United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S BELGRAVE (of Counsel) Messrs Ian Moss & Co Solicitors 41 Temple Street Birmingham B2 7AJ
For the Respondents	MR J ALGAZY (of Counsel) Messrs Male & Wagland Solicitors 4 Barnet Road Potters Bar Hertfordshire EN6 2QT


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the unanimous decision of an Industrial Tribunal held at Shrewsbury on 2nd October 1997 which dismissed Ms Ridout's complaint of unlawful discrimination on grounds of sex and disability. The decision was reduced to writing and was sent to the parties in October 1997 following a one day hearing.

The appeal which we have considered in this case is an appeal in relation to the rejection of her complaint of disability discrimination. The facts relating to this complaint may be shortly stated and we take them from the Industrial Tribunal's decision and from the documents supplied to us.

Ms Ridout having seen an advertisement in The Guardian newspaper applied for a position with the respondent organisation. She was short-listed for an interview. The documents which she supplied to her prospective employers included a curriculum vitae in which she disclosed that she was a disabled person although not registered disabled. What she said was:

"However, I am disabled. I have photosensitive epilepsy controlled by epilim."

Her qualifications can only be described as impressive and she had listed various interests and hobbies, including dance, music, drama, cinema and others. She indicated on a sheet entitled "Confidential Medical Questionnaire" with which she was supplied that she had been diagnosed 20 years ago as suffering from epilepsy and "controlled by Epilim", and to the other question "Are you presently taking medication or undergoing medical treatment?", her answer was "Epilim 1500mg/day". The question then was "Are you a Registered Disabled Person?", to which she answered "No". "If yes, please state nature of your disability:". She said "However, I am disabled - epilepsy (see above)".

She sent that material to her prospective employers and she attended for an interview. It was her case that when she came for interview she saw at once the possibility that she might be put at difficulty because of the lighting arrangements. The room concerned had fluorescent lighting; there were no diffusers or baffles, it was bright. There were venetian blinds and light coloured walls. She indicated to the Industrial Tribunal that these are factors which predispose somebody suffering from photosensitive epilepsy to an attack. In paragraph 5 of their decision the Industrial Tribunal concluded:

"5. There is no doubt here that the Respondents knew that the Applicant had the disability: she declared that on the form. We are satisfied that epilepsy is a disability within the meaning of the Act; there has been no dispute about that. The question centres on what the Respondents could reasonably be expected to know about the requirements of epileptics for particular lighting arrangements to be made in rooms where they were required to be, in this case for an interview."

In paragraph 6 of the decision which featured largely in the argument to which we were entertained on this appeal, it was said by the tribunal as follows:

"6. The Respondents were told that the epilepsy was controlled by medication, and we think it not going too far to say that they did not think much more about it on the basis of what they were told on the form. However, things did move on because on the day of the interview it is conceded on all sides that the Applicant did make some comments on entering the room, to the effect that she may be disadvantaged by the lighting. There are very minor disputes in how she expressed herself but it comes to the fact that she did express some disquiet at the lighting in the room. This unfortunately was an internal room; it had not windows, no natural light, and in any event the interview of the Applicant was held at 5 p.m. during February, so there would be no natural light available anyway. The room was lit entirely by artificial fluorescent lighting which was all controlled by one switch, so it was not possible to switch off some of the lighting. Had the Respondents thought it appropriate, they could, they tell us, have made arrangements to use table lamps, for example, or they might have explored the possibility of moving to a different room, although that does not seem to be a very fruitful possibility since the whole building was list in the same way."

In paragraph 7 the tribunal say:

"7. What we are told by the Respondents, however, is that they took the Applicant's remarks on entering the room as an explanation of the fact that she had brought sunglasses with her (they were around her neck, attached to a cord), and as an explanation of why she had the sunglasses and of the fact that she might need to use them if the occasion arose. The occasion did not arise, the Applicant did not use the sunglasses. She did not thereafter tell the Respondents that she was in any way unwell or felt disadvantaged."

The tribunal then asked themselves the question as to what the prospective employers should have done and they express themselves quite satisfied that it was not reasonably to be expected of them that they should make any further enquiry at the stage when they received the application form and further details. The tribunal specifically rejected the suggestion that at that time the respondents should have commissioned a specialist's report in advance of an interview so as to consider whether or not their physical arrangements for the interview were satisfactory or safe for the applicant's use.

The tribunal indicated that as a result of what was said at the interview it was clearly possible that the prospective employers could have done more: they could have switched off the lighting, although that would have been very difficult given the time of day. Had they known in advance the tribunal comment that the employers might have arranged the interview for a time when there was daylight available; but they did not know in advance. They could have made some attempts to the light the room in an alternative way, by desk lamps or table lamps for example.

In paragraphs 10 and 11 the tribunal give their conclusions:

"10. However, given that the Applicant had sunglasses with her and was saying that what she said in the context of explaining that she had the sunglasses and why she had them with her and that she might need to use them if the occasion arose, we cannot criticise the Respondents for taking her remarks in that way, rather than as a suggestion that the room itself was unsuitable. We think that it would have been possible for the Applicant to be much more forthcoming about what she regarded as being required, and we do not accept the submission on her behalf that once she had mentioned the word "epilepsy" on her application form, then the onus passed to the Respondent to do everything which was necessary to be done, under the Act or otherwise. The Act is not phrased in that way. The Act is phrased in such a way that the Respondent must react in the appropriate way to that which it knows and to that which it could reasonably be expected to know. That obviously places, in our view, an onus on the Respondent to make reasonable enquiry based upon information given to it. It does not place upon the Respondent the absolute onus to make every enquiry possible even where there is no, or very little, basis for making such enquiry. We think that submission goes too far on behalf of the Applicant.

11. In our view, the Respondents were not in this case in breach of their obligations under section 6 of the Act. They reacted appropriately to that which they knew and they did not fail to make reasonable enquiry. ..."

The tribunal went on to say that even if they had been satisfied that the employers had failed to make a reasonable enquiry and to do what they should have done, a further question arose as to as to whether the applicant was substantially disadvantaged thereby. They came to the conclusion that she was not subjected to any substantial disadvantage. Their reasoning was set out in paragraph 11:

"... We do not think in the light of what we have heard about how this interview proceeded that the Applicant was at a substantial disadvantage. Had she been so, we feel sure that she would have used the sunglasses available to her: she had obviously planned on the possibility that it might be necessary to use them because she had them with her. She must have been in very many office buildings and must have had a good idea what kind of lighting is likely to be found in office buildings these days. She could have said, and in our view should have said, rather more than she did if she felt that those extremely common circumstances of office lighting were in some way detrimental to her in ways that she knew but in ways that in our judgment the Respondent could not reasonably have known about unless she told them."

In an appeal which was admirably presented, if we may so, with great skill on Ms Ridout's behalf by Ms Belgrave, it was contended that the Industrial Tribunal erred in law in so far as it placed a burden on the appellant to inform her prospective employers of the extent of her condition. It is said that it was muddled in its findings that the respondents in the instant case did not need to make any further enquires, despite having found that an employer should make appropriate enquiries. Finally, it was submitted that the finding that the appellant suffered no substantial disadvantage was one which had no factual basis and was effectively a perverse conclusion on the facts as found by the Industrial Tribunal.

In relation to the two submissions, our attention was drawn to the structure of the legislation. This was a complaint brought under s. 4(1) of the Disability Discrimination Act 1995. It was the applicant's contention that she had been discriminated against by the respondents by their refusal to offer her employment. Discrimination is defined in s. 5 of the Act, and in this case the discrimination alleged was under s. 5(2) namely:

"(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."

S. 6(1) provides:

"(1) Where-

(a) any arrangements made by or on behalf of an employer, or

(b) any physical features 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."

Our attention was drawn to the case of O'Neill v Symm Co Ltd [1998] IRLR 233. There was no dispute, said Counsel, as is correct, that the applicant was suffering from a disability. The Industrial Tribunal correctly recognised that in certain circumstances it may be incumbent on a prospective employer to make enquires to satisfy himself as to whether any adjustment is required. Our attention was drawn to the Code of Practice which has been issued by the Secretary of State in this case, to which reference is made in the statute. S. 53 of the Act provides for the Secretary of State to issue Codes of Practice. Subsection (4) provides that:

"(4) A failure on the part of any person to observe any provision of a code does not of itself make that person liable to any proceedings."

But subsection (5) provides that:

"(5) A code is admissible in evidence in any proceedings under this Act before an industrial tribunal, ..."

Subsection (6) says:

"(6) 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 relevant Code of Practice is made by statutory instrument in 1996, on 2nd December,

and is headed "Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability." Our attention was drawn specifically to paragraphs 5.15 and 5.16 of the Code under the heading "What should an employer do when arranging interviews?" 5.15 provides:

"Employers should think ahead for interviews. Giving applicants the opportunity to indicate any relevant effects of a disability and to suggest adjustments to help overcome any disadvantage the disability may cause, could help the employer avoid discrimination in the interview and in considering the applicant by clarifying whether any reasonable adjustments may be required."

5.16 provides:

"Nevertheless, if a person, whom the employer previously did not know, and could not have known, to be disabled, arrives for interview and is placed at a substantial disadvantage because of the arrangements, the employer may still be under a duty to make a reasonable adjustment from the time that he first learns of the disability and the disadvantage. However, what the employer has to do in such circumstances might be less extensive than if advance notice had been given."

It is submitted to us that it was clear from the finding at paragraph 6 of the Industrial Tribunal's decision that the prospective employers effectively gave no thought to the needs of the appellant; therefore, the employers were in breach of their duty to take care for people with disability. It is submitted to us that the onus in this case was on the prospective employee to inform the prospective employer of a disability, but that once he or she has done that the onus passes to the employer to make such enquiries as are necessary to satisfy himself that he can discharge his duties under s. 6. Such enquires may simply be limited to making further enquiries of the employee. The submission that was made to us was that the appellant having discharged the onus on her at the first stage, the prospective employers failed to take two opportunities to consider their position, first, on receipt of the application, and secondly, when she arrived for interview. Instead they made no enquiry of her before the interview, and they relied on her to wear her dark glasses if needs be if the interview room turned out to be unsatisfactory to her. It was submitted to us that it was a substantial disadvantage to the appellant that she should be required to wear dark glasses and run the risk of looking and seeming peculiar as a result, or putting up with the unsatisfactory lighting conditions and being disadvantaged by the effect that the physical environment was having on her, bearing in mind her disability.

For the employers it was submitted to us that this was effectively a question of judgment and fact for the Industrial Tribunal. In reliance on what is said at paragraph 62 of the report in the O'Neill case, Counsel invited us to the view that:

"The nature and extent of the adjustment to be made will vary according to the particular needs of each case. So also will the kind of steps an employer could reasonably be expected to take to inform himself."

Our attention was also drawn to paragraph 63 of the same decision:

"Thus, Miss O'Neill's case turns upon its own facts as found by the industrial tribunal. It had in mind what the employer did and did not know about her; what opportunity it had to know about her; the guidance of the Code of Practice. Those are all relevant matters. The industrial tribunal is very well able to make a judgment as to whether, on the particular facts it finds, the employer acted reasonably. We found no error of law in the industrial tribunal's approach, nor in its consideration of the Code of Practice."

It was submitted to us that on the material which the appellant presented to the employers they were not put on enquiry as to whether they should make special physical facilities available to her. She was an active person who had a full employment history. Her hobby activities included dancing and other matters. She obviously was well-controlled, in terms of her disability, by the drugs which she was taking, and they were not to be expected to have anticipated any problem with the physical arrangements they had made for her interview. When she attended for interview and drew attention to the physical facilities, it was a question of what precisely was said and the context in which it was said as to whether the employers then became under a duty to take any other action.

We have looked with care at this appeal, but have come to the conclusion that this is not a case where there has been any error of law in the Industrial Tribunal's decision.

The duty under s. 6 of the Act is to be construed in the light of the provisions of subsection (6) which provide:

"(6) Nothing is 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)."

The Industrial Tribunal had occasion to construe that subsection and, in our judgment, they were correct in the way they approached the matter. Subsection (6) requires the tribunal to measure the extent of the duty, if any, against the actual or assumed knowledge of the employer both as to the disability and its likelihood of causing the individual a substantial disadvantage in comparison with persons who are not disabled. This was a case which, in our judgment, fell within s. 6(1)(b). In other words it was a case which was concerned with the physical feature of premises occupied by the employer; rather than with the arrangements made by or on behalf of the employer. It would appear at first sight, at any rate, that where in s. 6 the word "arrangements" is used, Parliament intended those to be the arrangements for determining to whom employment should be offered, or arrangements for which employment, promotion and so forth is offered or afforded; and having regard to subsection (3) it may well be that subsection (3)(a) is more appropriate for a s. 6(1)(b) case; whereas, for example, s. 6(3)(d) may be more appropriate for a s. 6(1)(a) case. We do not need to reach a conclusion on this particular point, but it does seem to us that there is force in the submission which was made to us that the judgment which a tribunal must make under s. 6 having regard to the terms of s. 6(6) is essentially a question of fact for the Industrial Tribunal.

It seems to us that they were entitled on the material before them to conclude that no reasonable employer would be expected to know without being told in terms by the applicant, that the arrangements which he in fact made in this case for the interview procedure might disadvantage this particular applicant for the job. As it was said in argument, this form of epilepsy is very rare.

Furthermore, it seems to us that the Industrial Tribunal was best placed to judge whether the disabled person had been placed at a substantial disadvantage in comparison with persons who are not disabled. That is a judgment which has to be made by the fact finding tribunal. We accept what Counsel for the appellant was saying, that Industrial Tribunals should be careful not to impose on disabled people who are seeking employment a duty to "harp on" about their disability so as, so to speak, to excuse themselves at the interview process before the selection is made. One of the purposes of the legislation is to ensure that disabled people have the same opportunities for employment, and in their employment, as others not suffering from such disability. It would be unsatisfactory to expect a disabled person to have to go into a great long detailed explanation as to the effects that their disablement had on them merely to cause the employer to make adjustments which he probably should have made in the first place.

On the other hand, a balance must be struck. It is equally undesirable that an employer should be required to ask a number of questions about a person suffering from a disability as to whether he or she feels disadvantaged. There may well be circumstances in which that question would not arise. It would be wrong if, merely to protect themselves from liability, the employers or prospective employers were to ask a number of questions which they would not have asked of somebody who was able-bodied. People must be taken very much on the basis of how they present themselves.

It seems to us, in these circumstances, that the question as to whether the prospective employers should have taken any other steps as a result of what was said at the interview, depended almost entirely on the perception of both parties as to what was happening at the interview process. If the appellant was simply nervous and explaining that she might have to put on her glasses because the room was likely to cause a problem, but that she was quite happy to go on with the interview, that would be one thing. If, on the other, she was saying that the room was causing her a problem and she might have to put on dark glasses, but that she felt disadvantaged as a result of being in that room, that would be another. This was therefore a matter of fact and evidence for the Industrial Tribunal and a judgment for them to make on the basis of the evidence as to precisely what occurred.

However, we do criticise the Industrial Tribunal for not making specific reference to the Code of Practice. It seems to us that as the case law develops in relation to the Disability Discrimination Act, Industrial Tribunals will build up a knowledge of how the Act should be applied in practice. At this period of development it is particularly important, in my judgment, that Industrial Tribunals should always refer to the relevant provisions of the Code of Practice as they are required to do under s. 53. The Code will help them in resolving questions at issue since the Code sets out the standards to be expected, in relatively straightforward language. In this case, there is nothing in the Code, in our judgment, which is of particular assistance to the appellant. The passages which we have quoted in this judgment do not seem to us to throw light on the real question at issue which was what should the employers reasonably have done when she appeared at the interview room, it being clear, in our judgment, that they could not reasonably have been expected to anticipate any problems as a result of them simply looking at the application forms. In relation to what happened at the interview room, that was a matter of evidence and we cannot interfere with the Tribunal's conclusions which seems to us, if I might respectfully say so, to be sensible and well-reasoned.

As to whether there was any substantial disadvantage. We would be inclined in this case to have agreed with the Industrial Tribunal; although we see the force of the appellant's point that it is not satisfactory that a prospective employee should be forced to wear dark glasses to counteract the affect of the room. It seems to us that given the circumstances over again, it would have been better if, given the facts as found by the tribunal, the employer had gone on to enquire about the suitability of the arrangements and made any adjustments that the applicant for the job might reasonably have required. But that is very much with the benefit of hindsight, and we have no reason to believe that the judgment of the Industrial Tribunal on the facts as they heard them can be faulted.

Accordingly, this appeal will be dismissed.