England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE EMPLOYMENT TRIBUNAL
(RIMER J)
BAILII: [2004] UKEAT 0476_03_0403

		Royal Courts of Justice Strand London, WC2
		26 August 2004

1. LORD JUSTICE KEENE: This appeal raises what is, in the end, a relatively short point, namely how much detail an Employment Tribunal has to go into when determining what were the reasonable steps which an employer should have taken to perform its duty to a disabled person under section 6 of the Disability Discrimination Act 1995 (the "DDA"). I use the phrase "in the end" because other issues have been canvassed during the course of the progress of this case through the Employment Tribunal and then the Employment Appeal Tribunal (the "EAT") but those other issues are no longer live ones now.
2. This is an employer's appeal from a decision of the EAT, sent to the parties on 17th March 2004. By that decision the EAT upheld a finding by an employment tribunal that the respondent, Dr Travis, had been discriminated against for a reason relating to his disability. It also upheld (although only in part) the Tribunal's decision that the respondent had also been unfairly dismissed. There is no appeal or cross-appeal on the EAT's decisions in respect of unfair dismissal.
3. The facts of the case are fully and helpfully summarised in the Tribunal and EAT decisions, and I shall seek to confine myself therefore to those which are of the greatest relevance for present purposes.
4. Dr Travis is a highly qualified software engineer. He began his employment with the appellant in effect in February 1990, but from May 1994 onwards he had three periods of time when he was absent from work through illness, namely schizophrenia. The third of those periods began in June 1997. He was off work from then until, in August 1999, he requested to return to work. It then emerged that his IT skills were out of date, he having not employed them during the period when he was off work ill. There was an added complication, namely that his security clearance had lapsed. Much of the appellant company's work was of a secret nature, being done for the Ministry of Defence.
5. As a temporary measure he was employed to carry out work for a Mr Richardson on software in connection with a particular project. This was not revenue producing work, in the sense that it was not directly billable to an account or a client of the appellant.
6. In September 1999 the Ministry of Defence asked for a medical report on him to assist in determining whether or not fresh security clearance should be provided. The report, produced in October of that year, showed that, although Dr Travis was fit to return to work, he suffered from a disability, namely schizophrenia. In November 1999 his security clearance was partially reinstated. It was to be reviewed in twelve months' time. In the meanwhile he continued to work on the non-revenue producing project.
7. The Employment Tribunal found that the constraints on security clearance meant that it was difficult to get him back into that part of the appellant company's business known as EDS Defence, much of whose work was of a very highly classified nature.
8. From the fourth quarter of 1999 the appellant company engaged in a major restructuring exercise, known as 'Breakaway'. Its object was to review and in effect to make redundant all those staff who were non-revenue earning. That was to be the sole criterion for making staff redundant, and in the event some 1,700 staff were in due course made redundant over the following months. The respondent, Dr Travis, was at risk because he came into this category, namely non-revenue earning, in the post that he was at that time filling.
9. He was not told at the time that he was at risk of redundancy, but the resourcing manager, Ms McCartney, gave evidence that she was looking from November 1999 onwards to find him a permanent role with the appellant. The Tribunal commented that there was no documentary evidence to demonstrate any such efforts until in fact February 2000. Also, and in particular, the Tribunal found that there was no evidence of any kind of effort by the appellant to train Dr Travis in any respect.
10. In February 2000, one of the appellant's project managers, Mr Ralph, did interview the respondent in connection with a project known as 'Tamper Package 2'. However, Mr Ralph concluded that the respondent's skills in the relevant area were not current and his depth of knowledge of the areas of interest was not sufficient. Consequently Dr Travis was rejected. Mr Ralph gave evidence to the Tribunal that had he been aware that the respondent only had limited security clearance he would have ruled Dr Travis out from the outset.
11. By 21st February 2000 the appellant was actively considering making Dr Travis redundant, and he was told of this on 3rd May. Finally, a letter was sent on 30th May to say that attempts to find redeployment within EDS had proved unsuccessful, and he was given formal notice of termination due to redundancy, with the last day of employment to be 8th June 2000. The Tribunal found that the only apparent effort made at that stage during May by the appellant to find an alternative role was a series of emails sent by Ms McCartney to three other managers in the company, enclosing Dr Travis's CV and asking whether there were any alternative roles available. It will be borne in mind of course that at this stage still there had been no retraining of Dr Travis to bring his IT skills in any way up to date.
12. Before the Tribunal it was not in dispute that Dr Travis suffered from a disability and that he had been dismissed. The Tribunal found that the arrangements made by the appellant company placed Dr Travis at a substantial disadvantage in comparison with those who were not disabled, the arrangements being those arising in consequence of the 'Breakaway' redundancy exercise in respect of non-fee earning posts. The substantial disadvantage arose in connection with applying for fee-earning posts because of his lack of security clearance and his rusty skills. Both of those were the direct result, said the Tribunal, of his illness and his absence from work. So far no error of law is said to arise from the Tribunal's approach.
13. The appellant was thus under a duty by virtue of section 6(1) of the DDA "to take such steps as 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", that is to say the substantial disadvantage. The Tribunal correctly noted that there was discrimination if the employer failed to comply with that section 6 duty in relation to Dr Travis, subject to any justification being established for the failure: see section 5(2).
14. The Tribunal set out in full the terms of section 6(4), to which I shall return in due course, and it then said this at paragraph 47 of its determination, Dr Travis being referred to at that stage as the applicant:

"The Tribunal in arriving at their decision found that it was common ground in this case that the applicant was a disabled person within the meaning of the Act. On the applicant's return to work in October 1999, the respondents were clearly aware of that fact. They had a medical report which they had commissioned. They were conscious of the fact that the applicant lacked sufficient security clearance because of his illness and also that his skills were rusty, he not having practised them due to the duration of that illness. Notwithstanding that, however, they made no effort to provide him with any form of training, beyond the 'on the job' training he was required to undertake himself whilst being slowly reintroduced to work under Mr Richardson's 'wing'. The Tribunal did not accept the respondent's argument that training is something which the respondents might only have considered with the benefit of hindsight. They had the benefit of medical advice and had made their own assessment of his capabilities and training was an obvious option."

15. The Tribunal found that the appellant company did not sufficiently consider alternatives to dismissal and what steps might reasonably have been taken to assist Dr Travis in those circumstances. It concluded that the appellant had not taken all reasonable steps to stop the disadvantage and that that failure had not been justified and thus there was a breach of the section 6 duty.
16. Before the EAT it was contended on behalf of the appellant that the Tribunal had failed to explain sufficiently what section 6 steps should have been taken. The EAT rejected that argument. It noted the Tribunal below's finding that Dr Travis's disability was manifested in the fact that his skills were out of date and in his lack of security clearance. The EAT said that it followed in principle from that finding that the employer was under a duty to make reasonable adjustments directed at stopping Dr Travis suffering that disadvantage and in particular that he should have been provided with training so as to update his skills. The EAT, presided over by Rimer J, then said this of the Employment Tribunal's decision:

"It is correct that it [the Tribunal] did not identify more precisely what training was to be provided, but we do not regard any lack of precision in this respect as vitiating the decision: it was the training necessary to bring Dr Travis's IT skills up to date."

17. That conclusion by the EAT is now challenged by the appellant. When permission to appeal to this court was granted by Maurice Kay LJ at an oral hearing two arguments seem from the transcript of his judgment to have been successfully canvassed in respect of the section 6 duty. First, it was said that, even had training been provided, Dr Travis could still not have done "his job" because of lack of security clearance from the Ministry of Defence. Secondly, it was argued that training would have made no difference because Dr Travis's existing post was disappearing due to redundancy. Reliance in that respect was placed on the Court of Session decision in Archibald v Fife Council [2004] IRLR 197, where Lord Hamilton had interpreted the duty under section 6 as being one to take reasonable steps in respect of the particular job done by the employee and not extending to affording a disabled employee a different job. That decision has since been reversed by the House of Lords at reference 2004 UKHL 32. In the course of his judgment in that case Lord Rodger of Earlsferry at paragraph 40 drew attention to paragraph 4.20 of the Code of Practice, which states as follows:

"If an employee becomes disabled, or has a disability which worsens so she cannot work in the same place or under the same arrangements and there is no reasonable adjustment which would enable the employee to continue doing the current job, then she might have to be considered for any suitable alternative posts which are available. (Such a case might also involve reasonable retraining.)"

18. So the argument advanced by the appellant has concentrated on the alleged lack of consideration and lack of detail in the Employment Tribunal's decision about what sort of training should have been given, at what cost, over what period of time and to what effect. It is contended that such degree of precision is necessary if a tribunal is to determine that training amounts to steps which are "reasonable" in all the circumstances of the case.
19. Miss McKie, who appears today on behalf of the appellant, as she did before the EAT, though not the Employment Tribunal, draws attention to section 6(4) of the DDA, which provides as follows:

"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 and the extent to which taking 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.

This subsection is subject to any provision of regulations made under subsection (8)."

20. That subsection was set out in full by the Tribunal in its decision, but it is submitted that the Tribunal failed to apply it. Miss McKie argues that there is no evidence that the Tribunal went through the relevant factors as set out in section 6(4). She concedes that cost was not in issue so far as training was concerned and that the only matter which was said to have been raised before the Tribunal was the time which training would have taken. It is asserted that before the Tribunal there was evidence that training could take between three and six months. The witness statements, unfortunately, did not themselves deal with this in writing, but it was said that there was oral evidence to that effect. Consequently it is argued that the steps in so far as they consisted of training Dr Travis to update his IT skills were not reasonable ones because of the time which that would have taken. In addition it is submitted that retraining would not have made any difference to Dr Travis's ability to have been found some alternative job. That is because it is argued by Miss McKie that the only evidence about alternative positions put before the Tribunal was about 'Tamper Package 2' - the project being handled by Mr Ralph. That was a project which, as I have indicated already, required a security clearance not possessed by Dr Travis. Consequently it is said that the steps envisaged by the Tribunal would not have met paragraph (a) of section 6(4).
21. It is also submitted that the Tribunal never indicated how the lack of security clearance on Dr Travis's part was to be overcome. It was needed for 'Tamper Package 2' and, on the face of things, could not have been obtained until late 2000, which was well after the 'Breakaway' redundancy exercise had been completed. However, it is conceded by Miss McKie that there was no witness statement put before the Tribunal that said in terms that if Dr Travis's IT skills had been brought up to date there would have been no vacancy for him: all the focus was upon the 'Tamper Package 2'.
22. I say straightaway that for my part I do not find the appellant's arguments on this aspect of the case at all persuasive. The Tribunal's decision must be read as a whole and it must be read in context. The disadvantages suffered by Dr Travis were the fact that his IT skills were out of date because of his being off work ill and the fact that he lacked a full security clearance. The latter does not seem to have been something which would necessarily have prevented his deployment had he been given proper training. The Tribunal found, as the EAT pointed out, that much of the company's work was of a very highly classified nature; but that carries the clear implication that some was not. There is nothing before us to show that there was evidence presented to the Tribunal that retraining would have been ineffective because of the lack of a full security clearance, that is to say that no alternative post could have been found once Dr Travis's skills had been brought up to date. As for the type of training required, that was, as the EAT noted, obviously such as would bring Dr Travis's IT skills up to date.
23. Did the Tribunal err in not going into more detail on what this would involve and whether it was practicable? In answering that question one needs to bear in mind that on the face of it the company does not seem to have pursued any point about the degree or type of training needed when it presented its case to the Tribunal. It does not seem to have been argued that bringing Dr Travis's skills up to date would have been too expensive, for example, for the company; all the appellant contended at that stage was, as recorded at paragraph 37 of the Tribunal's decision, that:

"... so far as training was concerned, it was easy to say now with the benefit of hindsight that some steps might have been taken, but, it was submitted, the Tribunal should not be creative with the benefit of hindsight."

That as a submission indeed on the face of it does not appear to be consistent with the arguments now being advanced about the fact that training would not have been practicable because of the shortage of time.

24. It must be recognised that the extent to which an Employment Tribunal needs to spell out its findings on the individual matters set out in section 6(4) of the DDA will inevitably depend on how controversial those matters were. So long as it is clear that it has section 6(4) in mind - and in my judgment that follows from the clear reference to it in the course of this decision - that will suffice so long as it then deals with the issues which are raised on the provisions of that particular subsection.
25. It is now said, as I have indicated, that training would have taken too long and that there was evidence before the Employment Tribunal to this effect. The problem with that submission to my mind is twofold. First of all, there is no witness statement presented to the Employment Tribunal that ever said that. Nor do we have any affidavit evidence before us to show that that point was taken orally. It was scarcely touched on in the course of argument before the EAT. But if this was an important point in the company's case, one would have expected there to be some evidence to demonstrate that this particular point was taken. Although Ms McKie is instructed that the point was taken orally, I have to record that it is not recollected by Dr Travis's solicitor that that is the case. In my judgment the evidence before us is simply inadequate to establish the point that is now presented in argument.
26. Secondly, in any event one would doubt whether it was a point of real significance, given the chronology of this matter. It was in August 1999 that Dr Travis requested to return to work, and he seems to have been interviewed and his skills considered relatively soon after that. It was not until February 2000 that active consideration was, on the Tribunal's findings, being given to making him redundant. While that may go to the merits of the particular point, it would also seem implicit in it that it is most unlikely that the company would have been seeking to press this point before the Tribunal.
27. I note also that the Tribunal expressly stated that it preferred the submissions made to it on behalf of Dr Travis in paragraph 46. Those submissions drew the attention of the Tribunal to the nature and size of the appellant company and its resources, to the fact that it was a multi-national company with over 19,000 employees, with more than sufficient resources to have taken the necessary steps so far as training was concerned: see paragraph 19 of that decision. Those propositions do not seem to have been disputed by the appellant company.
28. It seems to me that the reality is that the Tribunal identified the problem of Dr Travis's skills being rusty. It was, in the circumstances of this case and the issues being raised by the company, enough for the Tribunal to have found that it was a reasonable step for the company to have provided training to bring those skills up to date. It did not have to go into detail as to precisely how far updating needed to be taken or precisely what that would involve in terms of the fine detail of the training provision. Had it done that, had the company provided that degree of training to update Dr Travis's IT skills, his disadvantage in seeking an alternative and revenue earning post in the company could well have been overcome.
29. Much of the appellant's case in this court seems to rest on the fact that the only evidence in detail about alternative posts put before the Tribunal concerned the 'Tamper Package 2' - the one for which Dr Travis was actually considered. That, however, does not invalidate the Tribunal's approach. In another case the EAT has held that it is for the employer to call evidence that there was no alternative employment available in such circumstances, since the potential for such alternative employment lies, in practice, exclusively within the employer's knowledge: see Conoco Ltd v Booth 30th January 2001, so far unreported. I agree with that proposition. There was no evidence in the present case that Dr Travis would not have avoided redundancy if his skills had been brought up to date in the way suggested.
30. The appellant also contends that the Tribunal failed to give adequate reasons for its decision on this issue. On that ground it relies upon the well-known case of Meek v Birmingham DC [1987] IRLR 250. In my view this point adds nothing to the arguments already advanced. It is the same contention dressed up in somewhat different clothes. I reject it for the reasons which I have already given on the first ground.
31. I conclude that the Tribunal was entitled to find that the appellant failed to take reasonable steps. No issue is now raised as to the finding on the lack of justification for that failure. It follows that there was a breach by the appellant company of its section 6 duty. For my part therefore I would dismiss this appeal.
32. LORD JUSTICE WALL: I agree and have nothing I wish to add.
33. LORD JUSTICE NEUBERGER: I also agree.

ORDER: Appeal dismissed; appellant to pay costs, summarily assessed in the sum of £8,000 plus VAT.