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 McMULLEN QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th May 2014

1. LORD JUSTICE LAWS: This is an appeal with permission granted by Christopher Clarke LJ on 19th December 2013 against a decision of the Employment Appeal Tribunal presided over by His Honour Judge McMullen QC of 2nd July 2013. By that decision the EAT set aside the finding of the Employment Tribunal (the "ET") to the effect that the respondent employer had discriminated against the appellant in breach of section 4A of the Disability Discrimination Act 1995 ("DDA") by failing to make reasonable adjustments during her employment in the latter part of 2007. The ET's judgment, to which I will refer as "the liability judgment", was sent to the parties on 11th September 2012. The EAT also set aside the ET's subsequent remedies judgment by which it made an award of £216,108.92 to the appellant.
2. The respondents are a sixth form college with over 350 staff and some 3,000 students. The appellant joined the college on 2nd July 2007, when she was about 25, as an A-level tutor. Her working week was some 36 hours: ten hours tutoring, 16 hours developing the college's tutorial programme, and ten hours preparation, marking and administration. She was required to attend at the college premises at 8.45 am during term, when the students were there, and at 9 am at other times. There was a procedure to be followed if an employee was going to be late: that was to telephone the college to give warning of the fact.
3. The appellant's employment did not survive the probationary period. She was dismissed on 20th December 2007, with effect as I understand it from 28th February 2008, but was not required to work out her notice period.
4. The appellant had suffered from a depressive illness since 2005 and it was at length conceded that she was disabled by reason of mental impairment. Section 3A(2) of the DDA 1995 provides:

"For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person."

Section 4A provides in part:

"(1) Where -

(a) a provision, criterion or practice applied by or on behalf of an employer ... places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect...

(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know ...

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)."

5. Then section 18B of the Act provides in Part as follows:

"(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to -

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the nature of his financial and other resources ...

(f) the nature of his activities and the size of his undertaking ..."

6. The appellant's case was that because of her disability she was unable to get to work on time with any regularity. Because of her timekeeping record, disciplinary proceedings were instituted in August 2007. A number of meetings followed. At length, on 20th December 2007 the respondents wrote to the appellant dismissing her on the basis that they could not continue to accommodate her continual lateness and she had constantly failed to comply with their reporting procedures. These reasons reflected the two "PCP" (that is, provision, criterion or practice, the language of section 4A(1)) which the appellant says should have been the subject of reasonable adjustments under sections 4A and 18B, namely the requirement to attend work regularly at 8.45 and the requirement to telephone if she was going to be late or absent.
7. It is convenient at this stage just to set out the following passages, which have been relied on in the appellant's submissions in writing, from a joint medical report prepared by Dr Jeffrey Roberts and dated 27th July 2010. It was put before the ET but not the EAT:

"50. The impairments identified have a significant adverse effect on Ms Sander's ability to carry out normal day to day activities, making for instance the generation of sufficient volition to get up in the morning and propel herself to work on time a virtually impossible task ...

52. In my opinion, Ms Sanders has been working under a substantial handicap as described in the main body of my report throughout the past five years ...

55. In my opinion, this episode of illness can be classified under an ICD coding of F32.11. A feature of Ms Sanders' condition has been a significant psychomotor retardation, worse in the morning, and a likely cause of her inability to get up in time to attend her employment."

8. The learning on the subject of reasonable adjustments and section 4A of the DDA was collected by Langstaff J in RBS v Ashton [2011] ICR 632 in the EAT. The judgment cites the earlier EAT decision of Environment Agency v Rowan [2008] ICR 218. At paragraphs 15 to 16 of Ashton, Langstaff J said this:

"16. The fact that this requires in particular the identification of the provision, criterion or practice concerned and the precise nature of the disadvantage which it creates by comparison with those who are non-disabled, was set out clearly by this Tribunal in Environment Agency v Rowan [2008] ICR 218 at paragraph 27. That guidance is worth restating:

'[…] an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with Section 4A duty must identify:

(a) the provision, criterion or practice applied by or on behalf of an employer, or

(b) the physical feature of premises occupied by the employer ...

(c) the identity of non-disabled comparators (where appropriate) and

(d) the nature and extent of the substantial disadvantage suffered by the Claimant.'

Later in the same paragraph the Tribunal continues to say:

'in our opinion an Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments under Sections 3A(2) and 4A(1) without going through that process. Unless the Employment Tribunal has identified the four matters we have set out above …'

We interpose to say that of course it is not in every case that all four matters need to be identified but certainly what must be identified is (a) and (d)."

Then after citing further authority, Langstaff J concluded at paragraph 24 as follows:

"Thus, so far as reasonable adjustment is concerned, the focus of the Tribunal is, and both advocates before us agree, an objective one. The focus is upon the practical result of the measures which can be taken. It is not - and it is an error - for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer's thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reasons."

9. I apprehend that this is the first case in which this jurisprudence has fallen for consideration in this court, and I would simply say that the reasoning set out in Rowan and Ashton seems to me, with respect, to be entirely correct.
10. The essence of the respondents' case, and of the conclusions of the EAT below, is that the ET in this case failed to follow the stepped approach commended in Rowan and failed also to make the objective assessments required in particular by paragraph 24 of Ashton.
11. In its decision, the ET set out at some length the circumstances of the appellant's employment and its termination: see paragraphs 7 to 40. It then proceeded to consider a series of adjustments which had been advanced by the appellant. These included flexible working arrangements, doing some work at home, sharing the appellant's work with another employee or employees, treating the appellant's bad timekeeping as disability absence, changing the reporting procedure to allow it to be done by e-mail or text and allowing absence for rehabilitation assessment or treatment. The ET found (paragraph 53) that this last suggestion would not count as a reasonable adjustment, but it accepted that any or all of the others might constitute reasonable adjustments, giving short reasons in each case. Its overall conclusion on the measures proposed is set out at paragraph 56 as follows:

"The Tribunal rejects the [Respondents'] submission that none of the suggestions put forward by the Claimant and explored before the Tribunal are reasonable adjustments for the reasons set out in this decision, some of those matters, or a combination of one or more, namely, changing the Claimant's hours and permitting flexible working, working from home, not on its own but in connection, perhaps with flexible working and/or sharing or giving some of the Claimant's work to someone else. It would have been good practice to have provided extra support or supervision as we have stated which would have gone some way to ameliorate the effects of the Claimant's depression which could have enabled the claimant to have better timekeeping and attendance. A reasonable adjustment so far as reporting is concerned would have been to put in place an arrangement whereby the Claimant could text and/or e-mail a specific individual in the event that she was going to be late and also providing that she did not have to give a verbal explanation as to the reason. All of these matters, to some extent, and if looked at as a whole, do amount to reasonable adjustments which the Respondents had a duty to make to alleviate the disadvantage caused by the Claimant's depression."

There is then what the respondents would describe as a telling postscript:

"58. We found that the Respondents dealt with the Claimant with a particularly closed mind and they have considered the question of reasonable adjustments for these proceedings with a similarly closed mind. The duty to make a reasonable adjustment expects an employer to view the employee's position in a positive and creative way and with a purposive approach to enable reasonable adjustments to be implemented. The Respondents' approach was negative."

12. The stepped approach commended in Rowan and endorsed in Ashton requires, among other things, that the ET identify the nature and extent of the substantial disadvantage to which the disabled person is placed by reason of the PCP in question. Unless that is done, the ET cannot make proper findings as to whether there has been a failure to make reasonable adjustments.
13. Here the respondents say that the ET failed to undertake any proper analysis of the nature and extent, in particular the extent, of the substantial disadvantage in question; and they made no finding as to the state of the respondent employer's knowledge specifically concerning the nature and extent of the substantial disadvantage. They failed also, it is said, in any event to make a proper assessment of the reasonableness of the proposed adjustment.
14. In my judgment these three aspects of the case -- nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustments -- necessarily run together. An employer cannot, as it seems to me, make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and the extent of the substantial disadvantage imposed upon the employee by the PCP. Thus an adjustment to a working practice can only be categorised as reasonable or unreasonable in the light of a clear understanding as to the nature and extent of the disadvantage. Implicit in this is the proposition, perhaps obvious, that an adjustment will only be reasonable if it is, so to speak, tailored to the disadvantage in question; and the extent of the disadvantage is important since an adjustment which is either excessive or inadequate will not be reasonable.
15. In this case I have concluded that the ET's judgment betrays no enquiry into the extent of the difficulties, the substantial disadvantage, to which the requirements of attendance at 8.45 in the morning and of phoning in to warn of late arrival exposed the appellant, nor is there any distinct finding as to the respondents' knowledge of their extent. It is in effect simply accepted that the various proposals advanced on the appellant's behalf could have been implemented, and so it is concluded they should have been. There is therefore no reasoning to support the conclusion that in light of the respondents' knowledge, this or that adjustment would have been neither excessive nor inadequate but would have been apt to deal with the nature and extent of the appellant's difficulties, and for that reason should have been adopted. These shortcomings are, I fear, compounded by the terms of paragraph 58 of the ET decision which I have read. Unless we are to conclude, which to my mind is clearly impossible, that the observations there to be found were not intended to have any relevance to the basis of decision, it seems to me inescapable that the ET have fallen into the very error which paragraph 24 of Ashton insists is to be avoided: "it is irrelevant to consider the employer's thought processes or other processes leading to the making or failure to make a reasonable adjustment".
16. The appellant, through Mr Gill of counsel, for whose assistance we are very grateful, seeks to support the ET's decision. He submits that the criticisms advanced by the respondents and the EAT in the end have no force. He says that the evidence as to substantial disadvantage was not disputed (see paragraph 45 of his skeleton), that the nature of the substantial disadvantage was self-evident (paragraph 46), that the ET's conclusions as to the reasonableness of the proposed adjustments disclose an "implicit finding" as to substantial disadvantage, and that that appears inter alia from paragraph 56 of the decision which I have read (see paragraphs 49 and 50 of his skeleton). It is also said that there is "an implicit finding" as to the state of the respondents' knowledge (paragraph 58). As to reasonableness, Mr Gill does not in his skeleton address in terms paragraph 58 of the ET's decision.
17. This morning Mr Gill has submitted that it was clear to the ET what was being contended for. He submitted in particular that the appellant had explained at the disciplinary meeting on 17th December 2009 her difficulties in relation to the second PCP, the requirement to telephone in. He referred to other passages in the evidence, including the appellant's own witness statement. He submits that the ET judgment includes, however implicitly, findings as to the state of the respondents' knowledge concerning the appellant's difficulties or the lack of such knowledge.
18. Now, it is of course right that it was common ground that the appellant suffered from depression and was disabled within the meaning of the DDA, and as Mr Gill submitted to us, the ET had before it descriptions by the appellant herself of her difficulties. At paragraph 42 of the decision (one of the passages relied on by Mr Gill as disclosing a finding of knowledge on the respondents' part) the ET said this:

"The Respondents should have been aware of the Claimant's disability from the latest the 6 September 2007, if not 21 August 2007, when the Claimant handed in her letter of that date to Ms Hussain-Kazmi."

But the letter of 21st August 2007, and of course I mean no criticism, gives very little detail. It is set out by the ET at paragraph 17. It includes this:

"I know that since then I have arrived late and I have known that this is a problem. I [have] not intended to be late and it is not that I do not wish to come to work. I am in fact very enthusiastic about the post to which I have been appointed. Where I have arrived late I have stayed late in order to work the correct number of hours.

I would like to inform my employer that I have depression. I have this information on the health questionnaire as mild depression which at the time is what I considered it to be. I have not previously disclosed to an employer or sought support as I felt that it was something that I was able to cope with. It is also something that I have found very difficult to talk about. I now feel it to be more serious and recognise that it affects my ability to carry out normal day-to-day activities. I feel that despite this I still have a great deal to offer the College in that I am very able to do the job to which I have been appointed. I would ask for the College's support in doing this."

19. In this dignified letter there is, however, arguably nothing as to the extent or gravity of the appellant's difficulties in getting to work on time: facts which might inform the question what a reasonable adjustment might be. Moreover, there is very little more in a GP's letter of 4th October 2007, which has this:

"I am of the opinion that Ms Sanders is suffering from a depressive disorder characterised by low mood, low energy levels and sleep disturbance. This is likely to be contributing to her lateness. I have started her on a course of treatment which, for most people, leads to improvement within 3-6 months. I am not in a position at this point to define her condition as a disability in the sense of physical or mental impairment which has a substantial and long term adverse effect on her ability to carry out normal day-to-day activities. No doubt her condition will impact on her normal day-to-day activities but should improve with intervention."

20. In short, it must be arguable that the extent of the appellant's disadvantage was far from self-evident. That is something that may have to be gone into further in due course, but it seems to me it means that cases such as Jennings [2013] Eq LR 326 do not assist Mr Gill.
21. There was of course much more in the joint medical report of 27th July 2010 which I have cited, but as far as I can see that is nowhere referred to in the liability judgment, and of course given its date comes well after the period in which the relevant events took place.
22. In all the circumstances, notwithstanding Mr Gill's careful and tenacious efforts on behalf of the appellant, I am not persuaded that the conclusions I expressed earlier as to the deficiencies in the ET decision are in the least undermined. Moreover, this is not a case where we should ask the ET for further reasons. They have failed to grapple with a central question: the fit between any proposed adjustment and the extent of the appellant's disadvantage.
23. In the circumstances I would dismiss the appeal for the reasons I have given, essentially to the effect, in agreement with the EAT, that the liability judgment is flawed for want of proper reasoning in accordance with Rowan and Ashton.
24. There are three postscripts.
25. First, the respondents have put in a respondent's notice seeking to criticise the remedies judgment. If my Lords agree with my conclusions on the appeal, the respondent's notice is moot. I merely indicate that for my part I can see no basis on which the remedies judgment, which was at no stage appealed to the EAT, could properly be the subject of any argument in this appeal. Had Ms Sanders' appeal been allowed and both the ET's judgment accordingly restored, the respondents' recourse would presumably have been to seek leave to appeal the remedies judgment to the EAT out of time.
26. Secondly, it is to be noted that the appellant was debarred from taking part in the respondents' appeal to the EAT for breach of orders or directions which the EAT had earlier made. As I have said, the joint medical report of 27th July 2010 was not placed before the EAT by the respondents. It is true that in refusing a review application by the appellant, Judge McMullen expressly acquitted the respondents of having made "misleading submissions", and I by no means accuse them of having done so. It is true also that on my reasoning on the appeal the terms of the joint medical report can have made no difference to the result. But I think it clear that it should have been put before the EAT.
27. Thirdly, there was an application for a protective costs order. That was advanced by Mr Gill at our invitation at the beginning of the hearing this morning. The application was first made on 28th April 2014. It is said that the appeal is from a no costs jurisdiction tribunal and the appellant has no funds. This application is far too late. As to its substance, there is no question here of the appellant being denied access to justice. Mr Gill is here on her behalf and the court is very grateful to him. There is no case for a PCO.
28. In the result, if my Lords agree, it seems plain to me that the case will have to be remitted to the different constitution of the ET. It is in many ways a lamentable result: the case is an old one; this lady, apart from the effects of her disability on her timekeeping, has it seems been an admirable employee of the college; and it is a great pity that a further hearing must take place.
29. LORD JUSTICE TOMLINSON: I agree.
30. LORD JUSTICE BRIGGS: I also agree.