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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Heatherwood & Wrexham Park Hospitals Trust v. Beer [2006] UKEAT 0087_06_1406 (14 June 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0087_06_1406.html Cite as: [2006] UKEAT 87_6_1406, [2006] UKEAT 0087_06_1406 |
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At the Tribunal | |
On 4 May 2006 | |
Before
THE HONOURABLE MR JUSTICE SILBER
MR B R GIBBS
MRS J M MATTHIAS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR GEORGE THOMAS (Of Counsel) Instructed by: Messrs Radcliffes, Le Brasseur 5 Little College Street London SW1 |
For the Respondent | MR DAVID READE (Of Counsel) Instructed by: Messrs BP Collins 32-38 Station Road Gerrards Cross Bucks SL9 8EL |
Claim for disability discrimination-
Did the effect of the claimant's impairment have "a long-term effect"? Did the Employment Tribunal consider this issue and the question of whether proper adjustments were made properly? The answer to both questions was in the affirmative.
Did the Employment Tribunal err in concluding (a) that the Whitley Council conditions did not apply and (b) that the claimant's wages while suspended continued to be calculated in accordance with various e-mails after she was taken ill while still suspended? The answers to both questions are in the negative.
THE HONOURABLE MR JUSTICE SILBER
I. Introduction
II. Overview
III. Was the claimant a disabled person within the meaning of section 1(1) of the Disability Discrimination Act 1995 ("the Act")?
" ..a person has a disability for the purposes of the Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities"
"(1) The effect of an impairment is a long-term effect if
(a) it has lasted for at least 12 months;
(b) the period for which it lasts is likely to be at least 12 months; or
(c) it is likely to last for the rest of the life of the person affected.
(2) Where an impairment ceases to have the substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur"
"(6) 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 claimant or potential claimant, that the disabled person concerned is, or may be, an claimant for 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)"
IV. Adjustments
17. The Trust makes many complaints about the Employment Tribunal's treatment of adjustments. The relevant provisions are to be found in sections 5 and 6 of the Act. These provisions were altered with effect from 1 October 2004 and as the matters of which complaints were made straddle this date, it is necessary to set out the provisions in force both before and after that date. The Employment Tribunal considered the case in this way by applying both the pre-October 2004 and the post-October 2004 provision and we will also do so as counsel both agree that this is appropriate.
"(I) 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 (I) (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 (I)-(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 (I), regard shall be had, in particular, to- (a) the extent to which 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 and the extent to which it would disrupt any of his activities; (d) the extent of the employer's financial and other resources; (e) the availability to the employer of financial or other assistance with respect to taking the step".
"there is no doubt that the test required by section 6 (1) is an objective test."
20. After 1 October 2004, section 6 was replaced by section 4A which provided insofar as it has not previously been referred to that:
"(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 an 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 claimant for that employment;
(b) In any other case, a disabled person who is-
(i) An claimant for the employment concerned, or
(ii) An employee of the employer concerned…"
21. Before 1 October 2004, the operative provision was section 5, which is headed "Meaning of Discrimination", and which provides that:
"(1) For the purposes of this part, an employer discriminates against the 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 for 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 (I) treatment is justified if, but only if, the reason for it is both material to the circumstances for 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 this case and substantial."(5) If, in a case falling within subsection (I), 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".
"(1) For the purposes of this part, a person discriminates against a disabled person if-
(a) For a reason which relates to the disabled persons 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.
(3) Treatment is justified for the purposes of subsection (1) (b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
(4) But treatment of a disabled person cannot be justified under subsection (3) if it accounts to direct discrimination falling within subsection (5).
(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
(6) If, in a case falling within subsection (1), a person is under duty to make reasonable adjustments in relation to a disabled person but fails 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 that duty".
"82. The Tribunal is entirely satisfied that the Trust was under a Section 6 duty to make adjustments, the claimant being a disabled person and someone placed at a substantial disadvantage in comparison with persons who were not disabled in the absence of adjustments. Alternatively the Trust was under a Section 4A [sic] to make reasonable adjustments. The Trust clearly identified and confirmed by the letter of 26 November 2003 the reasonable adjustments required, which were:
[1] To establish the claimant's skills which has to be undertaken by occupational therapy.
[2]To modify sick pay entitlements to extend sick pay whilst she was being placed.
[3] Human Resources to supply details of suitable roles to occupational health.
[4] Occupational Health to consider whether those roles were suitable.
[5]To aim to achieve a phased return to an identified and suitable role.
Quite simply none of that happened. Why? It was not implemented due to failings on the part of the respondent's HR department to monitor the situation and implement the adjustments required. The process was not properly managed. It appears that was in part because Maggie Gibbs considered that she was dealing with a redeployment following a disciplinary sanction and not compliance with the requirements of the DDA".
25.. Mr Thomas contends that the Employment Tribunal misdirected themselves by not saying what test it had intended to apply or had applied on the question of adjustments but in paragraph 85 of its Reasons, the Employment Tribunal concluded that the adjustments referred to in paragraph 82 and which we cited in paragraph 23 were:
"reasonable and had manifestly been identified as such by the [Trust]. In failing to implement those adjustments the [Trust] discriminated against the [claimant]".
"it was not clearly spelt out to the [claimant] what role she was to do. there was specially defined role…no checks were made with occupational health to assess whether any particular role was appropriate"
VI. Incorporation of Whitley Council's Conditions.
"5. The respondent argued that the "Whitley Councils for the Health Service (Britain) Terms and Conditions of Service for Ancillary Staff" dated June 1992 contained the claimant's terms and conditions of employment. However, the respondents were not able to produce to the Tribunal at the Hearing any evidence that those had ever been brought to the attention of the claimant. In her evidence to the Tribunal Mrs Maggie Gibbs accepted that there was no reference in either the Statement of Particulars or the Terms and Conditions in the Employee Handbook to the Whitley terms and conditions. The respondent argued that on a contractual analysis the reference in the documents …to "conditions" was sufficient to direct the claimant to the Whitley terms and to incorporate them. Had the respondent intended them to apply it could easily have referred expressly to them but did not. There is no reference to them in the Terms and Conditions…. In the absence of any evidence that the Whitley terms having been brought specifically to the claimant's attention before or at the time she signed the Statement of Acceptance, or at any time the Tribunal do not find that they were incorporated into her contract of employment and accordingly she was not bound by them. The respondent further argued that their incorporation could be implied as a term by virtue of custom and practice on the basis that all its ancillary staff worked to them. However that argument fails because on the evidence of Mrs Gibbs they were not automatically applied in their entirety to all ancillary staff. She accepted that there were variations from the Whitley terms for other staff and that those variations were the subject of local collective agreements".
"Conditions of Employment: All other conditions of employment are laid down in the Trust Conditions of Service. A complete set of conditions are available for inspection in the Personnel Department. These conditions may be varied from time to time as notified by the Trust"
VII. The Remedies Issue.
54. The Employment Tribunal dealt with it in this way in the reasons for the remedies decision when it explained that:
"10. The Tribunal have considered carefully the circumstances surrounding the dispute and in particular have considered the exchange of emails that appears on page 347 of the trial bundle. The claimant quite clearly raised on Friday 7 February 2003 a query in relation to her pay during her suspension. She stated,
"Although the letter of 9th states that I have received full pay, I appear to be receiving only basic. At the meeting on 9 December, I was assured by Maggie Gibbs that the fact I normally work every weekend would be taken into account. This does not appear to be happening".
The response by email later that same day unequivocally confirms,
"You should be paid "average" pay and not "basic" pay. I will speak to Annie in payroll and get this situation rectified. Apologies for any inconvenience this has caused you"
11. Applying the definition of wages contained in Section 27(1) (a) ERA 1996 wages are defined as "Any fee, bonus, commission, holiday pay or other emolument referable to employment, whether payable under his contract or otherwise. Although there is no specific reference in the contract to the basis on which pay was to be calculated the tribunal are satisfied that the statement in the respondent's email of 7 February 2003 was a clear commitment to pay average pay and therefore falls within the scope of "otherwise" in Section 27(1) (a). Accordingly we find that the claimant is entitled to be paid at the average rate".
VIII. Conclusions.