United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR I WILSON (Solicitor) Messrs Dean Wilson Laing 96 Church Street Brighton East Sussex BN1 1UJ
For the Respondent	MS D ROSE (of Counsel) Messrs Eversheds Solicitors Fitzallen House Fitzallen Road Cardiff CF2 1XZ


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us a full hearing of the appeal of Miss A Humphreys in the matter Humphreys v. Environment Agency. There was a hearing over some four days in October 1998 at Cardiff before the Employment Tribunal under the chairmanship of Doctor Rachel Davies.

1. The decision was sent to the parties on the 3^rd November 1998 and the decision was that disability discrimination was not established. Miss Humphreys lodged a professionally drawn notice of appeal which was received by the Employment Appeals Tribunal on 15^th December 1998. By the 22^nd January 1999 there had emerged a much longer notice of appeal described as "Amendment to the notice of appeal". No formal leave to amend was either sought or given.
2. On the 14^th April 1999 there was the usual preliminary hearing at the Employment Appeal Tribunal. The amendments to the notice of appeal were then abandoned. The appeal was indicated to rest exclusively on the original professionally drawn Notice of Appeal. It was that notice of appeal only, and the grounds in it, that was permitted to go forward to this hearing. We have, in fact, heard de bene esse, some argument from Mr Wilson, on Miss Humphreys' behalf, that might be said to go beyond the specified matters raised in the notice of appeal but we have thought it right that we should revert to the matters in the original notice of appeal because, as we indicated, the rest had been abandoned, (although we are bound to add that we cannot see that such additional matters as have been mentioned would, in fact, have made any real difference to the conclusion).
3. Before we revert to the grounds that are raised in the notice of appeal we need to say something of the background to the case. Miss Humphreys began to work for the Respondent on 1^st July 1996 having applied for the post of communications officer on the 16^th April 1996. When she applied for the job, the Tribunal held:-

On the form she stated that the her leisure activities included "all sporting activities……. Particularly hockey and netball". On an attached equal opportunities monitoring form she stated that she had a war disablement pension "for injuries to left hand and knees received during service in the Royal Air Force". She stated "These injuries would not affect my working performance". She also suffered a slight hearing loss. On a third form, the Health questionnaire, she said she considered herself to be in good health but suffered from irritable bowel syndrome and ear trouble. She said that she had been off sick in the past year. She said "irritable bowel, chronic fatigue and Gulf War Syndrome were looked into, extensive tests proved no serious problems were prevalent".

Because, no doubt, of those past difficulties she was required to see the Respondent's occupational health adviser, a Dr Williamson, and he reported that she was "fit for her limited employment". The particular limitation was on work in a noisy hazard area. She then worked in the Regional Communication Centre, "the RCC", a small unit that had a team of four with one supervisor. Their work required 24 hour coverage and so the work had to be arranged in shifts.

4. By October 1996 the shifts had been rearranged to accord with a suggestion which she herself had made. Later she felt that there should be an increase in the number of staff available to meet the needs of the RCC but that was not possible for budgetary reasons, although, in fact, the suggestion was supported by her line manager.
5. By June of 1997 Miss Humphreys had become unwell. As to that the Tribunal says this:

In June 1997, Miss Humphreys told personnel she was suffering from Gulf War Syndrome. She said her GP was unsympathetic and had told her to pull herself together. Personnel suggested she should see the occupational health adviser and with her agreement she was referred to Dr Williamson. On the 17^th June he reported that she appeared to be suffering from Post Viral Disability from which she "should slowly recover". He said "I do not consider that she is fit to carry out 12 hours shifts. I think she could be employed in a clerical capacity working normal working hours. He suggested a follow up assessment in 12 weeks".

6. That recommendation lead to a transfer. As to that, the Tribunal said in their paragraph 8:

In compliance with Dr Williamson's report Miss Humphreys was transferred temporarily, with her agreement, to work in the general administration office of the business services section . The position was A grade but Miss Humphreys' B grade salary was maintained. In the meantime the Respondent employer looked for some further or better solution."

As that the Tribunal said:-

"In the meantime personnel looked for a permanent solution, they spoke to a number of managers about possible permanent posts but vacancies were limited because of the re-organisation and consequent uncertainty as permanents of posts and secondments".

7. The Employment Tribunal then set out further difficulties that were encountered. Miss Humphreys found the clerical work mundane. Her original job, as the quotation indicates, was B grade. By July 1997 she indicated that she did not want the A grade post (A grade being lower than B) that was offered to her. But the only B grade post available would have clashed with Dr Williamson's recommendation that she should work only conventional hours.
8. In July and November 1997 she was told that if no suitable post emerged then there would be no alternative but to dismiss her. In paragraph 11 the Tribunal says this:

Miss Humphreys was off sick during September with certified "Chronic Fatigue Syndrome". On 6 October she had a meeting with personnel and said she wished to apply for a more technical position. She was informed of a post as a Technical Assistant and applied on 17^th October. She was unsuccessful as against two superior candidates who had more experience and technical skills. On 7 November she had a further meeting with personnel and said she was not prepared to continue working in Business Services. She said the mundane nature of the work was exacerbating her condition. There were two vacancies for Business Support Officers in the South East Area Business Services, but she was not interested. She was told that her continued employment would have to be reviewed. On 7 November she was given one month's notice but was informed that during the notice period personnel would continue to look for alternative possibilities. None were forthcoming and her employment ended on 7^th December.

9. It was during that spell when she was off work that the 12 weeks expired at the end of which Doctor Williamson had recommended a follow-up assessment. She was already off sick at the time. As the citation from the Tribunal's paragraph 11 indicates, her employment ended on 7^th December.
10. It was not in issue before the Employment Tribunal that Miss Humphreys was disabled within the meaning of the 1995 Act. That had been held in her favour by some earlier Tribunal. The Tribunal then turned to the different ways in which it had been said on her behalf that she had been unlawfully discriminated against. The Tribunal addressed the questions posed with, as it seems to us, admirable clarity and they concluded in their paragraph 34:

ON THE EVIDENCE we find that:

(i) Miss Humphreys was not treated less favourably than others within the meaning of Section 5(1) of the 1995 Act on grounds of her alleged disability.

(ii) the respondents took such steps as were reasonable to prevent any working arrangements in placing Miss Humphreys at a substantial disadvantage from comparison with others.

(iii) the respondents have shown that her treatment was justified within the meaning of Section 5(1)(b);

and, of course, that naturally led to their conclusion, in paragraph 35:

Having regard to those findings we conclude that disability discrimination is not established. The application is dismissed.

11. The Notice of Appeal raises three arguments and it is convenient to take the second and third first. The second and third are complaints that the Tribunal:-

"failed to consider what steps the Respondent could have taken as were reasonable to protect the Appellant being placed at a disadvantage having regard to whether the Respondent could reasonably have taken any of the steps set out in section 6(3) of the Disability Discrimination Act 1995 and to the factors set out in section 6(4) of the act".

(3) It looked only at the question of limited alternative employment to the exclusion of other steps set out in section 6(3) of the 1995 and/or only the factor of the Appellant's attitude to such alternative employment to the exclusion of other factors set out section 6(4) of that Act.

12. As for the reference to steps set out in section 6(3), to our mind that misunderstands the import of section 6(3). It is not a checklist through which every Tribunal has invariably to work its way if it is to come to a proper decision. It is not wrong, of course, for a Tribunal to work its way through it but it is no sine qua non of an acceptable decision that it should have done so. It is not the case that to fail to be seen to her to have worked one's way through that 6(3) list, renders a Tribunal's decision faulty or an employers decision faulty. To give a rather extreme example that we mentioned in the course of the hearing, if one, as an employer, is dealing with the man with a wooden leg, it is hardly necessary to raise with him, under section 6(3)(k), whether he requires the assistance of a reader or interpreter. It is a rather crude point to make, but it illustrates that section 6(3) is only what it says it is, namely examples of steps that have to be taken, depending on the surrounding circumstances, in a particular case.
13. Section 6(4) is rather weightier. Its importance is that the matters there referred to are matters to which regard has to be had before the Tribunal determines whether a step should or should not have been taken by the employer to alleviate the substantial disadvantage at which the complainant is otherwise placed in comparison with persons who are not disabled as described in section 6(1). But even in section 6(4) it is not in every case that all items in (a) to (e) will necessarily need to have regard paid to them. If, for example, it is held to be totally impracticable to take a particular step within section 6(4)(b) then it can hardly be realistic, as a complaint, to say, that the Tribunal failed to pay regard to the cost of that step under 6(4)(c) or to the employer's ability to meet that cost under 6(4)(d), whether or not assisted as in 6(4)(e).
14. It is to be remembered, too, to that it is only reasonable steps that are required of the employer within section 6(1). With those thoughts in mind as background to the statutory language here in play, we revert to the second and third paragraphs of the notice of appeal to which we have referred. The Employment Tribunal here found that Mr Humphreys was offered A grade jobs to keep her in employment pending the emergence of the greater choice expected on the completion of a reorganisation. She was told of new grade B jobs becoming available in late 1997. She was not demoted. Dr Williamson had recommended that she should do clerical work and accordingly it was that kind of work that was offered to her. Her working hours were altered to suit the medical advice received with respect to her. The Tribunal said:

"We are satisfied that in this interim period prior to completion of the reorganisation the jobs that were offered were the only reasonable adjustment that the Respondent's could have made."

A little later they said:-

"She refused four offers of such posts as were available in the medically recommended clerical work category. She was reminded of the prospect of greater choice on completion of reorganisation yet she declined to keep her employment open by accepting clerical work in the meantime. We find that the dismissal was justified in that Miss Humphreys had refused all reasonable adjustments and there was no other reasonable alternative".

A little later in their paragraph 30 the Tribunal said:

In Miss Humphreys' case, informal procedures as to representation, conference and appeal were satisfied in that she had access to and made use of her trade union officer, there were innumerable meetings constituting conference, and appeal could have been satisfied through the grievance procedure. We find that she was not treated less favourably in the procedures followed.

15. So far as concerns shifts in the RCC, they could not be changed to accommodate her as she was honoured, on advice, limited to clerical duties, whereas RCC duties were not of that kind and she could not, on medical advice, work other than conventional hours.
16. The Tribunal said that " The placement in general administration and the offers of alternative clerical work were justified in that they complied with medical advice as to clerical work and normal hours". The Tribunal's handling of these matters impresses us a comprehensive survey of steps which it might have been reasonable for the employer to take within section 6(1). The Tribunal specifically includes reference to altering working hours, which is dealt with at section 6(3)(e), to the absence of any existing vacancy appropriate for a transfer - section 6(3)( c), and to the practicality of the steps 6(4)(b). Plainly that there was a section 6 duty on the employer was in the Tribunal's mind and they actually echo its language in the passage which we have already read from paragraph 34(ii) where they talk about working arrangements placing Miss Humphreys at a substantial disadvantage in comparison with others.
17. Mr Wilson argues that training of Miss Humphreys was referred to the Employment Tribunal as a possible alternative form of adjustment. We have no chairman's notes. If the Appellant had wished to make the point that important evidence was overlooked then it was incumbent upon her to seek those notes and to prove the point. In the absence of such notes, we cannot detect any failure to consider important evidence and it is to be remembered that, by way of summary, in a passage we have already cited, the Tribunal said:

"We find that the dismissal was justified in that Miss Humphreys had refused all reasonable adjustments and there was no other reasonable alternative".

18. It is not necessary part of a Tribunal's duty to set out a whole host of allegations that run into the sand, which, presumably, if training was dealt with at all, was the case here. We are unable to detect any error of law in the 2^nd & 3^rd paragraphs of the Notice of Appeal that we cited earlier.
19. That leaves another ground of appeal. Looking at the skeleton argument prepared helpfully by Mr Wilson, it complains of the failure sufficiently to pay attention Morse v Wiltshire County Council [1998] IRLR 352. We have had our attention drawn to the Morse case. For all its usefulness, which we would be the last to deny, Morse is not the statute; ultimately, it is the statute that needs to be satisfied and not authorities under the statute. It was common ground before the Tribunal that a section 6(1) duty did here fall upon the employer. It is apparent from the written submissions laid before the Tribunal, copies of which we have, that there was specific reference to the Morse case in some detail.
20. Now it is true that the Tribunal does not in terms mention Morse. Perhaps that is because the first recommended stage of that case requires a consideration of whether section 6(1) and section 6(2) casts a duty on the employer, yet, on the facts of this case, that, as has been shown to us, was common ground. But written submissions were received by the Tribunal from both sides and they included specific reference to the Morse case, to the section 6 duty, to allegations that the duty was or was not complied with and there are also copious references in the decision itself to the Code of Practice. There is no reason to think that these authorities and the Code of Practice were not in the Tribunal's mind when it came to give its extended reasons. It is to remembered, too, that there is a powerful dictum of Lord Russell of Killowen in Retarded Childrens Age Society v Day to which Miss Rose, on the Respondent's behalf, referred. One cannot jump from the fact that an authority or fact or argument in a Tribunal's decision is not specifically mentioned to the conclusion that it was not in the Tribunal's mind.

Looking at the Morse case, at paragraph 41, it says:

"Firstly, the Tribunal must decide whether the provisions of section 6(1) and 6(2) impose 5.6(1) duty on the employer in the circumstances of this particular case".

There is no need here to develop that because there was common ground. Then paragraphs 42 and 43 say this:

"If such a duty is imposed the Tribunal must next decide whether the employer has taken such steps as it is reasonable in all the circumstances of the case for him to have to take in order to prevent the section 6(1)(a) or 6(1)(b) feature having the effect of placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled".

Paragraph 43 continues:-

"This in turn involves the Tribunal enquiring whether the employer could reasonably have taken any steps including any of the steps set out in paragraph (a) to (l) of section 6(3). The purpose of 6(3) is to focus the mind of the employer on possible steps which it might take in compliance with its section 6(1) duty and to focus the mind of the Tribunal when considering whether an employer has failed to comply with a section 6 duty".

The Tribunal, as it seems to us, as we already shown from citations, gave full consideration to the taking of reasonable steps.

Then, in paragraph 45, Morse says:

"If, but only if, the Tribunal (having followed these steps) finds that the employer has failed to comply with the section 6 duty in respect of the disabled applicant does the Tribunal finally have to decide whether the employer has shown that its failure to comply with its section 6 duty is justified.

Well, that stage, of course, only arises if the section 6 duty is not complied with and here it was held that it was and so that did not fall for consideration.

21. It is important that references to authorities in Tribunal decisions do not become incantations that come to be recited for formal compliance reasons. If that becomes the case then one risks the citations becoming meaningless, with attention being more paid to language than to substance. Here, as it seems to us, the reverse is the case. The substance of both the statute and the relevant authorities were, in our view, paid full respect by the Tribunal in its decision even though the authority was not in terms mentioned. We detect no error of law in this part of the notice of appeal either.
22. In his written skeleton Mr Ian Wilson of Messrs Dean Wilson Laing, Miss Humphreys solicitors, makes a number of further points and the first is this:

"The Employment Tribunal have failed to give any weight to the failure to obtain an up-to-date medical assessment despite a specific recommendation to the Respondent that they should do so. This failure was found justifiable as a slip up, (paragraph 26) thus demonstrating the Employment Tribunal's failure to understand the burden upon the employer".

23. It will be remembered that on the 17^th June 1997, Dr Williamson had suggested that there should be a follow-up assessment in 12 weeks time, namely on the 9^th September 1997. At that stage, as we mentioned earlier, Miss Humphreys was off sick so the follow-up assessment never took place. What the Tribunal said on that subject was this:

"It was said that she suffered discrimination in that no follow-up medical assessment was made. This is rejected. The definition of discrimination in 5(1) says: "For a reason which relates to the disability. There was no evidence to suggest that the failure to carry out a follow-up assessment was for a reason relating to the disability. There was nothing to suggest that the failure was due to any other reason than an administration slip-up which could be well understandable bearing in mind her absence from work in September. There was nothing to suggest that by reason her alleged disability Miss Humphreys had been singled out not to have a follow-up assessment or that she had been treated "less favourably than others in this respect".

24. There is no suggestion that the follow-up would have thrown up any more useful light on Miss Humphreys' condition or ability or disability. It is not either said that she herself required a follow-up but had been refused it. It is, our view, quite unrealistic to visit a minor administrative slip-up of no significant consequence with all the incidents of disability discrimination. We have no reason to regard the Employment Tribunal's reaction to this part as representing any error of law.
25. The next specific head of argument in the skeleton has needed to be amended in the course of the morning and it now reads as follows:

"In the case of a disabled person to justify dismissal because they were "not prepared to accept such clerical posts as were available" demonstrates the Tribunal's failure to understand the mischief at which the act is aimed and is not a purposive approach to the provisions of the act".

The Tribunal, it must be remembered, concluded; with our emphasis:-

We are satisfied that in this interim period, prior to completion of the reorganisation, the jobs that were offered were the only reasonable adjustment that the Respondents could have made.

The Tribunal then went on to hold, as Miss Humphreys complains of:

We find that the dismissal was justified in that Miss Humphreys had refused all reasonable adjustments and there was no other reasonable alternative.

26. But the Tribunal there is saying, in effect, that there was no other reasonable alternative in the sense that there was none available unless unreasonable steps were taken, for example, by dismissing other people or, presumably, going against the budgetary restraints which had been imposed upon them. In those circumstances their conclusion that there was no other reasonable alternative was a conclusion open to them and it cannot be said, in the circumstances, to have been a perverse decision. It is to be remembered too, that section 6(7) requires that nothing in the Act leads to a disabled person being able to demand to be treated better than persons who are fully able.
27. Mr Wilson argues strongly that the Disability Discrimination Act casts upon the Tribunal not the conventional approach used in adversarial cases (including racial discrimination and sexual discrimination cases) but what he calls a pro-active and inquisitorial role. That, he says, is what the Morse authority required. We do not read the case in that way. True it is that the Tribunal has to make up its own mind. The reasons that are given to it by the employer for the way in which the employer acted are to be objectively considered and not simply viewed through the eyes of the employer. But that is not to say that the Tribunal is itself is under some inquisitorial duty. It will normally rely on the material, and only the material which the parties put in front of it. In this area we respectfully adopt the language of the Court of Appeal in paragraph 28 of Mensah v East Hertforshire NHS Trust [1998] IRLR 534. It would have been a change of the utmost significance if the case were to be that in disability discrimination, unlike all other employment litigation, the employment Tribunal should be under a duty itself to enquire into factual possibilities not opened up by the parties and to follow-up matters beyond the distance that the parties themselves choose to go. That it may sometimes be desirable that they should do so is plain and is as the Mensah case points out, but to say that the Tribunal was to be under a duty so to do would be so radical a step that one could reasonably expect clear statutory language if it were to be required. None is to be found, nor, in our view, does the Morse authority impose such duty (even if, as may be doubted, it would be possible for such an authority to impose a duty where the statute had chosen not to). Morse, properly understood emphasises, in this area of enquiry, that it is an objective test that has to be employed. It is not right simply for the Tribunal to accept the employer's reasons. On this point of the argument Morse does not go any further than that; it certainly does not cast upon the Employment Tribunal some invariable inquisitorial duty.
28. On a number of other points, Mr Wilson, in our view, falls foul of the other limb of Lord Russell's dictum in Retarded Childrens' Aid Society to which we have already made reference. He falls foul, in our view, of the injunction that one should not take a fine tooth comb to draw through an Employment Tribunal's reasons. Many of his arguments, were as Mr Sanderson rightly pointed out in the course of the hearing, points more of draughtsmanship than content.
29. If we look at the content of the decision, standing back for a moment and having regard to the requirements of the Act, we see that the Act was plainly understood; there is no confusion as to its requirements in the decision itself and the Code is sufficiently referred to at a number of relevant points. Standing back, as we try to do, we look at the decision as a whole and cannot find any error of law in it. Accordingly, we must dismiss the appeal.