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Archibald v. Fife Council [2003] ScotCS 308 (09 December 2003)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION XA12/03 |
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Lord Hamilton Lord Macfadyen Lord McCluskey
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OPINION OF LORD HAMILTON in Appeal to the Court of Session under section 37 of The Employment Tribunals Act 1996 by SUSAN ARCHIBALD Appellant; against FIFE COUNCIL Respondents:
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Act: O'Brien, QC, D O'Carroll; Drummond Miller, W.S.
Act: O'Neill, QC, Sharpe; P Robertson (for Fife Council)
9 December 2003
Background
[1] The appellant was employed by the respondents as a road sweeper Grade 1 throughout the continuous period from May 1997 to 12 March 2001. She was engaged initially on a six-month seasonal contract but thereafter on a full-time basis as one of some 150 manual workers engaged in refuse collection, the cleaning of public toilets, road sweeping and similar tasks. In April 1999 the appellant had a spinal anaesthetic for a minor surgical procedure which resulted in a very rare complication of severe pain over her heels; as a result she was unable to walk. This medical misfortune rendered her unfit to continue her work as a road sweeper. [2] In accordance with their Attendance Management Guidelines the respondents sought and obtained medical advice as to the prospects of the appellant being fit to return to work. Steps were also taken to explore whether suitable alternative employment might be offered to her by them, including in other departments within their organisation. With the assistance of information provided by officials of the respondents the appellant over a period of many months applied for over 100 alternative posts within the respondents' various departments. In none of these applications was she successful. Her principal difficulties during that period were that, initially being confined to a wheelchair and later requiring sticks to assist her mobility, she was unable to meet the physical demands of the posts applied for or the environmental constraints in which they were to be performed. In addition, as a road sweeper, she was on industrial Grade 1 and all the alternative posts for which she applied were posts on which the lowest grade (known as APT&C Grade 1) was, in terms of basic salary, marginally higher than industrial Grade 1. The result was that in terms of the respondents' redeployment policy the appellant invariably required to undertake competitive interviews. A further problem which she apparently faced was that, coming from an industrial background and attempting to obtain alternative work in an office environment, she received (or in any event perceived that she received) less favourable treatment at interview, notwithstanding that she had during her absence from work undertaken a number of computer and administration based courses in an attempt to equip herself with the appropriate skills to work in an office environment. [3] Meantime the respondents continued to seek and obtain information about the appellant's medical position and her fitness for work. By letter dated 10 July 2000 it was reported to them that she remained unfit for work as a road sweeper but that she was fit for work of a sedentary nature; the view was expressed that she was a disabled person within the meaning of the Disability Discrimination Act 1995. The search for suitable alternative employment continued. At one of several meetings concerned with furthering that search, the appellant's Trade Union representative expressed the view that the appellant ought not to have to go through competitive interviews. This view, it seems, was not shared by the respondents. Ultimately at a meeting held on 12 March 2001 the respondents' responsible officer expressed the view that, on the basis of medical advice obtained, the appellant would be unable to return to work as a road sweeper in the foreseeable future, that the respondents' redeployment procedure had been exhausted and that, having regard to the length of the appellant's absence and the needs of the service, he now had little alternative other than to dismiss her on the grounds of capability. By letter dated 19 March 2001 that position was confirmed and the appellant advised that her employment with the respondents would terminate with effect from 12 March 2001. She was also advised that she had a right of appeal against that decision. She exercised that right but the appellate body (a sub-committee of local councillors) refused her appeal. She subsequently obtained, on a part-time basis, other posts with the respondents.Proceedings before the employment tribunal
[4] The appellant thereafter presented to an employment tribunal a complaint in which she maintained (1) that she had been unfairly dismissed by the respondents and (2) that, as a disabled person within the meaning of the Disability Discrimination Act 1995, she had been discriminated against by them. Her contention that she had been unfairly dismissed was rejected by the employment tribunal; that aspect of her complaint was not pursued further and nothing more need be said about it. Her contention that she had been unlawfully discriminated against by the respondents was stated, in the relative complaint form, as being "in the way that they sought redeployment opportunities for me". That was particularised before the employment tribunal as a complaint that she should not have been in competition for alternative employment with the respondents if she was able to show that she was able to perform the duties and responsibilities of the alternative post in question. [5] Before the employment tribunal the respondents conceded that the appellant was a disabled person within the meaning of Section 1 of the 1995 Act, in respect that she had a physical impairment which made it impossible for her to carry out her work as a road sweeper. The appellant did not contend that she had been unlawfully discriminated against within the meaning of section 4(2) (as read with section 5(1)) of the Act by the respondents dismissing her; although she had been treated, for a reason relating to her disability, less favourably than others who were not so disabled, it was not disputed that that treatment was in all the circumstances justified. Her contention was that the discrimination which had occurred fell within that described in section 5(2), namely, that the respondents had failed to comply with a section 6 duty imposed upon them in relation to the appellant and they could not show that their failure to comply with that duty was justified. The employment tribunal, having considered various authorities (including Morse v Wiltshire County Council [1998] IRLR 352) and reviewed the evidence before them, concluded in effect that the respondents had not failed to comply with any section 6 duty imposed on them and, in any event, that any such failure was justified. They said -"As we have said, it was the [appellant's] principal complaint in relation to her case under the 1995 Act that the respondents had failed to make reasonable adjustments for her in terms of section 6 of that Act. That, as Morse says, requires the tribunal to consider whether the respondents could reasonably have taken any of the steps set out in paragraphs (a) to (l) of section 6(3) of the 1995 Act and the only step which was argued here was that set out in paragraph (c) of section 6(3) namely 'transferring him to fill an existing vacancy ...'".
The employment tribunal then summarised the appellant's attempts to obtain alternative employment and continued:-
"During the course of her answers to the tribunal, the [appellant] quite fairly indicated that when she failed to obtain any of the sedentary posts for which she applied, she did not think that it was anything to do with her disability but rather that 'they' did not look past the fact that she was a road sweeper. As we understood the argument made on the [appellant's] part it was to the effect that as a disabled person, she should not have been required to undertake competitive interviews but section 6(7) of the 1995 Act provides, reading short, that:
'... nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others.'
and, as we have said, the respondents' policy was that if applying for a job at a higher grade than the person's existing grade, then competitive interviews were required. Since we were not addressed, on behalf of the [appellant] on any of the other steps set out in section 6(3)(a) to (l), we do not intend to consider them except simply to observe that on the facts before us, there were no other steps, with the exception of the possibility of transferring the [appellant] into another post, which the respondents could reasonably have made in relation to the [appellant].
Finally, if, contrary to the views we have just expressed, these respondents did indeed fail to comply with the section 6 duty, we then require to consider whether the respondents have established that their failure is justified which, on the basis of what Morse says, means deciding whether it has been shown that the reason for the failure to comply is both material to the circumstances of the particular case and substantial in accordance with section 5(2) and (4). We have set out earlier the observations of the Employment Appeal Tribunal in that regard in [various authorities] and had we required to reach this stage, which we do not, we would have been satisfied that the respondents' failure to take the step of transferring the [appellant] to fill an existing vacancy was justified on the basis of the policy of competition to which we have earlier referred. In all these circumstances, we do not consider that the respondents have unlawfully discriminated against the [appellant] by reason of her disability and, since we have already held that the [appellant's] complaint of unfair dismissal fails, this whole application falls to be dismissed".
Proceedings before the Employment Appeal Tribunal
[6] The appellant appealed to the Employment Appeal Tribunal. Before them an issue arose as to whether on the facts any section 6 duty was imposed on the respondents - an issue not expressly addressed by the employment tribunal. The Employment Appeal Tribunal (chaired by Lord Johnston) decided that in the circumstances of the case no such duty was imposed. They said:-"9. In our opinion, this is a three-stage process focussed by [subsections (1) and (2) of section 6]. First of all, there must be a disabled person. Secondly, he or she must be at a substantial disadvantage in comparison with persons who are not disabled and this is in marked contrast to the test applied to section 5(1) which we identified. Thirdly, and most importantly, the disadvantage in comparison with the other persons must arise from 'arrangements' made by or on behalf of the employer which are defined in subsection (2). Looking at that definition quite generally, we are clearly of the view that this points to, either a formal arrangement or informal working practice and goes far beyond the mere fact that a person in a certain job has become disabled. That is not an 'arrangement' made by the employer, although it of course bases the initial establishment or otherwise of disablement in the workplace, the first of the three stages we have set out and not in dispute in the present case.
10. Since this case has been focussed before us purely on the issues of section 6, we are entirely satisfied that the Tribunal reached a decision it was entitled to reach on that basis. The policy of the Council was clearly established and applied to everyone. That is the 'arrangement' in terms of section 6 and it did not place the appellant at a substantial disadvantage per se because it applied to everyone. It follows that the question of taking reasonable steps of which illustrations are given in subsection (3) of section 6 does not arise in this case on this basis. It accordingly follows that there was no requirement in this context for the employer to depart from their policy of requiring competitive interviews in respect of applications for upgraded jobs.
11. In any event, such a policy, even if discriminatory, can be justified upon the basis that it is designed to obtain the best persons for the relevant job. At one point {counsel for the appellant] seemed to suggest that, in any event, the employer should have removed the appellant from the application of the policy on grounds of disablement and that in itself was an adjustment that easily could have been made. While we recognise that they could have offered her another job without requiring competitive interview, we do not consider that they were compelled so to do because the obligation to make an adjustment had not been triggered for the reasons we have given. Finally, in this respect, we consider that the result of [counsel for the appellant's] argument would be to place disabled persons in a stronger or more favourable position than those who are able-bodied because he accepted that, in essence, the appellant had a right to redeployment because of her disablement and nothing more. That, in our opinion, is precisely what subsection (7) of the section is designed to avoid, the purpose of the legislation being to achieve a level playing field as between disabled and able-bodied persons. The Tribunal correctly identified this aspect of the matter".
The Employment Appeal Tribunal then expressed some concern about whether, in the conduct of the interviews which the appellant had undergone, she might have been less favourably treated under section 5(1) than could be justified but observed that, the complaint having been presented as it had, they were precluded from doing any more than suggesting that an alternative line might have been adopted.
The statutory provisions
[7] The appellant has now appealed to this Court. We were favoured with careful and thorough submissions on the interpretation and application of the statute. Before summarising these submissions, it is convenient to set out the relevant statutory provisions. [8] Section 1(1) provides that, subject to the provisions of Schedule 1 (which are immaterial for present purposes) a person has a disability for the purposes of the Act "if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities". Section 1(2) provides that in the Act "disabled person" means a person who has a disability as so defined. It is not disputed that the appellant was at the material time a disabled person. [9] Part II of the Act makes provision in respect of discrimination in the area of employment. Section 4 concerns discrimination by employers against applicants (for employment) and employees. Section 4(1) provides:-"It is unlawful for an employer to discriminate against a disabled person -
(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment;
(b) in the terms on which he offers that person employment; or
(c) by refusing to offer, or deliberately not offering, him employment".
Section 4(2) provides:-
"It is unlawful for an employer to discriminate against a disabled person whom he employs -
(a) in the terms of employment which he affords him;
(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;
(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or
(d) by dismissing him, or subjecting him to any other detriment".
"Benefits" includes facilities and services (section 4(4)).
Section 5 provides:-
"(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 purposes 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 purposes 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".
Subsections (6) and (7) provide for the making of regulations for the purposes of the section but none, we were informed, have been made.
[10] Section 6, in so far as material, provides:-"(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.
(4) 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).
(5) In this section, 'the disabled person concerned' means -
(a) in the case of arrangements for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;
(b) in any other case, a disabled person who is -
(i) an applicant for the employment concerned; or
(ii) an employee of the employer concerned.
...
(7) Subject to the provisions of this section, nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others.
...
(12) This section imposes duties only for the purpose of determining whether an employer has discriminated against a disabled person; ...".
Subsections (8), (9) and (10) make provision for the making of regulations for certain purposes but none, we were informed, have been made.
[11] Section 9(1) (also within Part II) renders void, inter alia, any term in a contract of employment or other agreement so far as it purports to "(b) exclude or limit the operation of any provision of this Part". [12] Section 53, in so far as material, provides:-"(1) The Secretary of State may issue codes of practice containing such practical guidance as he considers appropriate with a view to -
(a) eliminating discrimination in the field of employment against disabled persons and persons who have had a disability; or
(b) encouraging good practice in relation to the employment of disabled persons and persons who have had a disability.
...
(3) Without prejudice to subsection (1), a code may include practical guidance as to -
(a) the circumstances in which it would be reasonable, having regard in particular to the costs involved, for a person to be expected to make adjustments in favour of a disabled person or a person who has had a disability ...".
Subsection (5) renders a code admissible in any proceedings under the Act before, among other bodies, an employment tribunal. Subsection (6) provides:-
"If any provision of a code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question".
The submissions of parties
[15] Counsel for the appellant submitted that the Employment Appeal Tribunal had erred in law in holding that in the circumstances the respondents owed no section 6 duty to the appellant and that on that ground there had been no discrimination under section 5(2). It had also, it was submitted, erred in law in failing to recognise that the employment tribunal had erred in law in holding (i) that there had been no failure to comply with the section 6 duty and (ii) that such failure to comply was justified. The expression "arrangements" was not defined in the statute but it was plain that it had a wide meaning and, on reading subsection (2)(b) of section 6 with subsection (1), that it embraced a term or condition, including a contractual term or condition. The steps which an employer might have to take under section 6(1) included "transferring the employee to fill an existing vacancy" (section 6(3)(d)). That could include transferring him into employment with the same employer but under a new contract with different duties. So far as the present circumstances were concerned, the relevant "arrangements" under section 6(1)(a) were the arrangements, including the contractual terms and conditions, which applied to the appellant's employment at the time when she became disabled. At that point she was, by reason of the arrangements and in the context of her physical unfitness to continue her work as a road sweeper, placed at a substantial disadvantage with other road sweepers who were not disabled. She was physically not able to carry out the requirements of her job; her colleagues were so able. Accordingly, in the circumstances a duty was imposed on the respondents to take such steps as it was reasonable, in all the circumstances of the case, for them to have to take in order to prevent these arrangements having that effect. That duty required them to consider how the existing arrangements might be altered to prevent that effect. One mode was by transferring the appellant to a job (such as a sedentary job) where her disability would not have that effect. The transfer was not itself the "arrangements"; the original job requirements were. It was plain that other steps (such as those in subsection (6)(3)(b), (d), (e) and (g)) would or might involve alterations in contractual terms. The Code of Practice confirmed that contractual arrangements might be affected. Reference was made in particular to paragraphs 4.16, 4.20-.27, 4.30 and 6.19-.21. As regards the relationship between the code and the decision-making process, reference was made to Ridout v T.C. Group [1998] IRLR 628, at para. 28, and Goodwin v Patent Office [1999] ICR 302, at p 307. The legislation should be given a purposive construction. Section 6(7) opened with the words "Subject to the provisions of this section ...". The provisions of the section might require an employer to treat a disabled person more favourably than he treated or would have treated others (Morse v Wiltshire County Council, at p. 1033). In Clark v Novacold Ltd [1999] ICR 951 the relationship between section 5(1) discrimination and section 5(2) discrimination had been considered, as had the difference in the definition of "discrimination" in the Act as against that concept as defined for the purposes of the Sex Discrimination Act 1975 and the Race Relations Act 1976. Reference was also made to Kent County Council v Mingo [2000] IRLR 90, at paras. 17 and 23, and to Post Office v Jones [2001] ICR 805, especially per Arden L.J. at paras. 36-9. The employment tribunal, which had implicitly recognised that there was a section 6 duty on the respondents, had failed to recognise that the reasonable steps which they might have to take included offering or affording the appellant alternative employment for which she was qualified but without requiring her to undergo competitive interviews for it. They had proceeded on the basis that the mere existence of the respondents' policy of competitive interviews was determinative without considering whether their section 6 duty might require them to consider departing from it in an appropriate case. That would involve the appellant as a disabled person being treated for the purposes of section 6 differently and more favourably than others who were not disabled but that was consistent with the legislative provisions. The employment tribunal had failed to notice the opening words of section 6(7). Any unreasonable result which in a particular case might arise from that approach would be avoided by applying the reasonableness requirement in section 6(1). Section 6(4) was not exhaustive. It was not contended that the appellant was entitled to the first vacant job in the respondents' employment for which she was qualified; she sought only an opportunity of being considered for any such job without being in competitive interview with others. The employment tribunal had not on the face of its reasons considered any of the factors listed in section 6(4), nor applied their minds to the test of reasonableness. They had also erred in law on the issue of justification. They had considered neither the materiality nor the substantiality of the reason for the failure to comply. They had addressed themselves solely to the existing policy rather than to the duty which in the circumstances required an adjustment to be made. In the proceedings before the Employment Appeal Tribunal the presiding judge had introduced the issue of whether there was any section 6 duty at all, an issue which had not been raised by the employment tribunal nor up to that point by either of the parties. The Employment Appeal Tribunal had in their judgment misrepresented the submissions made by the appellant's counsel in response to the presiding judge's introduction of that fresh issue. In particular, the Employment Appeal Tribunal had not correctly identified the appellant's contention as to what in the circumstances constituted the relevant arrangements. The Employment Appeal Tribunal had fallen into the same error as the employment tribunal by ignoring the opening words of section 6(7). It had also failed to address the errors of law into which the employment tribunal had fallen. The case should be remitted to the employment tribunal (as previously constituted) to reconsider its decision in light of the Court's opinion on the legal issues and against the existing evidence and any further evidence which might be led on the issues of performance of the section 6 duty and of justification. [16] Counsel for the respondents submitted that neither the Employment Appeal Tribunal nor the employment tribunal had erred in law. The Employment Appeal Tribunal had correctly found that, on the facts of this case, section 6 had no application, no duty under that section having arisen. The appellant's argument distorted the statute and, if accepted, could have wide-ranging implications for its whole working. In any event, if a section 6 duty had arisen, it had been fulfilled. Section 5(1) and section 5(2) (as read with section 6) gave rise to separate issues. Section 6 might apply to some employees but it was not over-arching in the way section 5(1) was. The purpose of section 6, it was argued, was "enabling", that is, by the making of reasonable adjustments to enable a disabled individual to carry out his particular job. If he could not, by adjustments to the job or to its context, be enabled to do that job, no section 6 duty arose. It was accepted that arrangements within the meaning of section 6(1) could include contractual terms and conditions but the section was not engaged merely by the fact that a person in a job had become disabled (and so unfit to perform its duties) and the existing terms and conditions remained unchanged. The appellant's approach to the interpretation of section 6 was inconsistent with the language used. It was not the arrangements which had made the difference to the appellant but the fact that she had become disabled. This was not a case in which the employer had caused the employee's terms and conditions of employment to be changed and had so caused the difference. Further, the comparison was with others who were not disabled. That necessarily involved an area of comparison. One could not make a comparison with persons in a completely different job. A person who could not do a job at all could not properly be said to be at a substantial disadvantage in comparison with others who could. It was impossible to compare in terms of advantage in a running race a runner and a non-runner. Moreover, the steps must be such as to prevent the arrangements having the effect (of preventing the appellant carrying out the duties of a road sweeper). Nothing the respondents could do could have such an effect. The appellant's interpretation would also give rise to the prospect of nuisance value applications. It was entirely inconsistent with the legislative intention that a person unable to do the job of road sweeper should be entitled to have a quite different job (say, as a care assistant or a secretary). If an entirely different job was in issue, then the discrimination provisions made under section 5(1) and 4(2)(b) applied. If the extent of the disability was such that the disabled person's performance of the job must come to an end, such a person was in no different a position from another whose job for some other reason (for example, redundancy) had come to an end. "Transferring him to fill an existing vacancy" (section 6(3)(c)) might involve a transfer to another job of the same category elsewhere. It did not import giving the employee a completely different job. Unless there was a duty under section 6 it was unnecessary to go further (Cave v Goodwin 14 March 2001, Court of Appeal, unreported per Peter Gibson L.J. at para.[55]). In the same case at para.[49] the approach which the Court had adopted in Retarded Children's Aid Society v Day [1978] 1 WLR 763 to the findings of a tribunal of fact had in this context been adopted. In the circumstances the only duty on the respondents was to avoid unlawful discrimination under section 4(2)(b) (as read with section 5(1)). There was an inconsistency in the appellant's contention which had originally been directed to a complaint about her redeployment opportunities. The appellant's contention now was in effect that there should be positive discrimination in her favour (and against others). That was inconsistent with the codes of practice on sexual and racial discrimination. Reference was made to Lord Chancellor v Coker [2002] ICR 321 at paras. [54]-[57]. The respondents' existing redeployment policy was not in breach of the requirements of the Act. In affording the appellant a fair chance to apply for alternative employment in competition with others, the respondents had in any event complied with any duty upon them. The reason she had not got the job was, as had been found as a fact, related to her industrial background rather than to her disability. Section 6(7) recognised that there were limited circumstances in which the taking of steps under section 6 might favour a disabled person over others but, if any duty under that section could be discharged without discriminating against others, a non-discriminatory approach should be adopted. There had been no complaint that in their treatment of the appellant's many job applications the respondents had discriminated against her. The appeal should be refused. [17] In further submissions counsel for the appellant contended that the appropriate focus under section 6 was on employment with the one employer rather than (as the respondents contended) on the employee's specific job. In the present case the appellant's contract of employment constituted for the purposes of section 6(2)(b) the arrangements on which her employment with the respondents was afforded. Although a contract was a bilateral arrangement, in the context of many employments (where the terms were effectively fixed by the employer) the contractual arrangements were afforded by the employer. In the events which had occurred the appellant's contractual arrangements had put her at a substantial disadvantage in comparison with her able-bodied colleagues; she was by reason of her physical disability put at risk of dismissal (and had in fact been dismissed) whereas her colleagues were not put at that risk. The appellant's case was that in these circumstances a section 6 duty was imposed on the respondents which could be discharged by their transferring her to another job which was vacant. This would involve an alteration to the pre-existing contractual arrangements but that alteration would prevent them having the disadvantaging effect. The reference in section 6(3)(c) to "an existing vacancy" was to make it clear that an employer was not under a statutory obligation to create a new job. Here the respondents' duty was to offer to the appellant on a non-competitive basis a vacant job for which she was qualified. [18] In further submissions counsel for the respondents argued that the terms and conditions of employment necessarily defined the particular job and its nature. Wholly to change the job went beyond the scope of section 6. Under the respondents' redeployment policy all those who sought a particular job were in the same position. The use of competitive interviews involved no discrimination. In respect of any application for a sedentary job the appellant's physical disability placed her at no disadvantage.Discussion
[19] The principal issue which arises for decision in this case turns upon interpretation of section 6 of the 1995 Act in the context of the statute as a whole. Counsel on either hand urged a purposive construction but they were at odds as to the true purpose of this part of the legislation. Counsel for the respondents contended that the anti-discrimination provision under sections 5(2) and 6, as read with section 4, was essentially of an "enabling" character, requiring an employer to make reasonable adjustments to enable a disabled individual to carry out his particular job. Counsel for the appellant contended that the legislative purpose of section 6 went further, so that the affording of a different job with the same employer could be (and in the present case was) within what was contemplated. I have not found anything within the statute which gives clear guidance as to the scope of the legislative purpose and am accordingly driven back to the language used. [20] Two preliminary issues can, however, first be disposed of. First, counsel for the respondents submitted that discrimination as identified under section 5(2) was subsidiary to the "over-arching" discrimination under section 5(1). I am unable to accept that hierarchical approach. The language of section 5(2) ("also discriminates") suggests simply a mode of discrimination additional to the mode identified under section 5(1). Secondly, counsel for the appellant submitted that the terms of the Code could be prayed in aid in interpreting the statute. I am unable to accept that submission. The Code is admissible in evidence (section 53(5)); under section 53(6) if any provision of it "appears to a court or tribunal to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question". However, it is plain from section 53(1) that the Secretary of State is empowered to issue codes of practice for the purpose of giving "practical guidance". Notwithstanding the apparent breadth of section 53(6) I am unable to accept that it requires this Court in interpreting section 6 as a matter of law to have regard to the terms or examples found in the Code. The Code itself (rightly, in my view) recognises in paragraph 1.3 that authoritative interpretation of the Act is for the courts and tribunals. I would add that neither party before us sought to rely on any extra-statutory material on the basis recognised as legitimate in Pepper v Hart [1993] AC 593. [21] The expression "arrangements" is not defined in the statute. It is used in section 4(1)(a), section 6(1)(a), section 6(2)(a) and section 6(2)(b). In section 4(1)(a) and 6(2)(a) it plainly relates to arrangements made at a pre-contractual stage at the hand of the employer alone. This is emphasised in section 4(1)(a) by the arrangements being those "which [the employer] makes". In section 6(2)(b) the expression "arrangements" is used disjunctively from "any term, condition" but the whole phrase "any term, condition or arrangements" forms the antecedent to the subordinate clause "on which employment, promotion, a transfer, training or any other benefit is offered or afforded". It was submitted on behalf of the appellant (and not challenged by counsel for the respondents) that each of the elements in the subordinate clause could be "offered" or "afforded". Whatever the precise scope of "arrangements" in section 6(2)(b), what was "afforded" thus appears to include employment on terms and conditions. Although a contract is of its nature a bilateral relationship, it was suggested in argument that in most cases employment was on terms proffered by the employer and that accordingly it would in practical terms be "afforded", as well as offered, by him alone. Thus the affording of employment on terms and conditions could, when subsections (1) and (2) of section 6 were read together, be "arrangements made by or on behalf of the employer" within the meaning of section 6(1)(a). Although subsection (2) appears to be intended primarily as a restrictive provision ("applies only in relation to ..."), I am persuaded that, when the subsections are read together, "arrangements" in subsection (1)(a) must include, at least to some extent, contractual arrangements in the form of terms and conditions. But these must nonetheless be contractual arrangements which can truly be said to be "made by or on behalf of the employer". They must be arrangements of a kind which he at his own hand can make or not make as he chooses. [22] The notion of action at the hand of the employer alone is also found elsewhere in section 6(1). It is he who, if a duty arises, has to take the requisite steps. And the purpose (or object) of his doing so is to prevent the arrangements which he has made from having the disadvantaging effect referred to earlier in the subsection. [23] Although under the subsection it is the arrangements (or some physical feature of the premises) which "place" the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, I accept that there is no particular chronological sequence involved in such placement. A person already disabled may come to pre-existing arrangements; new arrangements may come to an already disabled person; existing arrangements may affect a person who has become disabled. It is the conjunction of the arrangements and of the substantial disadvantage to the disabled person concerned which is material. [24] The subsection does not expressly specify in what respect, if the subsection is to apply, the arrangements must place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled. However, the terms of the section, read as a whole, give some assistance, in my view, in determining what the legislature had in mind. The expression "the disabled person concerned" is defined in subsection (5). It includes persons who are applicants, and potential applicants, for employment as well as existing employees. Ordinarily, an applicant for employment will be a person who seeks engagement in some particular post, the nature and elements of which are to a greater or lesser degree defined, rather than a person who seeks engagement in any capacity whatsoever. The expressions "that employment" in section 6(5)(a) and "the employment concerned" in section 6(5)(b)(i) appear, consistently with the interpretation provision (section 68), to refer to employment in a particular post or capacity. In section 6(5)(b)(ii) "an employee of the employer concerned" will be a person for the time being employed in a particular post with that employer. That the legislature had particular employment in mind is, in my view, confirmed when one comes to consider who are the comparators referred to in the phrase "in comparison with persons who are not disabled". These must, in my view, be persons already employed in, or applicants or potential applicants for, a particular post. They cannot be persons at large or persons employed in any capacity whatsoever by the employer in question. [25] The duty, if it arises, is to take (reasonable) steps "to prevent the arrangements ... having that effect". That imports that the steps taken at the hand of the employer must be of such a kind as are capable of preventing that effect. It appears to import prima facie at least that the arrangements remain basically in place but are adjusted or modified to prevent the disadvantaging effect. The step of affording the appellant employment in a quite different (sedentary) job, involving as it would a basically different contract, can, in my view, fall within section 6(1) only by straining the final words of that subsection. It is also, in my view, doubtful whether the arrangements founded on by the appellant can be said to be arrangements "made by or on behalf of the employer". The problem which the appellant faced was an incapacity to perform at all the basic tasks of the job for which she was employed by the respondents. Such incapacity is not itself a breach of contract by her: while there is, no doubt, a legal subsumption to every contract of employment that the employee is and remains capable of performing the basic tasks of that employment, it is doubtful whether that is a "term" or "condition" of the contract in the sense intended. These expressions seem in this statutory context more aptly referable to the incidental stipulations on which employment is offered or afforded than to the fundamental requirements of the employment itself. [26] These considerations point to the conclusion that the duty under section 6 arises where "the disabled person concerned", whether an applicant for the particular employment or an employee in that particular employment, is placed at a substantial disadvantage in the performance of that particular employment in comparison with persons, whether applicants or existing employees, who are not disabled and where it is open to the employer at his own hand to make adjustments to the arrangements of that particular employment, in some cases modifying the existing contractual terms, to prevent that disadvantage having that effect. [27] A duty of that scope would be consistent with each of the examples of steps listed in section 6(3), except possibly that in paragraph (c), "transferring him to fill an existing vacancy". But the expression "transferring" is not defined. It is capable of describing a movement from one employment situation to another (perhaps involving a change in job title) but which does not involve, as would arise here, a fundamental change in the nature of the employment. [28] One further consideration may be relevant. Section 6(1) and (2)(b) apply not only to existing employees but also to applicants for the employment concerned (section 6(5)(b)). The logic of the appellant's argument would appear to have the result that the section 6 duty would require an employer, faced with an applicant for a particular employment where that applicant was incapable of performing the basic tasks of that employment but capable of performing the tasks of some other vacant employment with that employer, to take steps to offer without competition that other employment to such an applicant. It is difficult to accept that a section 6 duty was intended to be imposed in such circumstances. [29] I acknowledge that the opening words of section 6(7) recognise that there will be some situations in which the operation of section 6 may require an employer to treat a disabled person more favourably than he treats or would treat others. But all that does, in my view, is to recognise that incidentally the operation of that section may have that result. The basic statutory objective remains that disabled persons should be treated neither more favourably nor less favourably than others. [30] While I have not found the issue of statutory construction easy to resolve, I have in the end come to the view that for the reasons expressed above the conclusion reached by the Employment Appeal Tribunal (that in the circumstances no duty under section 6 arose) was correct and that accordingly this appeal must on that basis be refused. In these circumstances it is unnecessary to discuss either the issues which would have arisen if there had been any such duty or the terms of any remit to the employment tribunal.
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION XA12/03 |
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Lord Hamilton Lord Macfadyen Lord McCluskey |
OPINION OF LORD MACFADYEN in Appeal to the Court of Session under section 37 of the Employment Tribunals Act 1996 by SUSAN ARCHIBALD Appellant; against FIFE COUNCIL Respondents. |
Act: O'Brien, QC, D O'Carroll; Drummond Miller, W.S.
Act: O'Neill, QC, Sharpe; P Robertson (for Fife Council)
9 December 2003
Introduction
[31] Your Lordship in the chair has set out the background to this appeal, an account of the proceedings before the employment tribunal and before the employment appeal tribunal, the relevant statutory provisions, and a summary of the submissions made before us on behalf of the parties. It is therefore unnecessary for me to deal with these matters. I shall confine myself to setting out the reasoning by which I have reached the conclusion that the appeal should be disposed of in the manner proposed by your Lordship.
Discussion
[32] I agree that the issues in the appeal turn upon the proper construction of the relevant provisions of the 1995 Act, of which section 6 is the one most directly involved. The primary definition of discrimination, for the purposes of the 1995 Act, is to be found in section 5(1). Discrimination is not established by mere proof that the disabled person has been less favourably treated for a reason related to his disability than a person not disabled, to whom that reason would not apply. The additional requirement is that the employer should be unable to show that the treatment in question was justified. Section 5(2) sets out an additional set of circumstances which also amount to discrimination. Discrimination arises under section 5(2) if there was failure to comply with a section 6 duty and, in addition, that failure cannot be shown to have been justified. The section 6 duty arises, in terms of subsection (1), inter alia where "any arrangements made by or on behalf of the employer ... place the disabled person concerned at a substantial disadvantage in comparison with any persons who are not disabled". If that condition is satisfied, the duty which is incumbent on the employer is "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 ... having that effect". [33] Sections 5(2) and 6 can, in my view, be seen as operating so as to ensure that it is not too easy for an employer to justify discrimination. Together, they have the effect that, if an employer would be able to point to some factor as justifying discrimination under section 5(1), but the factor in question is an "arrangement" made by the employer, and the substantial disadvantage at which that arrangement places the disabled person could be eliminated by the employer's taking reasonable steps, it will only be if the employer can show justification for not taking such reasonable steps that he will be able to avoid a finding of discrimination under section 5(2). [34] If a case of discrimination is to be made under section 5(2), it is first necessary to determine whether the circumstances are such as to give rise to a section 6 duty. That depends on whether the section 6(1) condition, namely that "any arrangements made by or on behalf of the employer ... place the disabled person concerned at a substantial disadvantage in comparison with any persons who are not disabled", is satisfied. For that purpose, it is necessary to take account of section 6(2) which, while it does not provide a comprehensive definition of the expression "arrangements", does make further provisions which bear on the meaning which that expression may be given in subsection (1). Section 6(2) both narrows and broadens the meaning of "arrangements" in section 5(2). It narrows the meaning by providing that subsection (1)(a) applies only in relation to the matters set out in subsection (2). These matters are (a) arrangements for determining to whom employment should be offered, and (b) "any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded". Paragraph (a) has no application in the present case, where the appellant was already an employee of the respondents before she became a disabled person. For present purposes, therefore, the effect of subsection (2) is to provide that subsection (1)(a), which refers to "arrangements", applies only in relation to any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is afforded. It thus broadens the expression "arrangements" in subsection (1)(a) to include also any "term" or "condition", subject to the restriction that the term or condition in question (as well as any arrangements) must be a term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is afforded. [35] The next question to be determined, therefore, is what the proper scope is of the phrase "any term, condition or arrangements on which employment ... is ... afforded". Both that phrase, and the terms of the section 6(1) duty, suggest that the term, condition or arrangements must be something imposed by the employer, and capable of being adjusted by him. I do not consider, however, that the fact that a contract of employment is a bilateral contract, requiring consensus between the employer and the employee, precludes regarding any particular term, condition or arrangements as arrangements "made by or on behalf of the employer". It is for the employer to lay down what he requires of employees in a particular category. The person who accepts employment agrees to satisfy those requirements, but that does not make them any less requirements made by the employer. In a sense, therefore, the requisite degree of physical fitness might be regarded as a condition on which employment as a road sweeper was afforded to the appellant. That is so at least in the sense that lack of such physical fitness on the part of the employee will (disability discrimination issues aside) entitle the employer to dismiss the employee on the ground of capability. I do not consider, however, that that analysis is sufficient to bring the requirement of physical fitness within the scope of the phrase "term, condition or arrangements on which employment ... is ... afforded". The phrase does not in my view apply to the irreducible minimum content of the particular job. It is, in my view, intended to catch terms, conditions and arrangements which are added by the employer and which have the effect of substantially disadvantaging a disabled employee who would, but for them and despite his disability, not be so disadvantaged. It seems to me that when the appellant became disabled, unable to walk, and thus unable to perform the duties of a road sweeper, she was placed at a substantial disadvantage in comparison with persons who were not disabled, not by a term, condition or arrangements which the respondents had chosen to attach to the job of road sweeper, but by the fundamental nature of the job itself. [36] That is, in my view sufficient to dispose of the appeal. In my opinion, the appellant fails because, on a sound construction of section 6 the circumstance on which she founds as an "arrangement" made by the respondents, namely the intrinsic requirement of the job of road sweeper that the person employed in that job be physically fit to walk, is not properly within the scope of that concept. [37] I should add that I find further support for the conclusion which I have reached in a consideration of the content of the section 6 duty. It is "to take such steps as it is reasonable, in all the circumstances of the case, for [the employer] to have to take in order to prevent the arrangements ... having that effect" [i.e. the effect of placing the disabled person at a substantial disadvantage]. Leaving aside the question of reasonableness, what must be taken are steps which will prevent the arrangements having the effect of placing the disabled person at a substantial disadvantage. While I recognise that on a literal reading of that provision it might be thought that the steps had to be separate from the arrangements, leaving the arrangements themselves untouched but procuring the result that they no longer had the proscribed effect, I am of opinion that that would be too narrow a construction of the language of the section. There are no doubt cases where the steps may leave the arrangements as such untouched but alter their impact on the disabled person. It seems to me, however, that in order to give proper effect to the purpose of the statutory provisions, the steps to be taken in pursuance of the section 6 duty must be allowed to include steps which adjust the arrangements, so that the adjusted arrangements no longer have the effect of substantially disadvantaging the disabled person in the way that the unadjusted arrangements did. That, it seems to me, is implicit in some of the examples of adjustments given in section 6(3), e.g. allocating some of the disabled person's duties to another person (section 6(3)(b)), or altering his working hours (section 6(3)(d)). Your Lordship in the chair has expressed the view, however, that the step of affording the disabled person a quite different job, involving a basically different contract, could be made to fall within the scope of section 6(1) only by straining the final words of the subsection. I agree. If, as I would hold, arrangements within the meaning of section 6(1) cannot include the fundamental essence of the job, so too the section 6 duty cannot require steps which substitute a wholly different job rather than adjust the terms, conditions or arrangements on which the employer affords the original job. [38] Although I am in agreement with the result which the employment appeal tribunal reached, I should record my disagreement with one aspect of the reasoning adopted both by the appeal tribunal and by the employment tribunal. They both took the view that the appellant's claim was defeated by section 6(7), which provides that:"Subject to the provisions of this section, nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others."
It is no doubt right that what the appellant desiderates would involve treating her more favourably than others. Crucially, however, the subsection begins with the words "Subject to the provisions of this section". The result, in my opinion, is that if compliance with the section 6 duty requires an employer to treat the disabled person more favourably than he would treat others, subsection (7) does not stand in the way of his doing so. On the view which I have taken of the proper construction of section 6(1) and (2), however, that issue does not arise in this case.
Result
[39] In the result, I agree that the appeal should be refused on the ground that, in the circumstances and on a sound construction of the relevant statutory provisions, no section 6 duty was incumbent on the respondents.
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION XA12/03 |
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Lord Hamilton Lord Macfadyen Lord McCluskey
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OPINION OF LORD McCLUSKEY in Appeal to the Court of Session under section 37 of The Employment Tribunals Act 1996 by SUSAN ARCHIBALD Appellant; against FIFE COUNCIL Respondents;
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Act: O'Brien, QC, D O'Carroll; Drummond Miller, W.S.
Act: O'Neill, QC, Sharpe; P Robertson (for Fife Council)
9 December 2003
[40] I agree with the conclusion that your Lordship in the Chair has reached; and I respectfully accept that the reasoning in your Lordship's Opinion fully justifies that conclusion. I should wish only to address what I consider to be the central point. [41] Section 5(2)(a) provides that an employer 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 critical point in this appeal is whether or not, in the circumstances of this case, section 6 imposes upon the Respondents the duty upon which the Appellant seeks to found. I believe that that issue can be resolved by examining the relevant provisions in section 6. The section is quoted by your Lordship in the Chair; what I attempt to do is to highlight those parts of the section that appear to govern its application to the circumstances of this case. [42] The parts that appear to me to be relevant read as follows:"Where - (a) any arrangements made by...an 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 take in order to prevent the arrangements...having that effect.".