they also referred to a report from Dr. Amin, the treating consultant psychiatrist, dated May 2002 which was before the Tribunal and which included the following statement: "Although he presents with some motor and verbal ticks he appears to be in full remission with no evidence of depressive symptoms." However, they went on to direct themselves that:
27 "In considering the materiality and substantiality of the Respondent's reason for withdrawing the offer of employment as a Community Service Supervisor to the Applicant, however, we must respect the Respondents' opinion if it is not unreasonable and if the reason given is material and substantial."
They had regard to the case of Post Office v Jones  ICR 805 and in particular to the following passage in the judgment of the Court of Appeal:
"A Tribunal is not permitted to make up its mind on justification on the basis of its own appraisal of the medical evidence and to conclude that the reason is not material or substantial because the medical opinion, on the basis of which the employer's decision was made, is thought to be inferior to a different medical opinion expressed to the Tribunal."
29 "Mrs Bader is not a doctor, but she has been working in the occupational health field for 15 years and she based her opinion about the Applicant's suitability for the post of Community Service Supervisor upon the report from the Applicant's own doctor and the fact that the Applicant had not been in paid employment for a number of years.
30 In considering the reasonableness of Mrs Bader's opinion, we have borne in mind that she was ready to declare the Applicant fit to carry out the role of handyman and that she invited the Applicant to reapply for the position of Community Service Supervisor in three months time, giving an indication that clearance would be given if all had gone well in that three-month period. That approach was not unreasonable in the circumstances.
31 We do have some misgivings about the Respondent's reliance upon Mrs Bader's opinion, having regard to Mrs Bader's failure to see the Applicant, to consult further with his general practitioner or with his psychiatric consultant, or to allow him to present further information to her. We understand however that the provision of occupational health services to Kent County Council and to other organisations may well mean that the taking of steps such as these would not have been practicable. It is the Respondent's actions in accepting the occupational health report which we have to look at in deciding whether the Respondent has proved justification. We cannot find that the Respondent was unreasonable not to demand that further health checks were made by the Occupational Health Department of Kent County Council. The report which had been obtained from the Applicant's doctor did identify the possibility of a person with a chronic depressive illness being unable to cope with the demands of a stressful, pressured job working with aggressive confrontational individuals. Those factors were material to the circumstances of the particular case and substantial. In addition, we do not consider that any other prognosis could have excluded that possibility in the light of the Applicant's medical history.
32 Had the Respondent closed the door on any possibility that the Applicant could ever do the work of a Community Service Supervisor, we might have concluded that the Respondent had not discharged the onus of showing justification. That was not the case.
33 For these reasons, we find that the Respondent was justified in withdrawing the offer of employment as a Community Service Supervisor made to the Applicant conditionally upon his obtaining occupational health clearance, with an added proviso that were he able to show the Respondent that he was able to carry out the role of handyman for a three-month period, they would then reconsider the matter if he so wished and if there were a vacancy."
5 "Meaning of 'Discrimination'
(1) For the purpose of this Part, an employer 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, an employer also discriminates against a disabled person if -
(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.
(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.
(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty.
6 Duty of Employer to make Adjustments
(1) Where -
(a) any arrangements made by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer
place 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 arrangements or feature having that effect.
(2) Subsection (1) (a) applies only in relation to-
(a) arrangements for determining to whom employment should be offered;
(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.
(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1)-
(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 working hours;
(e) assigning him to a different place of work;
(f) allowing him to be absent during working hours for rehabilitation, assessment or treatment;
(g) giving him, or arranging for him to be given, training;
(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.
(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to-
(a) the extent to which taking the step would prevent the effect in question;
(b) the extent to which it is practicable for the employer to take the step;
(c) the financial and other costs which would be incurred by the employer in taking the step
(d) and the extent to which taking it would disrupt any of his activities;
(e) the extent of the employer's financial or other resources;
(f) the availability to the employer of financial or other assistance with respect to taking the step.
This subsection is subject to any provision of regulations made under subsection (8).
(5) In this section, 'the disabled person concerned' means -
(a) in the case of arrangements 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 applicant for the employment concerned; or
(ii) an employee of the employer concerned."
(6) "If any provision of a Code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question."
In Ridout v T.C. Group  IRLR 628 this Appeal Tribunal at paragraph 28 stressed the importance of Tribunals consulting the Code of Practice. Whilst that case concerned section 6 (6) and whether the employer knew or ought to have known of the applicant's disability the remarks were of general application and we endorse them. The Code provides much practical guidance to help employers in eliminating discrimination and is, where relevant, of considerable assistance to Tribunals interpreting the Act and considering an employer's acts or omissions.
25 "Upon a consideration of the wording of section 5 (3) in context, I conclude that the employment tribunal are confined to considering whether the reason given for the less favourable treatment can properly be described as both material to the circumstances of the particular case and substantial. The less favourable treatment in the present case is the limit upon the hours of driving. The reason given for it is the risk arising from longer periods of driving. The employer obtained what are admitted to be suitably qualified and expert medical opinions. Upon the basis of those opinions the employer decided that the risk was such as to require the less favourable treatment. In order to rely on section 5 (3) it is not enough for the employer to assert that his conduct was reasonable in a general way; he has to establish that the reason given satisfies the statutory criteria. The employer asserted in this case that the risk arising from the presence of diabetes is material to the circumstances of the particular case and is substantial. Where a properly conducted risk assessment provides a reason which is on its face both material and substantial, and is not irrational, the tribunal cannot substitute its own appraisal. The employment tribunal must consider whether the reason meets the statutory criteria; it does not have the more general power to make its own appraisal of the medical evidence and conclude that the evidence from admittedly competent medical witnesses was incorrect or make its own risk assessment.
26 The present problem will typically arise when a risk assessment is involved. I am not doubting that the employment tribunal is permitted to investigate facts, for example as to the time-keeping record of the disabled person or as to his rate of productivity, matters which would arise upon some of the illustrations given in the Code of Practice. Consideration of the statutory criteria may also involve an assessment of the employer's decision to the extent of considering whether there was evidence on the basis of which a decision could properly be taken. Thus if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence, or was an irrational decision as being beyond the range of responses open to a reasonable decision maker, a test approved by Sir Thomas Bingham MR in a different context in R v Ministry of Defence, Ex p Smith  ICR 740, 777-778, the employment tribunal could hold the reason insufficient and the treatment unjustified."
At page 816 Kay LJ observed at paragraph 32:
32 "In a case such as the present one where evidence, medical or otherwise, which was not available to the employer is put before the tribunal, provided the employer has taken into account all the evidence reasonably available to it, including if medical issues are raised, sufficiently well-qualified expert medical evidence, then the fact that other evidence is available by the time of the hearing cannot render the treatment unjustified."
The Parties' Submissions
(i) "For a reason which relates to Mr Paul's disability, did the Respondents treat him less favourably than they treated or would have treated others to whom that reason did or would not apply?
(ii) Were the Respondents under a section 6 duty in relation to Mr Paul, that is:
(a) Did arrangements made by the Respondents for offering employment place Mr Paul at a substantial disadvantage in comparison with non-disabled persons?
(b) If so, did the Respondent's fail to take such steps as it was reasonable for them to have to take in all the circumstances in order to prevent the arrangements having that effect?"
If the Tribunal answered this question in the negative there would be no need to consider justification and the section 5 (2) claim has failed. In answering this question however the Tribunal should have regard to the provisions of section 6 (3) and (4).
(iii) "If the Respondents did fail to take a step or steps which it was reasonable for them to have to take, have they shown that their failure is justified, that is, shown that the reason for their failure to comply is material to the circumstances of the case and substantial?"
If so the section 5 (2) claim fails. If not the section 5 (2) claim succeeds and the Tribunal must then return to section 5 (1). If the Respondents have not shown that their failure to make reasonable adjustments was justified then their less favourable treatment of Mr Paul cannot be justified under section 5 (1) (b) unless the treatment would have been justified even after those adjustments had been made. Thus the Tribunal should ask:
(iv) "Would the Respondents' treatment of Mr Paul have been justified even if they had complied with their duty to make reasonable adjustments?"
If so the section 5 (1) claim fails. If they answer that question in the negative however the claim succeeds.
(i) by obtaining appropriate specialist advice from Mr Paul's treating consultant on the issue of his fitness for the CSS post. On this issue they may have considered it relevant to look at the Code of Practice and in particular paragraph 5.24 which deals with how employers should take account of medical evidence and which states amongst other things:
"Advice from an Occupational Health expert simply that an employee was 'unfit for work' would not mean that the employer's duty to make a reasonable adjustment was waived".
Other paragraphs of the Code which may have been of particular relevance in this case are those at 3.1, 3.2, 3.3, 4.16, 5.2 and 6.3. Clearly, the resources available to the Respondents as an organisation would be relevant to these considerations;
(ii) by speaking further to Mr Paul following receipt of the GP's report and if appropriate referring the matter back to Mrs Bader;
(iii) by taking any steps in relation to adjusting the job they had already offered Mr Paul, for example increasing his period of induction and/or the training or supervisory periods.
Having undertaken such adjustments as were considered reasonable the Respondents could then have referred the matter back to Mrs Bader to enable her to make a final assessment as to Mr Paul's fitness, having regard to these adjustments. The Tribunal were clearly troubled by some aspects of the evidence in this case (see paragraphs 26 and 31) and yet they never considered these matters in the context of the section 6 duty and reasonable adjustments. We consider that they should have done.