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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Taiwo v Department for Education (Disability Discrimination : Reasonable adjustments) [2013] UKEAT 1802_11_2905 (29 May 2013) URL: https://www.bailii.org/uk/cases/UKEAT/2013/1802_11_2905.html Cite as: [2013] UKEAT 1802_11_2905 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
RULE 3(10) APPLICATION - APPELLANT ONLY
For the Appellant | MR ![]() ![]() (of Counsel) (Appearing under the Employment Law Appeal Advice Scheme) & MR R TAIWO (The Appellant in Person) |
SUMMARY
DISABILITY DISCRIMINATION – Reasonable adjustments
SEX DISCRIMINATION – Direct
Multiple claims of sex race and disability discrimination were dismissed by the Employment Tribunal which had carefully case managed the complex issues. No error of law was found to be reasonably arguable. Opinions of appellate judges on the sift confirmed.
HIS HONOUR JUDGE McMULLEN QC
Introduction
"The Appellant has put in a new Notice of Appeal. His covering letter describes it as containing "re-emphasised facts". That is not a proper function of a Notice of Appeal. It should demonstrate what errors of law it is contended that the Tribunal below has made.
As foreshadowed by the covering letter, the Notice of Appeal actually seeks to address (at undue length and minute detail) only the factual findings made by the Tribunal. The essential thrust is that the Tribunal made findings of fact not based on any evidence or, at least, not warranted by the available evidence. These criticisms made of the Tribunal do not withstand even cursory scrutiny.
For example, at para 9, the Notice of Appeal criticises the Tribunal for finding that the Appellant had "behavioural difficulties" and "lacked insight" in the absence of evidence to either effect. As to the former, the Tribunal set out in terms what they meant by their use of that phrase [at 5.4] and it is unobjectionable in that context. As to the latter, the Tribunal saw and heard the evidence of the Appellant and had before them his extensive writings. It was open to them to find that, in their judgment, the Appellant lacked insight. The same paragraph of the Notice of Appeal refers, without any qualification or insight, to a document of 30 handwritten pages prepared by the Appellant as constituting a "summary" of his work."
"Both Notices of Appeal amount to no more than a wholesale disagreement with the findings of fact to which the Employment Tribunal came. It is a detailed and, often, tendentious, disagreement with virtually each and every facet of the decision and imputes improper and corrupt motives to the Employment Tribunal on no other basis than the Appellant cannot countenance that the Employment Tribunal could, in good faith, have, decided against him. These grounds are unarguable and by their length, lack of any coherent form and outrageous aspersions on the good faith and integrity of the Employment Tribunal are an abuse of process."
The legislation
The claims
The appeal and conclusions
"7.35 Adjustment 8 - informing or enlightening the claimant's colleagues about the syndrome and the effect of it.
7.36 This is a difficult point. In principle it may be appropriate for an employer to inform its employees that a particular individual has Asperger's Syndrome. It may also be appropriate to educate those individuals as to the effect. However, what is less clear is when it will be appropriate, how it should be communicated, and what should be communicated. There may be occasions when it is appropriate to have such communication and, equally, occasions when it is not appropriate. We have to consider whether this respondent breached its duty by not telling the claimant's colleagues first of the fact that he may have Asperger's Syndrome and second by seeking to educate them as to the effect.
7.37 Here we take the view that the respondent has not breached its duty. We reach that conclusion for a number of reasons. There was no formal diagnosis of Asperger's Syndrome. There was no agreement at the relevant time as to the actual effect. There was no agreement as to what information should be given to employees and what they should be asked to do. The respondent did start to explore the matter. There was some suggestion that colleagues should be educated. The occupational health report of 17 May 2010 makes the suggestion that the line manager and colleagues should endeavour to understand the effect of the Asperger's Syndrome. However that report was not clear as to what exactly should be communicated and by whom. The respondent did obtain a report from the National Autistic Society. However, that report was not obtained until December 2010. We do not consider that it was necessary to obtain a report before then particularly having regard to the amount of time the claimant was off ill when the respondent did make effort to obtain other medical evidence. That report itself suggests that any communication should be through an expert. The respondent did not have the claimant's disclosure without his authority and without a clear understanding of the parameters could risk an allegation of harassment and could also potentially cause the claimant distress. Finally, given that his main problem was with Ms Simpson and she did know of the possible Asperger's Syndrome, we doubt that telling others would have led to a change in the environment which would have led to a lessening of the relevant effect. We do not accept that there was any particular problem caused to the claimant by the interaction with others who did not have specific knowledge. In the circumstances, we do not consider that this respondent has breached the duty in this case." [emphasis added]
"In this case, the tribunal has not had the benefit of a specific medical report. This is unfortunate as the claimant's condition is complex. Nevertheless, we do have information which is of assistance to us. The letter from Dr Parker of 20 November 2009 records that the small vessel disease impacting on the claimant's brain could lead to impairment of is ability to make judgements and his work performance. Small vessel disease is a well recognised cause of dementia in old people. The sickle cell anaemia has caused small vessel disease at an early age. Exactly how this relates to the Asperger's Syndrome symptoms, if at all, is unclear. On our overall reading of all the medical evidence we take the view that none of the medical practitioners appear to be certain as to the exact causation. However, what is absolutely clear is the claimant has underlying difficulties which affect his judgement and his functioning. We can refer to this generally as "behavioural difficulties.""
"7.66 Allegation 1 - not allowing the claimant to work at home and allegation 2 - not paying for taxis for the claimant to come to work.
7.67 These allegations can be considered together. The claimant has cited one comparator. We find that Mrs Funmi Osazuwa was not a statutory comparator as her circumstances were different. She had musculo-skeletal difficulties affecting her back and her limbs. That condition did not arise out of Sickle Cell Anaemia. Her impairments were not the same. Her case was considered individually. Adjustments were made. The respondent paid for taxis. We do not know exactly how difficult it was for her to get to work on public transport. However, the claimant falls far short of establishing he was in the same position physically. She was also allowed to work from home. However, there is no indication whatsoever that she had any basic difficulty with her duties. She was in a fundamentally different position. We find that she is not a comparator.
7.68 When constructing a hypothetical comparator we would have to consider someone in the same circumstances as the claimant who was female. Those circumstances would include the same impairments which had the same effect. This would include the behavioural difficulties. There is no credible evidence on which we could concluded that a woman in those circumstances would be treated any differently. The difference in treatment is not established. There is nothing to suggest any treatment was on the grounds of sex. Further, we are satisfied the respondent has produced an explanation which in no sense whatsoever is on grounds of sex. That explanation relates entirely to the behavioural difficulties as exhibited by the claimant which caused the problems managing him, which we have explored."