![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Jennings v Barts And The London NHS Trust (Disability Discrimination : Disability related discrimination) [2012] UKEAT 0056_12_0502 (5 February 2013) URL: https://www.bailii.org/uk/cases/UKEAT/2013/0056_12_0502.html Cite as: [2012] UKEAT 0056_12_0502, [2012] UKEAT 56_12_502 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At the Tribunal
On 15 May 2012 & 3 August 2012
Judgment handed down on 5 February 2013
Before
MR I EZEKIEL
MR A HARRIS
MR
F JENNINGS
APPELLANT
BARTS AND THE LONDON NHS TRUST RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
(of Counsel) Instructed by: TMP Solicitors LLP 29th Floor One Canada Square London E14 5DY
|
|
(of Counsel) Instructed by: Capsticks Solicitors LLP 1 St George’s Road Wimbledon London SW19 4DR |
SUMMARY
DISABILITY DISCRIMINATION – Disability related discrimination
If a wrong label is attached to a mental impairment a later re-labelling of that condition is not diagnosing a mental impairment for the first time using the benefit of hindsight, it is giving the same mental impairment a different name and, given that whether or not an employer knows or should have known there is a disability is essentially a question of fact (see Wilcox and Birmingham CAB Services Ltd [2011] Eq LR 810), the Employment Tribunal was entitled to find that the Cross Appellant employer had actual or constructive knowledge of the disability.
Although the Employment Tribunal overstated the effect of the judgment in Project Management Institute v Latif [2007] IRLR 579 (contrary to what the Employment Tribunal tended to suggest, it does not place any evidential burden on a Claimant to do more than identify alleged reasonable adjustments) and whilst it is always better for an Employment Tribunal to deal specifically with each suggested adjustment that has been identified by a Claimant, particularly where a CMD has confirmed that those matters are in issue, the Employment Tribunal’s judgment addressed the issue of reasonable adjustments to a sufficient extent and the Appeal must be dismissed.
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal had reached a tenable conclusion on the factual material and the judgment was not perverse.
HIS HONOUR JUDGE HAND QC
Introduction
1.
This is an appeal by the Claimant, Mr
Jennings,
who was the Claimant below and who we will call the Claimant in this
judgment, from the judgment of an Employment Tribunal comprising employment
Judge Prichard, Mrs McPake and Ms J Owen sitting at East London Hearing Centre
on 1 to 3 June and 6 and 7 June 2011. The reserved judgment, which was sent to
the parties on 4 October 2011, dismissed claims of unfair dismissal and disability
discrimination. There is a cross appeal by the Respondent employer, who we
will call the Respondent, against the finding by the Employment Tribunal that
the Respondent had, as the Employment Tribunal described it, “imputed
knowledge” that the Claimant was disabled, as required by section 4A(3) of the Disability
Discrimination Act 1995 (“DDA”).
The factual background
“There does not seem to be any connection between it and the February … incident…”
“The good news…
Frank is sick with his back again. I think I have broken him by asking him to work on the SD [the service desk].”
So far as the Claimant was concerned this simply confirmed his belief that Mr Vernall was (see paragraph 57 of the judgment):-
“… motivated by a desire to dismiss him at all costs and a desire to ‘break him’ by deliberately getting him to do things which would cause him the sort of injury that would mean he could no longer work for the Respondent.”
“The Tribunal accepts Mr Vernall’s explanation. The phrase ‘the good news’ was a favourite phrase of the claimant and a regular refrain when he telephoned in to give what was invariably bad news, that he had to take a day off sick. We accept Mr Vernall’s explanation that it had become a standing joke between him and Mr Wilkinson. The email was sent to Mr Andrew Wilkinson and the claimant himself. Mr Vernall is quite clear that it was not sent to the claimant in error. He was not proud of the email in retrospect. The Tribunal therefore accept there is nothing underhand about this. The phrasing is odd because the phrase: ‘I think I have broken him by asking him to work on the SD’ which refers to the claimant in the third person is an odd thing to say when the person referred to is not merely a CC but actually an addressee. Circumstantially we cannot accept the interpretation that the claimant puts on it that Mr Vernall was minded to sabotage his recovery and make him ill. All his efforts were totally in the other direction. The Tribunal considers Mr Vernall would have given anything to see the improvement in the claimant’s attendance. If he had wanted to bring about the claimant’s demise he could have done so much, much earlier. Also, the history shows that the claimant appeared to need no extra help in developing symptoms of illness, and taking time off for such illness.”
“From my assessment it is clear that Frank is still suffering from some residual symptoms of post-trauma relating to the accident he had in February 2006. He is also suffering from what I would term as generalised or free floating and specific anxiety symptoms which appear to result in a cluster of symptoms which include panic attacks. In order to get further clarification I have today written to his psychologist for a further updated report, and would hope to be in a better position to advise on fitness to you on receipt of this report.
It is my opinion at present that he currently remains unfit to return to the workplace however. I have today discussed with him aiming for a return to work within the next four to six weeks. In relation to his return I would also recommend that he re-commences work with a gradual return to work programme over a period of three weeks. I would recommend the following step-up programme:
· Week 1 and 2 – 50% of his hours
· Week 3 – 75% of his hours
· Week 4 – returning to normal hours.”
“… some ‘perceived’ work-related stress. I have today discussed a Stress/Pressure at work Questionnaire and have emailed a copy of this to him to complete. This questionnaire is based on the Health and Safety Executive’s (HSE) standards for managing stress in the workplace. Frank needs to articulate what he perceives as the stressors in his work and then needs to meet with yourself to discuss what (if any) reasonable adjustments can be made. I have attached a copy of this questionnaire and if you want to discuss this further please do not hesitate to call me to discuss.”
“To be sure that one is recovered when one has a broken leg or flu is quite easy. However, my condition is variable depending on many indeterminable factors which are just impossible to predict reliably how they may affect me or how I will be able to deal with their influences.”
He went on to express disappointment that, as he put it, he was not able to have “tested the water” by returning to work to see how he could cope.
“This argument has been a major issue for the tribunal at this Hearing. It arises naturally when someone presents with multiple diagnoses, possibly alternative diagnoses of the same condition and sometimes clearly not unrelated diagnoses.”
This is somewhat cryptic and the double negative in the last part of the second sentence does not greatly assist comprehension but we would take it to amount to an acceptance by the Employment Tribunal of the Claimant’s proposition that he suffered from a variable condition which had resulted in a variety of diagnoses, some of which were related.
“… He is progressing but the specialist still thinks it will take some weeks of treatment to help him resolve the problems and deal with his anxiety. One has to see this incident against a background of longer term personality and anxiety problems and I think that these have not been appropriately addressed in the past.”
Dr Baxendine appears, however, to have had his own views about the road traffic accident. These are recorded at paragraph 129 of the judgment at page 27 of the appeal bundle, in these terms:
“Given that he never mentioned it as an issue when I saw him in 2007 regarding his circulatory problem I am not quite clear why it should now have flared up into such a big issue and be causing him so many problems with regard to attending work.”
He took the view that the Claimant should be ready for a phased return to work some time in March.
“The panel’s decision was therefore to terminate employment as from 23 January. The claimant was given three months’ notice and he was paid in lieu. This seems to us to mean that he was dismissed with effect from 23rd January 2008 but was given a payment in lieu of three months’ notice.”
24. An appeal was heard on 21 February 2008 and the dismissal decision was upheld.
The Employment Tribunal’s analysis
“… Strict adherence at each of four phases was, to the Tribunal’s mind, unnecessary and unwarranted.”
As we understand it, the Employment Tribunal meant by that it had not been unreasonable for the Respondent not to comply with the time limits laid down in its own procedures.
“The claimant was dismissed not for short-term absences but for long-term absence. The claimant had been absent for sixteen weeks. In this case we have to bear in mind the case of Westminster City Council v Cabaj. Not every departure from an employer’s own written policy will mandate a finding of unfair dismissal. That is an unwarranted gloss upon section 98(4) of the Employment Rights Act. The policies are there for broad guidance and to promote consistency and predictability.”
29. A little later in the same paragraph the following appears:-
“We have no doubt overall, as a matter of substance and procedure, the dismissal, as and when it occurred, was amply within the range of reasonable responses. An over-technical interpretation of the policy and the way the Respondent worked through it in this case is absolutely to be avoided in this and all cases. Looked at overall, this was not a borderline case. The claimant’s record was severely poor. The management problems he caused and the amount of management time he took were disproportionate.”
“The first point of criticism is the way in which the whole process entered phase 1 as already remarked. At a meeting convened by letter of 2 October and taking place on 10 October, phase 1 of the long-term absent policy was dealt with, although there was no mention in the letter of 2 October of any long-term absence being dealt with. A meeting was solely and specifically convened to deal with short-term absence which means that something was taken without notice to the claimant. This cannot be a reasonable procedure and is a basic breach of natural justice. However, the question is, in terms of a four-phase procedure, does that flaw render everything that happened thereafter unreasonable? In our view it did not. The claimant had ample and fair opportunity to catch up with the process, but ultimately failed to make any case.”
So those last three sentences amount to a conclusion that procedural shortcomings did not vitiate the decision to dismiss.
“Was Mr Vernall unreasonable in terms of the policy and in terms of section 98(4) in insisting if he was to come back that he came back on a planned phased return or else be subjected to disciplinary measures for short-term absence?”
34. The Employment Tribunal says:-
“Read superficially that sounds quite upbeat and optimistic and one might think that the employer will be unreasonable in deciding to dismiss at the meeting when this was the last report. In a telling piece of evidence it appears that Ms Chopra, who seems to have had the claimant’s best interests at heart again had telephoned Dr Baxendine and asked him to clarify his report. Dr Baxendine then wrote a letter stating:
‘In the report I said I would expect Mr Jennings
to be
ready for a phased return to work in March 2008. This was of course subject to
his continued good process with his psychotherapist and this is what I propose
to review at my next appointment with him on the 4th March 2008. As
return to work was subject to his progress with therapy I cannot of course
guarantee that he will be fit to return then… From a point of view of future
prognosis I would consider Mr
Jennings remains with underlying problems and
would certainly not be able to guarantee that he will give regular and effective
performance in the future. Indeed on the balance of his past sickness record,
I would have to anticipate that he will have further sickness absence in the
future.’ ”
“167. It is not clear whether that letter was received before or after the dismissal outcome confirmation letter was sent on 24 January 2008. We had to remind ourselves that the actual decision date was taken on 23 January 2008, which was the effective date of termination and on that date it was announced to the claimant orally at the meeting. It rather looked as if HR was seeking justification after the event for a decision that was being made the day before. That of course could potentially render the final dismissal decision unfair. So what was the evidence available on the 23 January? Was the claimant stating that the management should look towards a return to work in March just as Dr Baxendine had predicted? No, quite the contrary. The claimant himself was introducing the note of pessimism.
168. It seems that the occupational health doctor, Dr Baxendine, would have written this first report in the way he did. Occupational health doctors are frequently positive and optimistic. It can be particularly appropriate if someone is suffering from stress or depression. He knows that if he says there is no return to work date and no prospect of it that he will virtually be rendering dismissal inevitable and he did not want to do that for the claimant. For instance when a doctor issues a sick certificate for four weeks that does not mean that the person in question will be fit to return in four weeks. The four week date is a review date. So when he is talking about return to work in March he is really saying there will be a review in March. He could not say more than that, particularly when there is some ongoing therapy that may or may not produce some improvement.
169. In the Tribunal’s view management was not unreasonable in not taking an optimistic view from the report. Carefully read, as the important prognosis passage must have been, it does not of itself provide an issue of return to work date as Mr Vernall noted in his management case to the meeting chaired by Doug Howe and Patricia Tracy. Such optimism there might have been [sic] was completely destroyed by the Claimant’s stance. He said as follows:
FJ: “I’m getting there and would like some more patience and forbearance so I can get back to full time.
DH: When do you think that could be?
FJ: Dr Baxendine says March, but I think it’s more likely to be April. My psychiatrist says I am halfway through. Dr Baxendale ways [sic] well I want to tell you something that I don’t want to go outside these walls etc.”
And then he says:
“ … I don’t want to return to work too early because if I burst into tears it’s a rough environment and I don’t think I can cope and I’ll never hear the end of it.”
170. In our view management was acting well within the reasonable bounds by forming a considered view that there was no return to work date as at 23 January and that it was the final phase of long term absence process in which the claimant had overall been invited to make suggestions, had made none, and had not filled out the stress questionnaire and had not suggested redeployment jobs. Given that the claimant had engaged promptly and articulately in correspondence stating his point of view, it appears to the Tribunal that if the claimant had turned his mind to the stress questionnaire he could easily have filled it in.
171. The claimant wanted a unique procedure tailored to his own particular disorder. He required carte blanche and a total exemption from the short-term sickness policy. If that had been allowed we can easily see what the Respondent apprehended happening, i.e. operational problems and resentment from other team members which already existed anyway. Furthermore, the Respondent was entitled to take into account the past history and to conclude that the past was the best predictor of the future, for instance the stop-start return after the so-called ‘angina’ absence through March to July 2007 and the subsequent change of diagnosis. In all those circumstances the Tribunal considers that the claimant was fairly dismissed.”
Disability discrimination
37. Direct discrimination was disposed of by the Tribunal at paragraph 172 in these terms:-
“We turn now to the question of disability discrimination. The complaints of disability discrimination consisted of complaints of failures to make reasonable adjustments. The complaint of disability related discrimination is not legally viable since the judgment in London Borough of Lewisham v Malcolm. There are two major determinations the Tribunal has to make. First, was the Respondent aware that, by reason of disability, the claimant was at a substantial disadvantage because of a provision criterion or practice, in comparison with non-disabled individuals?”
The second “major determination” is not articulated.
“It is quite clear having reviewed the evidence and the focus of the claimant’s argument that the PCP in question was the short-term sickness policy and the fact that it did not permit unplanned intermittent absences without sanctions leading to dismissal.”
The paragraph goes on to discuss the characteristics of a short-term absence policy and ends by emphasising the importance of discretion and the individual nature of particular cases.
39. The Tribunal then goes on to deal with redeployment, at paragraph 174, in these terms:-
“The claimant only really discussed the question of redeployment in these Tribunal proceedings. The Tribunal was not impressed with his confident assumption that he could simply transfer to a relatively unskilled job like the post room. With respect to that view, lesser skilled jobs nonetheless have their skills and need experience. It would be unsuitable on a temporary basis and it would be a fantasy to think that such a job would be free from stress. The claimant discussed this only in general outline. The minutes of 23 January, phase 4 meeting, recording the claimant as saying:
‘I can see that it is not possible to modify my job but would like to be put in another environment, maybe the technical team or software development. But I do understand there are no jobs available. No posts are available as you either need a degree or it’s a road sweeper job there is nothing else suitable.’”
“This is a finely balanced question. It must have been obvious to the Respondent for some time that the claimant’s behaviour was odd. The evidence in this case is a testament to that such that with hindsight Dr Baxendine is able to say that the diagnosis given for the report for these proceedings by Melinda Reece is a very credible one, makes sense of behaviour he had observed from the claimant [sic]. He had himself been witness to the claimant breaking down in tears shortly after the angiogram had proved normal and he was given the all clear for coronary heart disease on 29 April 2007.”
42. At paragraph 178 of the judgment, the Employment Tribunal reached this conclusion:-
“The Tribunal on balance concluded that the employer did have imputed knowledge of what has turned out ultimately to be the diagnosis. It is noted and indeed counsel noted with a little surprise that her instructing solicitor admitted personality disorder and major depression as the disabilities for the purposes of the 1995 Act and that the claimant had suffered from both these mental impairments at all material times. The Tribunal cannot but find accordingly, and in any event even if we had found that the employer had no imputed knowledge, it would only be right as the matter is finely balanced to deal with the other aspects of the claim of complaint of failure to make reasonable adjustments in the workplace.”
This is not easy to follow. What is it that the Employment Tribunal “cannot but find accordingly”? It can only be that the Claimant had suffered longstanding mental impairments, which amounted to a disability for the purposes of the DDA; this was admitted by the Respondent and the Employment Tribunal were bound to accept it. Perhaps the phrase “cannot but find accordingly” expresses reluctance to reach that conclusion? On the other hand the syntax of the paragraph suggests that it is “imputed knowledge”, which the Employment Tribunal “cannot but find accordingly” and that presents a problem because the admission does not lead necessarily to the conclusion that there is “imputed knowledge”.
“… The claimant seemed to be asking for nothing less than a unique absence policy which was neither short-term nor long-term but peculiar to him. It is possible in principle to comply with a duty to make reasonable adjustments by modifying existing [sic]. That is the sort of adjustment that the DDA envisages but, because the claimant had not completed stress questionnaire or engaged in redeployment or in any meaningful discussion about return to work, or planned phased return (and we emphasise planned), that a case conference was not possible. In the Tribunal’s view it would not be reasonable for the Respondent to make modifications when the claimant himself simply remained unfit for work, and away from work. More importantly he did not engage in meaningful constructive practical steps to facilitate any future return to the workplace. It would not be reasonable for the Respondent to second-guess what would be of benefit to the claimant when he was not participating in the process either with them or with occupational health, in terms of what he needed.”
“However, the case of Project Management Institute v Latif [2007] IRLR 579, the EAT states that there is a duty on a claimant employee to specify the reasonable adjustments in the Tribunal proceedings, as opposed to the workplace. The employee needs to raise at least a prima facie case as to show the Respondent has failed to comply with some identified reasonable adjustment. In this case the claimant has not.”
“For much the same reasons as we find it is a substantially fair dismissal, we find that it would not be reasonable to have expected the Respondent in the context of this particularly busy IT service to follow the claimant’s suggestions as to the most appropriate absence policy for his particular case. They were not unreasonable in finding no other adjustments which could have made any difference and resulted in the claimant’s return to work. It would have produced clear operational problems to the extent the situation would have continued to be unworkable for any more than a short finite amount of time, especially as the department was moving into further period of intense activity surrounding the implementation of CRS [sic]. There was existing resentment which the Tribunal found easy to believe and accept, given the long and bad history of attendance in this case. It could only have got worse as the workload increased.”
This adverse impact on the working environment was further emphasised by paragraph 183 where Mr Vernall’s description of the impact of the frequent and persistence absences of the Claimant on colleagues as “enormous” was said by the Employment Tribunal to be an accurate and not exaggerated statement.
Submissions – the cross appeal
“1(1) Where –
(a) a provision, criterion or practice supplied 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.
[….]
(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).”
The combined effect of the subsections is not to offer alternatives but two cumulative stages; constructive knowledge of the disability and constructive knowledge of the comparative disadvantageous effect must both be shown (see paragraph 37 of the judgment in Wilcox). Here, even if the Employment Tribunal could be said to have addressed constructive knowledge of the disability, it had not given any consideration at all to whether the employee ought to have known of the comparatively disadvantageous effect.
“… we must recognise that the question of what the Respondent knew or should reasonably have been expected to know is one for the factual assessment of the Tribunal.”
“139. For the purposes of a Disability Discrimination Act claim the disability in question is paranoid personality disorder and major depression as diagnosed from the treating psychologist, Melinda Rees, dated 11 October 2010. The tribunal set this down for a PHR to be heard on 17 December 2010, but by letter of 9 December 2010 the respondent’s solicitor, Capsticks, conceded that the claimant suffered from a mental impairment and personality disorder and major depression and that it was a disability for the purposes of the Act. The respondent accepts that the claimant suffered with these impairments at all relevant times. Notwithstanding this concession the respondent has contended before the tribunal for the purposes of section 4A(3) of the Disability Discrimination Act 1995, subsection:
… [the Tribunal quotes the subsection]…
[i.e. knows that the employee is at a substantial disadvantage in comparison with persons who are not disabled in respect of the provision, criteria or practice].”
140… The tribunal has been referred to the following case law:
Department of Work and Pensions v Hall [unreported] UK EAT0012/05.
This is in respect of the power of the tribunal to impute constructive knowledge to an employer of a disability [sic] under that subsection. We have also been referred to the Secretary of State for Work and Pensions v Alam [2010] ICR 665 EAT. It confirms the knowledge required for 4A(3)(b) is not just knowledge of the disability but the fact that the disability places the claimant at a specific disadvantage compared to other non-disabled employees.”
Ms Palmer submitted that is a perfectly correct self direction and that when paragraphs 173 to 175 of the judgment are considered in the light of that self-direction, it can be seen that paragraph 175 is simply drawing on the report for a definition of the diagnosis. The Employment Tribunal was not attributing knowledge to the Respondent in 2007 and 2008, by reference to what Dr Rees only articulated in 2010. What the Employment Tribunal had done was examine what the Respondent did know then, as reported by the Claimant, by the doctors/advisors in the Occupational Health Department and by Melinda Rees and concluded that the Respondent therefore reasonably ought to have known that amounted to an impairment within the statutory concept of disability and that, in terms of returning to work and staying at work, the Claimant was at a disadvantage. The subsection requires concentration on what a Respondent should have been aware of and also on the statutory definition of disability. This is all simply a question of fact and it could not be suggested the decision was perverse.
Submissions – the appeal
54. There, the issues relating to reasonable adjustments had been identified as follows:-
“(i) Sickness absence policy;
(ii) Attendance criterion;
(iii) Dismissal policy/practice; and/or
(iv) The performance, assessment and target-setting policy and/or practice.”
“(i) Reducing the claimant’s work or hours of work;
(ii) Allowing for disability-related absence;
(iii) Amending the attendance criterion and sickness absence policies of target setting;
(iv) Lowering performance targets;
(v) Removing the threat of disciplinary action for a period of time;
(vi) Facilitating a phased return to work;
(vii) Changing the department within which the claimant worked; or
(viii) Allowing for an enabling non-direct contact while on sick leave.”
This presented the Employment Tribunal with a template. To a similar effect was the list of reasonable adjustments set out at paragraph 161 of the Claimant’s witness statement (see page 52 of the supplementary appeal bundle) as follows:
“161.1 Reducing my hours of work.
161.2 Allowing my disability related absence so that I can complete my CBT treatment
161.3 Amending the attendance criterion and sickness absence policies of target setting as I could not comply with the requirement of 100% attendance
161.4 Lowering or removing (temp or firm) performance targets as this made me stressed and caused sickness absence
161.5 Removing the threat of disciplinary action for a period of time as this made me stressed in caused or prolong sickness absence
161.6 Facilitating a phased return to work from March/April 2008 as advised by Dr Baxendine
161.7 Transferring me to another Department such as Barts of the Tech Team
161.8 Offering mediation/conflict resolution to resolve the “personality clashes” between me and my managers or work colleagues”.
Ms Palmer said that all these matters had been raised orally at the hearing. This turned out to be a controversial proposition.
56. Ms Palmer submitted that the Employment Tribunal failed properly to follow the approach of the Employment Appeal Tribunal (“EAT”) as set out in paragraph 27 of its judgment in Environment Agency v Rowan [2008] ICR 218. It should have identified the “provision, criteria or practice” (“PCP”) relied on and then asked whether the disabled person was substantially disadvantaged and whether the Respondent knew or should have known that the disabled person was substantially disadvantaged. That is how the question of ‘imputed knowledge’ should have been approached. Then the Employment Tribunal would have been in a position to answer correctly the question as to whether the duty imposed on an employer under s.4A(1) of the Disability Discrimination Act had been discharged?
1. The proposal that there should be a six-week period when the intermittent absences did not trigger the short-term absence procedure.
2. An adjustment target.
3. An adjustment trigger point.
4. The postponing of further disciplinary hearings.
5. An alteration to the timetable that allowed for consideration of the awaited further medical reports.
61. This conflation is illustrated by the first sentence of paragraph 182 of the judgment:
“For much the same reasons as we find it is a substantially unfair dismissal, we find that it would not be reasonable to have expected the respondent in the context of this particular busy IT service to follow the claimant’s suggestions as to the most appropriate absence policy for his particular case. They were not unreasonable in finding no other adjustments which could have made any difference and resulted in the claimant’s return to work.”
62. Secondly, the Employment Tribunal had wrongly derived from the case of Project Management Institute v Latif [2007] IRLR 579 the proposition, which appears at paragraph 180 of the judgment (see page 40 of the appeal bundle):
“The tribunal has considered the legal principle that, in the workplace, the duty is not upon the employee but upon the employer to identify the precise reasonable adjustments that the employee needs. … However, the case of Project Management Institute v Latif 2007 IRLR 579 the EAT states that there is a duty on the claimant employee to specify the reasonable adjustments in the tribunal proceedings, as opposed to the workplace. The employee needs to raise at least a prime facie case as to how the respondent has failed to comply with some identified reasonable adjustment. In this case the claimant has not.”
“53. We agree with Ms Clement. It seems to us that by the time the case is heard before a tribunal, there must be some indication as to what adjustments it is alleged should have been made. It would be an impossible burden to place on a respondent to prove a negative; that is what would be required if a respondent had to show that there is no adjustment that could reasonably be made. Mr Epstein is right to say that the respondent is in the best position to say whether any apparently reasonable adjustment is in fact reasonable given his own particular circumstances. That is why the burden is reversed once a potentially reasonable adjustment has been identified.
54. In our opinion the paragraph in the code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made.
55. We do not suggest that in every case the claimant would have had to provide the detailed adjustment that would need to be made before the burden would shift. However, we do think that it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not.”
“We observe in passing that we very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice, or demonstrating the substantial disadvantage. These are simply questions of fact for the tribunal decide after hearing all the evidence, with the onus of proof resting throughout on the claimant. These are not issues where the employer has information or beliefs within his own knowledge which the claimant cannot be expected to prove. To talk of the burden shifting in such cases is in our view confusing and inaccurate.”
No doubt the burden is on the Claimant but that is not the same thing as saying that there is a specific burden on the Claimant to do more than raise an adjustment for consideration. Once raised for consideration the Claimant does not need to prove anything as to “how the respondent has failed to comply”. Moreover, paragraph 181 is also presents an incorrect analysis. There is no true approximation between justification on the one hand and reasonableness on the other.
66. Paragraph 17 of the judgment in Leeds Teaching Hospital NHS Trust v Foster [2011] EqLR 1075 provides an illustration of how much a Claimant needs to show:
“17. In fact, there was no need for the Tribunal to go as far as to find that there would have been a good or real prospect of Mr Foster being redeployed if he had been on the redeployment register between January and June 2008. It would have been sufficient for the Tribunal to find that there would have been just a prospect of that. That is the effect of what the Employment Appeal Tribunal (Judge McMullen QC presiding) held in Cumbria Probation Board v Collingwood (UKEAT/0079/08/JOJ) at [50]. That is not inconsistent with what the Employment Appeal Tribunal (Judge Peter Clark presiding) had previously said in Romec Ltd v Rudham (UKEAT/0069/07/DA) at [39]. The Employment Appeal Tribunal was saying that if there was a real prospect of an adjustment removing the disabled employee's disadvantage, that would be sufficient to make the adjustment a reasonable one, but the Employment Appeal Tribunal was not saying that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one. When those propositions were put to Mr Boyd, he did not disagree with them.”
69. What was lacking on the part of the Employment Tribunal was the degree of objectivity referred to by the EAT at paragraph 12 of the judgment in Royal Bank of Scotland v Ashton [2011] ICR 632 as follows:
“12. Mr Linden QC, who appears for the employer, submits that these provisions show clearly that the steps which are required of an employer are practical steps. They are intended to help the disabled person concerned to overcome the adverse effects of the relevant disabilities, at least to the greatest extent possible, so that he or she may fulfil a useful role as an employee. We accept that, as both he and Mr Morton for the claimant submit, the focus of the provisions as to adjustment requires a tribunal to have a view of the potential effect of the adjustment contended for. The approach is an objective one.”
The focus should have been on the reasonable adjustments and not on the Claimant’s behaviour.
75. Also, if there had been a finding of disability discrimination that should have affected unfair dismissal. In Fareham College Corporation v Walters [2009] IRLR 991 the EAT had made clear in the following passages that the two may be linked:
“68. The question that arises however is whether it is necessary for the matter to be remitted in this case. The answer to that point in the present appeal lies, in our view, in the tribunal's observation at paragraph 43 that: 'This is a case where it is difficult to disentangle the failure to make reasonable adjustments from the decision to dismiss'. Indeed, we would say that it is impossible to dis-entangle them. This claimant was dismissed, as the tribunal point out, because Mr Groves considered that the alternatives to dismissal involved making adjustments which he considered were unacceptable.
69. We accept Mr Dyal's submission that the tribunal's finding on this issue therefore adds nothing in this case. The dismissal was itself an unlawful act of disability discrimination by reason of the failure to make reasonable adjustments.
70. Under the previous legislation s.6 was couched in far more restrictive terms, as the Court of Appeal recognised in Clark v Novocold Ltd, see pp.322 and 324, and it did not extend to dismissal. That changed in 2004 with the arrival of the new s.4A where the duty to make reasonable adjustments is now unqualified. This is also reflected in para. 5.5 of the DRC Code of Practice. A dismissal can therefore itself be an unlawful act of discrimination by reason of a failure to make reasonable adjustments.
71. In this case therefore we accept Mr Dyal's submission that this claimant's dismissal was tainted by the failure to make reasonable adjustments, and was itself an unlawful act. Instead of making those adjustments the respondent chose to dismiss her. It is the recognition of this inevitable state of affairs on the facts of this case that led the tribunal to regard it as self-evident that the claimant was treated less favourably than others.”
“One perspective if one looks at the period August 06 to March 2007 in a period of eight months he had 100 days off sick. So the claimant had a total of 100 days off in eight months. Considering that there are only approximately 220 working days in the entire year, that is obviously a serious problem in any workplace.”
83. As to disability related discrimination Ms Winstone accepted that paragraph 172 of the judgment overstated the adverse impact of the judgment of the House of Lords in LB Lewisham v Malcom [2008] 1 AC 1399. The reality, however, was that no sensible comparison could be made or, indeed, was made as between the Claimant’s treatment in relation to his physical disability and his mental impairment. No other real or hypothetical comparator, either with a different disability or no disability, was advanced at the hearing and the criticism that not all the permutations are dealt with by the Employment Tribunal is of no practical relevance to the case actually argued at the Employment Tribunal.
Discussion and conclusion
The cross appeal
“As far as imputed knowledge goes, the claimant helpfully cites paragraph 5.15 of the DRC Code of Practice 2004:
“If an employer’s agent or an employee such as an occupational health adviser, personnel officer or line manager or recruitment agent knows in that capacity of an employee’s disability the employer will not usually be able to claim that it does not know the disability and that it therefore has no obligation to make a reasonable adjustment. The same applies in respect of actual or potential applicants for employment. Employers therefore need to ensure that where information about disabled people may come through different channels there is a means which are suitably confidential for bringing the information together to make it easier for the employer to fulfil its duty under the act.” [1]
In this specifically the claimant’s counsel cites the occasion when the claimant broke down in tears in consultation with Dr Baxendine shortly after he received a favourable angiogram test. This they say but Dr Baxendine on notice that the claimant was emotionally unstable therefore it was very consistent with his having a personality disorder or mental impairment of some sort and indeed Dr Baxendine accepts in the benefit of hindsight that the diagnoses now put forward by Melinda Rees, the psychologist, made a lot of sense of the events he witnessed over his several consultations with the claimant and his erratic career with the respondent.”
85. Ms Winstone dismissed the above as mere recitation of Ms Palmer’s submission. But it is worth observing that part of the above passage (i.e. the reference to Dr Baxedine’s acceptance that the 2010 diagnosis[2] made sense of his own experience) is not simple recitation of the submission but refers to the evidence heard by the Employment Tribunal. It seems to us, however, that the conclusion reached on “imputed knowledge” by the Employment Tribunal makes it probable that the Employment Tribunal must have accepted this submission, as appears to be confirmed by the terms of paragraph 175 of the judgment. The question is whether they were right to do so? Was that applying “hindsight”, as Ms Winstone submits?
The Appeal
(a) identify the PCP applied by or on behalf of the employer,
(b) identify comparators,
(c) identify the nature and extent of the substantial disadvantage suffered by the Claimant.
105. Accordingly we will dismiss both the appeal and the cross appeal.
[1] Set out as it appears in the judgment without correcting the transcription errors.
[2] The apparent use of the plural in the passage quoted may be a typographical error for the singular.