England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Peter Clark, Mr M Clancy, Mr M Worthington.
UKEAT015713M

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/12/2014

Lord Justice McCombe:

Introduction

1. This is an appeal from the order of the Employment Appeal Tribunal ("EAT") of 10 October 2013 dismissing the appeal of Mrs Judith Chenembo ("the Appellant") from the order of the Employment Tribunal (London South) ("ET"), formally entered on 26 March 2012, which dismissed her complaints of unlawful disability discrimination and unfair dismissal brought against her former employer, the London Borough of Lambeth ("the Respondent").
2. The Appellant's employment by the Respondent as a "parking representation and appeal officer" began on 26 April 2004 and ended on 7 September 2010 when her resignation took effect.

Background Facts

3. The background facts of the case are set out extensively in the judgment of the ET from which it is necessary to pick out only some of the more significant features which affect this appeal.
4. The ET recites early in its judgment certain personal conflicts that had arisen between the Appellant and her colleagues in the Respondent's employment. However, the principal feature of the case is the history of the Appellant's numerous absences from work through illness. In paragraphs 7 to 11 of its judgment the ET set out a number of absences on the Appellant's part between November 2005 and August 2008, leading to the compilation on 9 November 2008 by the Respondent of an "action plan" directed to meeting the situation.
5. In November 2008 the Appellant planned to move home with her family from Battersea in London to the Ashford area of Kent, but initially retaining the Battersea property as a "second home". The final move was apparently delayed until Christmas 2009 because of a need to carry out repairs at the new home. It is clear that this move, from an address relatively close to her place of work to somewhere much further removed, was a significant feature in the difficulties that arose thereafter.
6. Returning to the history of the Appellant's absences, on 10 November, a period of three days absence occurred through a stomach upset; between 24 and 28 November 2008 there was a five day absence on account of influenza. After this, on 9 December 2008 a conference was held by the Appellant's managers with the personnel department concerning her continuing sickness issues. On 23 December 2008 there was a supervision meeting between the Appellant and one of her managers (a Mrs Waitson) when management concerns over her sickness periods (21 days over 10 separate periods) were raised. The Appellant was informed that short bouts of intermittent sickness absences were regarded by the Respondent as a conduct issue. The outcome was confirmed in writing by letter to the Appellant of 14 January 2009. She was informed that the position would be monitored over the ensuing 6 months and would be reviewed after 3 months.
7. In February 2009 the Appellant was absent for 3 days with swollen eyes.
8. On 8 June 2009 the Appellant applied to the Respondent for flexible working on the ground that she had "recently moved to Ashford in Kent". The request was amended in its details on 23 June 2009.
9. The Appellant was absent for three days between 6 and 8 July (Monday to Wednesday) with the same eye problem.
10. On 20 July 2009 the Appellant submitted a third application for flexible working for a trial period from 1 September 2009. On the same day, Mrs Waitson wrote to the Appellant saying that further absences might result in progression to stage 2 of the Respondent's sickness policy. A fourth application for flexible working was submitted on 9 September.
11. It seems that the problems with repairs to the Ashford property were continuing and the Appellant, her husband and two young children moved to a single hotel room in a modest hotel for nearly a month. The ET recites the problems that this accommodation situation inevitably caused in caring for the Appellant's family. The Appellant told the ET that on 13 October 2009 she suffered a severe panic attack and after consulting her doctor she received medication and was signed off work for a week with stress. From that date until the end of her employment with the Respondent the Appellant was signed off with stress, anxiety, depression or "anxiety state", although the last sickness certificate available to the ET was dated 18 April 2010.
12. By December 2009 the Appellant was discussing with a Mr Tony Eka, another manager in the Respondent's organisation, a possible occupational health assessment. The Appellant raised problems of travel to such an appointment from her new home in Ashford. Mr Eka informed her by letter of 14 December 2009 that an assessment would be arranged and she was invited (on 6 January 2010) to attend for assessment in London on 22 January.
13. The ET sets out in its judgment difficulties that arose between the Appellant and the Respondent with regard to the supply of medical certificates under the respondent's sickness policy. In due course, the Appellant was to allege that the correspondence on this issue amounted to harassment. The harassment dispute forms no part of the arguments on the present appeal and I mention it only for the sake of completeness. The history appears in full in paragraphs 33 to 37 of the ET's judgment.
14. On 12 January 2010 Mr Eka wrote to the Appellant inviting her to a formal "attendance review" meeting on 29 January 2010, with a view to discussing the occupational health assessment then due to be conducted on 22 January. That assessment did not take place and was re-fixed for 2 February. The attendance review was postponed to 12 February. The Appellant had had child care problems on 2 February.
15. I turn now to events between 16 February 2010 and 26 March 2010, dealt with in paragraphs 40 to 48 of the ET's judgment in this case, which feature significantly in the procedural history of the case and to which I shall return.
16. The attendance review was re-arranged, before any new date for an assessment had been set, for 16 February 2012 and was notified to the Appellant by letter of 11 February. By e-mail of 16 February, appearing on its face to emanate from the Appellant herself (although said by her to have been written by her husband, Mr Mefful) it was said that the appointment letter and another letter relating to suspension of sick pay had been received that day. With regard to the attendance review appointment, the e-mail said,

"…please be aware that I am still incapacitated and unable to attend work for meetings, I am however happy for the meeting to take place at my home if you wish…"

The meeting scheduled for 16 February did not take place and it was re-scheduled for 24 February (notified to the Appellant by letter of 19 February which stated that if she did not attend the meeting a decision might be made in her absence). (The ET said it approached with considerable caution the contention that the e-mail of 16 February had been written by Mr Mefful rather than by the Appellant herself. The ET said that there was nothing about the content or format of the message which was consistent with it having been written by anyone other than the Appellant personally.)

17. On 22 February, the Appellant again wrote to Mr Eka saying that she could not attend meetings but would be prepared to hold a meeting at home or over the telephone. She did not attend the meeting fixed for the 24 February.
18. By letter of 16 March 2010, Mr Eka informed the Appellant of the outcome of the meeting of 24 February, which had proceeded in her absence. The letter set out in detail the history of the Appellant's absences and her apparent inability to attend meetings to discuss her condition with management. She was informed that a further occupational health referral would be arranged with a review meeting thereafter. Mr Eka said that he had decided to issue her with a formal warning, to remain on the file for 12 months, and that, in the absence of improvement or deterioration the case might progress to a formal sickness hearing at which a decision would be made and that the decision could include dismissal. The letter informed the Appellant of the right of appeal against the sanction imposed, i.e. the warning.
19. On 17 March the Appellant was notified of a health assessment appointment that had been fixed for 26 March in London. On 19 March the Appellant exercised her right of appeal against the formal warning. The appeal was ultimately considered by a two member panel, in the Appellant's absence, on 7 April 2010 and was dismissed.
20. The Appellant attended the health assessment on 26 March. The doctor reported that the Appellant continued to suffer from anxiety "contributed to by work-related factors especially workload and relationships". He found that she was not permanently incapable and would be fit for work "over the next few weeks". It appears that there was no mention of disability.
21. This concludes the chronological history dealt with by the ET in paragraphs 40 to 48 of its judgment which were to be significant in the proceedings in the EAT.
22. The ET recorded that in April/May 2010 the Appellant applied for a job with Camden Council and attended an interview for that job.
23. On 17 May 2010 the Appellant issued her first complaint against the Respondent before the ET, alleging disability discrimination.
24. From this time the ET's recitation of the history of the case, which I have endeavoured to summarise, concentrates upon various features of the medical assessments of the Appellant that were conducted in June and July 2010. For reasons that will appear from the procedural history, to which I shall turn shortly, it is not necessary for this appeal to say any more about this aspect of the facts of the case.
25. On 7 August 2010 the Appellant wrote to the Respondent by e-mail terminating her employment and alleging constructive dismissal.
26. On 28 October 2010 the Appellant issued a second Claim Form in the ET alleging discrimination on grounds of disability, harassment and unfair dismissal.

Procedural History

27. The hearing of the Appellant's claims came before the ET for hearing on 12-14 September 2011, with deliberations by the members recorded as being conducted on 25 October 2011, 25 January and 8/9 March 2012. Judgment, dismissing the claims, was sent to the parties on 26 March 2012.
28. It is important to set out the ET's statement of the issues that fell to it to decide. That statement is to be found in paragraph 2 of its judgment and is in these terms:

"The issues arising under the combined complaints are set out in a document dated 7 March 2011. Following further refinement of those issues following a discussion at the commencement of the hearing the complaints for the Tribunal's determination under the combined claims are as follows:

(i) Unlawful Disability Discrimination. The issues arising under this complaint are firstly whether the Claimant was a disabled person at the relevant time and, if so, whether the Respondent knew or should reasonably have been expected to have known of that disability. If the Tribunal finds that the Claimant was a disabled person the complaints to be determined are whether the Respondent failed in its duty to make reasonable adjustments in relation to its request that the Claimant attend various face to face meetings with the Respondent, it being alleged that a reasonable adjustment would have been to conduct meetings with the Claimant by means of a telephone meeting or a home visit. In addition, there are four separate complaints of unlawful disability harassment. They are:

(a) Correspondence in which the Claimant's manager requested her to attend meetings in person;

(b) Correspondence in which the Claimant's manager accused her of failing to comply with the sickness policy and procedures;

(c) Correspondence in which the Claimant was alleged to have disobeyed a management instruction by not being able to attend work for a meeting with management; and

(d) The Respondent partly withdrew the Claimant's sick pay.

(ii) Unfair Constructive Dismissal. The Claimant contends that she resigned in response to a repudiatory breach of contract on the part of the Respondent. In addition to the five complaints of unlawful disability discrimination set out above, the Claimant additionally relies in support of her complaint that the Respondent placed itself in serious breach of contract on the following matters:

(a) The Respondent gave the Claimant a formal warning following her absence rather than discounting it on the grounds of disability;

(b) The Respondent failed to arrange a meeting with the Claimant to discuss the occupational health report of 26 March 2010;

(c) The Respondent failed to consider the Claimant's grievance contained within her appeal letter dated 19 March 2010; and

(d) The Respondent's human resources department gave and the Respondent's managers accepted the HR advice both to issue the absence warning referred to above and to refuse to have a formal review meeting at the Claimant's home."

29. It will be noted that the list of complaints under Disability Discrimination Act 1995 ("DDA 1995") for determination were (a) a failure to make "reasonable adjustments" (i.e. under DDA 1995 s. 3A(2)/4A) in relation to the Respondent's request that the Appellant should attend face to face meetings and (b) four complaints of unlawful disability harassment (under DDA 1995 s.4(3)). There was no question arising as to the issue of the formal warning of 16 March 2012 being a disability discrimination subjecting the Appellant to "any other detriment" under DDA 1995 s.4(2).
30. The ET found that the Appellant was not a disabled person for the purposes of DDA 1995. However, it went on to consider the disability complaints on the basis that, contrary to its finding, the Appellant was entitled to protection under the Act as a disabled person. The ET found that, on this hypothesis the Appellant's claims of failure to make reasonable adjustments and of harassment must also fail. The ET finally considered the complaint of constructive unfair dismissal and found that it too could not succeed.
31. On the "reasonable adjustments" issue, the ET said this in paragraph 79 of its judgment:

"79. We deal first with the allegation that the Respondent failed in its duty to make reasonable adjustments for the purposes of section 4A of the 1995 Act. The provision, criterion or practice relied upon by the Claimant in relation to this complaint is that the Respondent was "insisting" in face to face meetings at the Respondent's office in relation to formal attendance reviews. We agree with Mr Grant for the Respondent that the evidence does not support a conclusion that, to the extent that such a provision criterion or practice existed, it placed the Claimant at a substantial disadvantage. The Claimant's own evidence was that she would have attended occupational health assessments on both 22 January 2010 and 2 February 2010 had other circumstances not intervened which prevented those meetings from proceeding. The Claimant did in fact attend occupational health meetings on 26 March and 28 July 2010 and attended a job interview in Camden in April or May 2010. We do not accept that any impairment of the Claimant's had the impact on the Claimant's ability to travel to the degree now suggested by the Claimant. For this reason we would have concluded that the complaint that the Respondent failed in its duty to make reasonable adjustments as regards face to face meetings was not well founded"

The ET dealt with the four harassment complaints in paragraphs 80 to 82 of the judgment. It is not necessary to say more about those.

32. The Appellant gave notice of appeal to the EAT on 8 May 2012. Decisions were made under rule 3(7) and 3(8) of the EAT Rules 1993 ("the Rules"), on 29 June and 13 September 2012 respectively, that the proposed appeal showed no reasonable grounds for appealing. On 9 October 2012 the Appellant applied under rule 3(10) of the Rules for a hearing before a judge.
33. The rule 3(10) hearing took place before Judge McMullen QC on 3 April 2013. Judge McMullen found that there were reasonable prospects in the Appellant's contention that the ET had erred in its decision that the Appellant was not disabled. On the individual points of discrimination upon which he had been addressed the judge held as follows:

"10……The Tribunal rejected the Claimant's claims throughout but I consider there are reasonable prospects in respect of two. If the Claimant succeeds on her contention that she was disabled there are two practical illustrations which are available to her. The first appears in paragraph 89 of the Judgment which is based upon, for this purpose, the assumption that the Claimant was disabled. Yet, inconsistently, the Tribunal fails to discount the disability when looking at the procedures and their application within the Respondent authority. So this matter will go forward.

11. Secondly, and this is contained within the narrative part of the Judgment, from paragraphs 40 to 48 (Emphasis added) onwards there is an account of the Claimant's failure to attend on 16 February 2010 for at that time she had as depressive incident. It is reasonably arguable that the Tribunal took against the Claimant on this point and illogically found that because the Claimant could attend a month of so later with her husband she could have attended on 16 February. That too is a matter which may be properly ventilated a full hearing."

The judge found that the proposed challenge to the rejection of the unfair dismissal claim was "unarguable".

34. The formal order following the rule 3(10) hearing in its material part said this:

"The appeal be set down for a full hearing on the finding that the [Appellant] was not disabled and on the two complaints cited in paras 40 and 89 of the [EAT] Judgment. All other grounds are dismissed…"

35. It will be noted that the order referred merely to paragraph 40, whereas Judge McMullen in his judgment had referred to paragraphs 40 to 48, covering a longer period of time and two attendance review meetings from which the Appellant had been absent. Paragraph 40 contained simply a short statement that the attendance review meeting had been re-scheduled for 16 February 2010.
36. The Appellant applied to this court for permission to appeal against the interim order made by Judge McMullen. Permission was refused initially by Sir Richard Buxton on the papers and finally (after an oral hearing) by McFarlane LJ on 9 October 2013.
37. The substantive appeal, that Judge McMullen had directed, came before the EAT (presided over by Judge Clark) on 10 October 2013 and was dismissed. The judgment recites the EAT's view that, based on equivocal medical evidence and the sceptical view that the ET had formed of the Appellant's evidence, the ET had been entitled to reach the conclusion that the Appellant did not experience a substantial and long-tern adverse effect on her ability to carry out normal day to day activities. However, the EAT stated that, although the ET had been addressed on the "deduced effects" of the Appellant's condition, the ET had not dealt with the point in their reasons and that Mr Grant (then appearing for the Respondent, as he did before us) had accepted that the finding that the Appellant was not disabled could not stand in these circumstances. Nonetheless, as the EAT said, that matter would only require reconsideration at a new ET hearing, if the original findings based on the alternative premise that the Appellant was disabled were also unsustainable on appeal. The EAT then considered the two points identified by Judge McMullen in paragraphs 10 and 11 of his judgment (quoted above).
38. On the first point, the EAT held that the enquiry went nowhere because the written warning and the finding at paragraph 89 of the ET's judgment related only to the unfair dismissal claim which was no longer live. It held that the relevant passage of the ET judgment was irrelevant to the claims under the DDA 1995: see paragraph 6 of the judgment.
39. On the second point, the EAT said this:

"7. The second issue relates to the Tribunal's findings at paragraphs 40-48 (Emphasis added) of their Reasons, referred to at paragraph 11 of the rule 3(10) Judgment, the Claimant's failure to attend that meeting. Mr Mefful submits that it was due to illness on the day. However, Mr Grant points to the Tribunal's findings of fact at paragraph 79 of their Reasons. The Tribunal are there dealing with the reasonable adjustment question identified under the heading "issues" at paragraph 2(i) of the Reasons. The relevant proposed adjustment was that instead of attending meetings in person they should be dealt with by means of telephone or home visits. The material question is whether by requiring her to attend meetings in person, the Respondent was placing the Claimant at a substantial disadvantage when compared to an able-bodied comparator. At paragraph 79 the Tribunal answered that question in the negative, for the reasons they have given. Mr Mefful takes the point that in her witness statement the Claimant said that she needed to be accompanied by a family member before leaving the house and none was available on that day. No doubt the Tribunal considered that evidence; however, they concluded that since the Claimant was able to attend occupational health appointments on 22 January and 7 February 2010 and appointments on 26 March and 28 July, together with a job interview with the London Borough of Camden in either April or May 2010, she was able to attend the 16 February meeting and thus on the evidence the requirement to attend meetings did not place the Claimant at a substantial disadvantage. In our judgment, that was a finding that the Tribunal was entitled to reach."

40. It is, of course, apparent that in the full passage between paragraphs 40 and 48 of its judgment the ET was dealing with non-attendance by the Appellant at meetings on both 16 and 24 February 2010. The decision to issue a formal warning to the Appellant was made at the second of these two meetings.
41. The EAT dismissed the appeal and directed that any application for permission to appeal should be made to this court within 21 days of the seal date of its order, which was 25 October 2013. By Appellant's Notice of 15 November 2013 the Appellant made that application. It was refused by Sir Stephen Sedley, by order of 20 January 2014, who said this:

"The decisive issue before the EAT was not whether you were disabled but whether, assuming you were disabled, you had been placed at a disadvantage by the requirement of a face to face meeting. For reasons spelt out in para 79 of their determination the ET decided you were not. I know you disagree, but this is a finding of fact which bound the EAT and binds this court. It means any appeal is bound to fail." (Emphasis in the original)

The application was renewed at an oral hearing before Rimer LJ on 8 May 2014 and was granted. Although the application by the Appellant was for permission to bring a second appeal, neither Sir Stephen nor Rimer LJ dealt with the matter on the basis of whether the appeal raised an important point of principle or practice or whether there was some other compelling reason why a second appeal should be heard, but decided the matter entirely on the first appeal test of whether the proposed appeal presented real prospects of success.

42. The grounds of appeal, on which permission was given, are:

"1. The EAT determined that the written warning detriment was not brought under a disability discrimination compliant. However, as argued before the EAR, paragraph iii of the Appellant's ET1 (see para 90) clearly shows that the written warning detriment was raised as a disability discrimination complaint.

2. It is perverse, illogical and a material error of fact to find that the Appellant could have attended the formal disciplinary meeting of 16^th of February 2010 (or thereabout) just because she had indicated in the past that she would be willing to attend that meeting; or because she was able to attend a medical appointment 5 weeks afterwards. This determination was further corrupted by the Tribunal's error of law on the issues of deduced effect (as found by the EAT)." (Emphasis in the original).

It appears that the reference in ground 1 was to a passage in the Appellant's second ET Claim Form of 28 October 2010 (page 181 of the Appeal Bundle in this court) to this effect:

"The Claimant seeks compensation and declarations that…

III The Respondent, in breach of DDA s 4(2)(d), subjected her to a detriment, (and thus harassment) by issuing her a written warning…".

43. In granting permission to appeal Rimer LJ considered it arguable that neither the ET nor the EAT realised that the Appellant was putting her case on the basis that the issue of a written warning amounted to a detriment within the meaning of the DDA as well as part of the unfair discrimination claim and had failed to deal with it accordingly. The learned Lord Justice expressed himself as less confident in the merits of ground 2. However, he granted permission to advance that ground also in view of the permission granted on ground 1.

Discussion

44. The point raised in ground 1 was amplified before us in Mr Mefful's oral submissions for the Appellant at the hearing before this court. It seems to me, however, that there are two procedural flaws and one substantive flaw in the argument in support of this ground.
45. The procedural flaws are these.
46. First, it is clear that at the opening of the hearing before the ET, the Tribunal raised carefully the question of what the true issues arising out of the Appellant's complaints were and what issues remained for the ET's determination. Those issues were set out in paragraph 2 of the ET's judgment (quoted above) from which it is clear that there was no question of the written warning of 16 March 2010 being relied upon as a complaint of "detriment" under DDA 1995. That matter arose only as an aspect of the constructive unfair dismissal allegation. The ET proceeded to deal with the claims on that basis. Thus, there was no surviving claim of "detriment" under the Act to be adjudicated upon by the ET.
47. Secondly, no complaint was made in the notice of appeal to the EAT that the ET had failed to deal with a detriment claim that had been raised before it, although, as Mr Grant pointed out to us, the Appellant in the summary of her grounds of appeal (in paragraph V) complained that the ET had failed to adjudicate on a quite separate matter, namely her "complaint of injury to health/personal injury as well as the [Appellant's] complaint of breach of duty of care". Further, the issue does not appear to have been raised in either of the written applications made under rule 3(8) or 3(10).
48. Although Judge McMullen raises the issue of discount of disability in paragraph 10 of his judgment and, as Mr Mefful pointed out, there is a single reference to the issue of the formal warning as a "detriment" in paragraph 32 of the Appellant's skeleton argument before the EAT, the question of the issue of the warning was not one of the issues that had been identified as falling for determination in the ET in relation to her discrimination claim and had only been relevant there to the unfair dismissal claim.
49. In my judgment, the ET could not be faulted for dealing with the matter in accordance with the list of issues that was settled, apparently without further dispute, at the beginning of the hearing, and the EAT cannot be faulted for not dealing with a matter that was not raised in either the Notice of Appeal to it, nor in the Notices of Application under rule 3(8) and (10).
50. In my view, the EAT dealt with this matter correctly in paragraph 6 of its judgment.
51. Turning to what I perceive to be the substantive flaw in the Appellant's ground 1, I see it as this. The ET considered the process of the Appellant's failure to attend the review meetings on 16 and 24 February 2010 (which led to the issue of the formal warning). In dealing with the "reasonable adjustments" claim it made the factual findings set out in paragraph 79 which I have quoted above. Those findings would also have been determinative of any complaint made by the Appellant of the Respondent subjecting her to a "detriment" by the issue of the same warning letter. As Mr Grant puts it in his skeleton argument before us, it is inconceivable that the ET would have upheld a detriment claim having dismissed the reasonable adjustments claim for those factual reasons. Both complaints would have turned on the same facts. The warning letter was issued as a result of the Appellant failing to attend a review interview to which (as the ET found) the Respondent was entitled to summon her, at which she was to be asked to explain and justify her sickness record. Absent an explanation by her at that meeting to say that she was suffering from an incapacity which meant that the Respondent's relevant sickness policy ought not to be applied in her case, the Respondent cannot be criticised for issuing the formal warning it did.
52. It is to be noted, as I have sought to emphasise, that the ET's findings in this regard relate to the period spanning both meetings and not just the appointment on 16 February 2010 dealt with in paragraph 40 of its findings.
53. The EAT held in paragraph 7 of its judgment that the ET had been entitled to make the factual findings set out in paragraph 79. Absent irrationality or perversity such findings could not be challenged in the EAT or in this court.
54. This brings me to the Appellant's ground 2 which, as stated, contends that the ET's findings in this regard were "perverse, illogical and a material error". In my judgment, the Appellant's materials go nowhere near making out this ground of appeal. The ET clearly had material before it to assess whether, even given disability, the Appellant was or was not capable of attending the meetings sought by the Respondent in February 2010. It had the medical evidence and heard from the Appellant herself on the point. It was entitled to find, as it did, that any impairment did not so impact on the Appellant's ability to travel to the extent that she suggested. The ET was entitled to take into account, in making its assessment of this, her behaviour as a whole in and around the relevant period and not just on the precise day or days upon which the meetings had been fixed.

Conclusion

55. For these reasons I would dismiss the appeal.

Lord Justice Sales:

56. I agree.

Lady Justice Arden:

57. I also agree.