England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
LORD JOHNSTON PRESIDING

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 May 2005

Lord Justice Pill:

1. This is an appeal by the Home Office ("the appellants") against a decision of the Employment Appeal Tribunal ("EAT"), Lord Johnston presiding, sent to the parties on 26 October 2004. The EAT allowed an appeal by Miss Elaine Collins ("the respondent") against a decision of an employment tribunal, held at Liverpool, sent to the parties on 22 December 2003. The employment tribunal had dismissed the respondent's complaints of disability discrimination and unfair dismissal. The EAT allowed the appeal and made findings that the respondent was discriminated against under Section 5(1) and 5(2) of the Disability Discrimination Act 1995 ("the 1995 Act") and had been unfairly dismissed. The EAT remitted the case to a differently constituted employment tribunal to consider the remedies available to the respondent.
2. The respondent commenced employment with the appellants on 11 May 2000 as an administrative assistant. She was employed on a probationary basis in the Integrated Case Working Directorate, in Liverpool, which dealt with applications for asylum. The normal probationary period was twelve months and a decision would then be taken as to continued employment. Her grade manager was Mrs Karen Nelson who gave evidence before the employment tribunal.
3. It was known that the respondent was an insulin dependent diabetic. In the first six months of her employment she was absent from work for twenty-seven days. She was absent for a further four days between April and August 2001, including hospital visits. None of the absences between 12 July 2000 and 11 June 2001 were stated to be attributable to diabetes and/or depression.
4. Concern was reported in January 2001 and again in March 2001 about the extent of the respondent's absences. Following a further probation report when the respondent had completed twelve months employment, the probationary period was extended for a further six months, a course which the appellants sometimes followed but only in "exceptional circumstances". She was told that her sickness record would continue to be monitored. The respondent became concerned and upset and in August 2001 she was signed off work by her general practitioner with stress and depression. She never subsequently resumed work with the appellants.
5. In September 2001, the respondent was asked to attend an interview with her grade manager. It had been intended to tell her that her probation period would be extended by a further three months to allow her to demonstrate that she could sustain the improvement in her attendance which had occurred in the three months up to August.
6. The case was referred to the Occupational Health Service ("OHS") and a report was received on 10 January 2002. A report had been obtained from her general practitioner which had confirmed anxiety/depression. The Service's doctor thought it would be another six to eight weeks at least before the respondent had recovered sufficiently to return to work but full recovery was expected. The respondent was not capable of present duties due to depression. It was recommended that on return to work she should work initially on a reduced workload basis. A phased return with an agreed programme to build up hours over two to three months would be helpful. There was no evidence of work related stress having contributed to her illness.
7. On 19 April 2002, the respondent was sent a "Minded to Dismiss" letter "on the grounds of failed probation due to unsatisfactory attendance". Both the respondent and her union representative, Mr P Baker, responded to that letter. The respondent stated that she was "working towards returning to work and finds it discouraging to be terminated". She was invited to and attended an interview with Mrs Nelson and Mr S Wharton, head of the Management Unit, on 28 May 2002. She was accompanied by Mr Baker. The appellants agreed to obtain a further report from OHS. The respondent contended that "although her current absence was for "anxiety/depression", this was as a direct result of her having diabetes". It was pointed out to her that in January a return to work in six to eight weeks had been contemplated and that period had elapsed. In a letter of 9 July 2002, Mrs Nelson told the respondent that "any decision will be delayed until you have been seen by the OHS medical adviser and the resulting report considered."
8. The second OHS report is dated 22 August 2002. It was noted that the respondent had been absent since 21 August 2001, with anxiety. The anxiety was found still to be present but progress was being made, with counselling. It was stated "that her anxiety relates to a large extent to her diabetes which was poorly controlled for a period but this has improved".
9. The doctor concluded, first, that the respondent was "not capable of her present duties due to anxiety" and, secondly, that "when she returns she should be capable of a full and effective service after a period of part-time working". The doctor repeated that "when she is fit to return part time working on medical grounds would benefit her". The doctor was asked to estimate the "likely level of absence that could be expected" and he replied: "She should be able to return in three/six months". I read that, as did the employment tribunal, as a reference to returning to the contemplated part-time work.
10. The report was sent to the respondent with a letter of 4 September 2002 which also stated that the respondent's case would now be reviewed and a decision made on her future employment with the respondents. Mrs Nelson added: "If you have any further queries please do not hesitate to contact me on the above number".
11. Mrs Nelson's position was recorded by the Tribunal:

"Mrs Nelson decided that it would not be reasonable for the Department to automatically pursue a return on part-time medical grounds, such arrangements only being made when there is a definite date when an employee would return, and the applicant never provided any such date."

12. Mrs Nelson wrote to Mr S Wharton, who had attended the May meeting. She set out the extent of the respondent's absences and recommended termination of the contract "on the grounds of failed probation due to unsatisfactory attendance".
13. Mr Wharton wrote to the respondent on 18 September 2002 terminating her employment as from 25 October 2002, thereby giving five weeks notice of dismissal. He stated that attendance had not been satisfactory, and that "nothing in your representation alters the view taken in my letter of 19 April 2002". The reason given for termination was that recommended by Mrs Nelson.
14. The respondent had continued to submit sick notes. A note dated 19 September 2002 advised that she should refrain from work for four weeks from 10 September because of depression.
15. The respondent was notified of and exercised her right of appeal to the Civil Service Appeal Board but the appeal was unsuccessful. The respondent's case before the employment tribunal, as recorded in their extended reasons, was that she had been less favourably treated in "the decision not to confirm her probationary period, and the manner in which [the appellants] handled the [respondent's] condition, and finally [the appellants'] failure to make adjustments by providing phased return to work or part-time employment".
16. Sections 5 and 6 to the 1995 Act provided, at the material time and insofar as is material:

"(1) For the purposes 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 purpose 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 purpose 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) …

(7) …

6 – (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."

There is no need to set out the remainder of the section.

17. The employment tribunal set out its conclusions at paragraph 6 of the Extended Reasons. (The references to 'applicant' (Miss Collins) and 'respondent' (Home Office) are so numerous that, in this passage only, I have retained the original designation.):

"The decisions of the Tribunal were unanimous. As to the disability discrimination complaint, it was noted that the respondent conceded the applicant's disability on the grounds of both diabetes and depression, and that the burden to prove her case under the Act is on the applicant. The material facts are that the applicant was on a probationary period of employment conditional upon satisfactory attendance. After 6 and 12 months of employment the respondent was not satisfied having regard to the applicant's absences, which were for other reasons than her disability. The respondent was justified in refusing to confirm her employment. The Tribunal can understand the applicant's disappointment but thereafter her absence was attributed by her doctors to depression and not diabetes. As at the effective date of termination the applicant was still on probation and still submitting sick notes. The applicant was dismissed and her probation was never confirmed because of her absences. The applicant was not treated less fairly on the ground of her disability and indeed it is arguable that she was treated more favourably on the ground of her disabilities. The respondent would not have allowed her probationary period of employment to continue for so long but for her disabilities. The respondent at all material times was awaiting confirmation of the applicant's fitness to return to work but it never happened. The applicant complained that she was not offered a phased return or part-time employment, but the reason given by the respondent, (which was that the applicant was still at the date of termination unfit to return to work at all, either part of full-time) was reasonable and it was reasonable not to pursue the possibility of a phased return or part-time work until she was fit and cold indicate a definite date for her return to work. Any employee on probation would have been treated identically and their employment would not have been confirmed. Moreover there was no evidence of any other employee on probation being offered a return to work on a phased or part-time basis and therefore the Tribunal was not satisfied the applicant was treated less fairly in that respect. In addition the Tribunal is not satisfied a phased return would have been a reasonable adjustment and/or that it would have altered the position; the fact is that at all material times the applicant was medically certified as unfit to return to work. A reasonable employer could have done no more than the respondent did. The Tribunal is not satisfied that any problems with a refrigerator and/or facilities for injection were sufficient to amount to a failure to make reasonable adjustments, and in particular, the applicant had not raised those matters for some time and when she did (as to the refrigerator) the respondent took action. The respondent cannot be fairly criticised on those aspects. The reason to dismiss itself was not discriminatory, but was based on the failed probation based on the applicant's sickness record. The applicant sought to assert that the respondent should have treated her more favourably, but there is no duty under the Act so to do. Accordingly the complaint under Disability Discrimination Act fails and is dismissed. However, even if that decision is wrong and the applicant had established less favourable treatment, the Tribunal is satisfied that the reasons given by the respondent were material and substantial and justified within the Act."

18. The conclusions on unfair dismissal are at paragraph 7:

"… the Tribunal is unanimously satisfied that dismissal on the ground of capability was fair and cannot procedurally be criticised. … In this case the reason for dismissal is quite clear, and was because the [appellant] was satisfied that because of her absence the probationary employment could not be and was not confirmed."

As to procedure, the tribunal stated:

"The only question was her fitness to return to work, depending on the last medical which gave no definite date. The tribunal is satisfied that [the appellants] handled that as any reasonable employer would. The letter of 4 September 2002 gave the [respondent] a further, final opportunity to make submissions which was not taken. In the circumstances, no further interview or consultation was necessary nor is the Tribunal satisfied it would have affected the position in any way".

19. The Tribunal added, in the context of possible remedies:

"… Although the [respondent] sought re-engagement and contended a phased or part-time return to work was appropriate, that could be said to be disingenuous given her continuing sick notes and her refusal to the adjourned hearing on 3 December being held in Reliance House or the Home Office accommodation in Cunard Buildings, Liverpool (because of anticipated shortage of accommodation in the Tribunal offices that day) on the express grounds that it would cause her upset and aggravate her condition. In those circumstances re-engagement, and/or any phased return or part-time employment were never practical possibilities. The complaint of unfair dismissal also fails and is dismissed."

20. The EAT reversed the decisions of the employment tribunal. They first considered the "issue of justification". They held that the employment tribunal had given no reason for the conclusion that "the unfavourable treatment was justifiable on a material and substantial reason". They went on to consider "the question of reasonable adjustment" and held:

"9. … Here the issue really turns in respect of justification because there was no attempt to make any adjustment in terms of offer to the [respondent] and here again as the Tribunal point out in their findings of fact the background to the matter is a plain policy on the part of the employer not to offer return to work on part-time medical grounds to somebody who has been ill, until a date can be identified when such a period of work could start.

10. It is trite law and indeed recognised in a case to which we were referred that an employer cannot justify a failure to make any adjustment by reference to a policy which is not in itself capable of being sustained under the section and we have no hesitation in concluding that the Tribunal so far as they offer any reasons at all, misdirected themselves in rejecting that notion in accepting the policy sufficient to justify the acts in question."

21. The dismissal was also unfair on procedural grounds, the EAT held:

"12. … it is fundamental that after the second medical examination where she was actually examined there should have been a further consultation with her specifically to assess the position which might, for all seen, have had a wholly different result".

The EAT considered that the "minded to dismiss letter" had coloured the whole proceedings:

"13. … This goes fundamentally to the question of unfair dismissal and also colours the notion of reasonable adjustment. One was left with the distinct feeling, if that is the right word, that the employer for all that has been passing in internal memos, was not really intending to make any effort to rehabilitate this employee until she indicated that she was willing and able to return to work. We consider that in both aspects of the case this amounts in one case to discrimination and the other case to unfairness. "

22. It is accepted on behalf of the appellants that there are a number of deficiencies in the terminology used by the employment tribunal in paragraph 6 of the Extended Reasons. First, the reference to disappointment was unnecessary and led nowhere. Secondly, the reference to the respondent not being treated less fairly on the ground of her disability was inappropriate and contrary to the concession made on behalf of the appellants. Thirdly, the comparison between the respondent and "any employee on probation" was inappropriate, as was the later reference to treating the respondent more favourably. Fourthly, the tribunal failed to recognise that if the appellants were in breach of a Section 6 duty they could not, on the present facts, succeed under Section 5(1)(b).
23. The submission made by Mr Bourne, on behalf of the appellants, is that essential and crucial findings of fact, which conclude the case in the appellants' favour, are stated in paragraph 6. The tribunal found:

(a) the respondent was dismissed and her probation was never confirmed because of her absences.

(b) at all material times the respondent was medically certified as unfit to return to work.

(c) the above finding was repeated in paragraph 7 when unfair dismissal was considered: "the appellants were satisfied that because of her absence record the probationary employment could not be and was not confirmed."

(d) at the date of determination, the respondent was unfit to return to work at all, either part-time or full-time and the possibility of a phased return did not need to be pursued until the respondent could indicate a definite date for her return to work. It was reasonable in the circumstances not to pursue the possibility of a phased return.

(e) it was not satisfied in circumstances of a medical certification at all times of unfitness for work that phased return would have been a 'reasonable adjustment'.

Other errors in the paragraph, it is submitted, do not detract from those simple and clearly stated findings which, on a correct application of Sections 5 and 6 of the 1995 Act, determine the present applications and are not challengeable in law.

24. For the respondent, Mr Thacker submits that the court cannot properly rely on a paragraph containing the errors identified in paragraph 6. The tribunal's lack of understanding was illustrated by their failure to set out in their Extended Reasons the relevant sections in the 1995 Act. The members of the tribunal erred in law in failing to ask themselves whether it was reasonable to make an adjustment under Section 6 of the Act, which Mr Thacker identified as the central issue. The appellants had failed to establish that they could not have waited another 3 to 6 months before taking the decision they did. They had failed to consider return on a part-time basis at all.
25. Mr Thacker submits that the appellants failed sufficiently to consult with the respondent and, having regard to the resources available to them, failed to take reasonable steps under Section 6 to enable the employment to continue. In not considering whether the appellants had acted reasonably in failing to make arrangements or adjustments, the employment tribunal had erred in law.
26. The employment tribunal found that the dismissal was justified because of the long absence. However, Section 5(2) provides that an employer also discriminates against a disabled person if he fails to comply with a Section 6 duty imposed on him in relation to the disabled person. The Section 6 duty required the appellants, it is submitted, to make an "arrangement" or "adjustment" by which a phased return to work was possible. Examples in Section 6(3) of steps which an employer may have to take were examples and not an exhaustive list.
27. It is accepted on behalf of the appellants that Section 5(1)(a) does not require the sort of "like-for-like" comparison which is involved under the sex discrimination and race relations statutes (Clark v Novacold Ltd [1999] ICR 951). The reason for the respondent's dismissal was prolonged absence from work due to disability and others without that disability would not have been dismissed for that reason.
28. The test to be applied was stated by Lord Rodger of Earlsferry in Archibald v Fife Council [2004] UKHL 32, at paragraph 43:

"The employer is under a duty to take reasonable steps to prevent the terms of the disabled persons contract from placing her at this substantial disadvantage. ...[What is required] depends on all the circumstances. If the employer fails to take the steps that are reasonable, he discriminates against the disabled person in terms of Section 5(2) and so discriminates against her unlawfully under Section 4(2)(d) if he dismisses her. What steps are reasonable depends on the circumstances of the particular case, which the employment tribunal must establish".

29. For the appellants it is accepted that, if a Section 6 duty arises, it is, by virtue of Section 5(5), incumbent upon the appellants to satisfy it if reliance is to be placed on the justification contemplated in Section 5(1). A Section 6 duty does not arise, it is submitted, on the facts of this case but, whether it does or not, is only of academic interest because there has been no breach of the Section 6 duty. By granting the time they did and obtaining the information they did, the appellants took such reasonable steps. Upon the prognosis provided, they were entitled to terminate the employment.
30. The alleged error of law to be considered is that of the employment tribunal. The EAT held that the employment tribunal had erred in law and that the appellants' decision, described by the EAT as a plain policy, not to offer return to work part-time until a date can be identified when such work could start, was not capable of being sustained under Section 6. No reasons for that conclusion are given.
31. It was necessary for the appellants to consider their duty under Section 6 of the 1995 Act. The requirement was triggered but in a situation where the proposed arrangement or adjustment suggested was a phased return to work and nothing else. Such a proposal does not fit easily into a section which contemplates adjustments to manage disability while at work but I assume, for present purposes, that it comes within the definition. That being so, and if, following the decision to grant a further medical assessment, the evidence in September 2002 had been that the respondent was fit to commence a phased return to work, different considerations would have arisen. That was not the evidence, however, and given the length of the absence and other circumstances, Section 6 did not require the appellants to delay their decision further. Since the respondent could not return to work at all, consideration of part-time working did not arise. Nor, on the present facts, was it incumbent on the appellant to provide, or the employment tribunal to require them to provide, further financial or operational reasons why they should, by virtue of Section 6, again have extended the period before which a decision to dismiss would be taken. The absence was of very considerable length.
32. In my judgment, the employment tribunal were entitled to find that the employer had taken such steps as were reasonable, in all the circumstances of the case. That is the Section 6 issue to which submissions have correctly been directed. If that is established, justification under Section 5(1)(b) is also established. The factors which establish that there is no breach of the Section 6 duty also establish justification under Section 5(3) by providing a reason for dismissal which is material to the circumstances of the case and substantial. (Post Office v Jones [2001] ICR 805)
33. The essential finding of fact is clearly stated, and repeated, in paragraph 6 of the employment tribunal's decision and on the evidence was entirely justified. By September 2002, the respondent had been absent from work for over a year and this had followed a poor attendance record during the first six months of employment. Two extensions of the probationary period had been granted. In January 2002, return to work in 6 to 8 weeks was contemplated. The respondent had still not returned to work by September 2002 and the prognosis on 22 August was that the respondent should be able to return, on a part-time basis, in "3/6 months". A sick note covering four weeks from 10 September 2002 was submitted. The respondent had been kept informed of the position and interviewed.
34. In those circumstances, the tribunal were entitled to conclude that it was reasonable for the appellants not to pursue the possibility of a phased return to part-time work until the respondent could indicate a definite date for her return to work for any period of time. The tribunal noted that all material times the respondent was medically certified as unfit to return to work.
35. The extraneous and erroneous statements in paragraph 6 of the Extended Reasons do not invalidate these findings which are carefully expressed upon a consideration of the evidence and are crucial to the outcome of this case on a true construction of Sections 5 and 6. The conclusion reached is not invalidated by the apparent misunderstanding, with respect, as to how these somewhat complex sections may operate. On the particular facts, the conclusion reached resulted from a correct application of the sections.
36. Upon that finding, a complaint of unfair dismissal can only be based upon a defect in the dismissal procedure. In my judgment the employment tribunal were entitled to reach the conclusion they did on that issue. The probationary period had twice been extended. The respondent had been totally absent from work for eight months before the "minded to dismiss" letter was written. The letter was written well after the period contemplated for continued absence in the medical report of 10 January 2002 had elapsed. The respondent was interviewed in May 2002 and given the opportunity to have a further medical assessment. That assessment in August 2002 did not give a definite date for return to any kind of work but put a bracket of 3/6 months, a longer time than had been contemplated as from January 2002 in the earlier report.
37. While the employment tribunal may have overstated the position somewhat when stating that the letter of 4 September 2002 gave the respondent a further opportunity to make "submissions", the respondent was expressly given the opportunity to make further enquiries, an opportunity which the tribunal found had not been taken up. On that evidence, I see no justification for the EAT's criticism of the appellants' conduct, a criticism which the employment tribunal, as fact finding tribunal, did not make but instead concluded that the employer acted reasonably. Following a long absence, during which the position had been discussed with the respondent, the medical position had become clear (East Lindsey Council v Daubney [1977] ICR 566).
38. I would allow this appeal and reinstate the decision of the employment tribunal.

Lord Justice May:

39. I agree.

Mr Justice Ouseley:

40. I agree. Although the ET made a number of errors and it did not always use the precise language of the statutory provisions, the essence of its findings was clear across the range of issues and its findings were soundly based in the evidence.
41. There were findings that the employee had failed her probationary period even though it had been extended; she had been absent for a total of 30 days in the year. She had been absent by the date of dismissal for over a year and there was no prospect of a return to work, even part time for months. No offer of part time work would see her imminently return to work. There was material which justified the discriminatory treatment which her dismissal was conceded to involve. The fact that it may not have been put in precisely that way by the ET did not destroy the relevance or soundness of its conclusions as the legally sufficient answer on the justification for the discriminatory treatment. And those facts were clearly seen by the ET as justifying the dismissal.
42. The step which it was said should reasonably have been taken for the purposes of section 6 of the 1995 Act was to offer part time work instead of full time work. Assuming that to be within the scope in principle of reasonable steps, such an offer would plainly not have been a reasonable step by reference to section 6(4)(a), because it could not prevent the effect in question. The employee was not ready to return to work after a long absence, even if part time work were offered, and whatever she herself might have hoped. As the ET found, she would not be ready to return for some months yet.
43. The ET did not make the error attributed to it by the EAT of regarding the employer's policy of not offering part time work to someone until they were ready to return to work as the simple answer to the reasonableness of taking that step. It considered that issue in the light of the employee's employment history and prognosis as well. But it cannot be regarded as an irrational policy, even if it may not be the complete answer on reasonableness.
44. The dismissal was for the substantive reason of capability. It was procedurally fair as found by the ET in its reasonable assessment of that issue in the light of the facts which it found: monitoring of her work and absences in her probationary period, the first Occupational Health Services report, the minded to dismiss letter, the subsequent discussions, the further OHS report-this time after a personal examination of the employee, her worsening condition and an opportunity to make further representations, which although not explicitly offered to her, was available through both the time which she had after the letter sent to her following the second OHS report and her awareness of the past sequence of events, including the minded to dismiss letter. This sequence did not obviously and inevitably require a further interview, so that its absence demonstrated an inevitable unfairness in the dismissal. It is vastly different from the facts in East Lindsey DC v Daubney [1977] ICR 566.
45. I would reject the notion that the minded to dismiss letter here indicated that a final decision had been made and that what followed was mere procedural window dressing. That was not a conclusion which the EAT was entitled to draw from the evidence or findings.
46. Although the ET did not always observe the precise structure of the legislation, its assessments on fact and degree and its findings of fact did not permit the EAT to interfere. It should have taken those assessments and findings and applied them to the statutory framework. They certainly did not permit the EAT to conclude that the facts permitted of only one conclusion, namely one which was to the opposite effect to that of the ET.