United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THOMAS KIBLING (of Counsel) Instructed By: Messrs Richard Hutchinson & Co Solicitors 36 The Ropewalk Nottingham NG1 5DW
For the Respondents	MISS MELANIE TETHER (of Counsel) Instructed By: Messrs Eversheds Solicitors 11 St James Court Friar Gate Derby DE1 1BT


 


MR JUSTICE LINDSAY (PRESIDENT):

1. On the 4th December 1997 the Appellant, Mr Nicholas Wilson-Wright, lodged an IT1 complaining of unlawful discrimination under the Disability Discrimination Act 1995, of unfair dismissal and of breach of contract. He had been an ambulance technician for the Respondent, the Nottinghamshire Ambulance Service NHS Trust ("the Trust") but his employment, which had begun in 1997, had ended, he said, with a dismissal with effect from the 8th September 1997. With his IT1 were several annexed sheets which spelled out his complaint in some detail; he had been on sick-leave from the 7th August 1996 to the 8^th December 1996. He had returned to work on the 9th December 1996 but after a short period of work down to the 15th January 1997 he then returned to sick-leave on the 17^th January 1997 and was giving notice of dismissal on the 9th September 1997 with effect from the 8th, the notice offering him 12 weeks wages in lieu of notice. He had been told that he might appeal. He claimed to a have a disability within the meaning of the 1995 Act - lateral epicondylitis, popularly known as "tennis elbow" in his right arm - and, he said, for a reason which related to that disability he had been treated less favourably than the Trust would have treated "others to whom that reason does not apply" in that he had been dismissed. The Trust, he said, had also failed in its duty under section 6 of the 1995 Act to make reasonable adjustments.
2. In its IT3 the Trust claimed that Mr Wilson-Wright had been dismissed for "capability"; it claimed to have received medical advice that he would remain unfit for his normal full duties for the foreseeable future and it said that whilst it had sought, it had not been able to find, any suitable alternative employment for him.
3. There was a hearing before the Employment Tribunal at Sheffield under the Chairmanship of Mr R. Lloyd Williams spread over some 4 days between July and November 1998, with the Tribunal returning to the matter for private deliberations in Chambers on the 21^st December 1998. In the course of the hearing the claim for breach of contract was withdrawn but it had been agreed that Mr Wilson-Wright had suffered from a disability within the 1995 Act, namely the lateral epicondylitis he had described.
4. The Tribunal's decision, which was sent to the parties on the 2nd February 1999, was unanimous. Both the claims for unfair dismissal and the claim under the Disability Discrimination Act succeeded. A remedies hearing was left to be arranged. The Tribunal held that it had been well-nigh impossible to make adjustments such as would have enabled Mr Wilson-Wright safely to perform his job. The dismissal was held to be unfair but only to "a very limited extent"; the decision to dismiss him, it was held, had been reasonable but Mr Wilson-Wright should have been given a fortnight to think about it although, as was also held, no suitable vacancy would have arisen for him even if the start of the 12 weeks' notice period had been delayed on that account. Compensation, said the Tribunal, should at most reflect only that extra fortnight's employment.
5. On the 15th March 1999 Mr Wilson-Wright lodged a Notice of Appeal which was then amended on the 16th July 1999. The Trust entered a Respondent's Answer relying chiefly on the grounds upon which the Tribunal itself had relied.
6. Mr Kibling's outline submissions on behalf of Mr Wilson-Wright and his oral argument before us raised four major points, all relating to disability discrimination. A fifth, as to the compensation being only as to "a fortnight at best", was withdrawn in the course of argument. We shall take each of the remaining four grounds in turn.

1. The adjustment issue

The complaint here is that the Tribunal failed properly to consider and apply Section 6 of the 1995 Act. We shall not set out the whole of that very long section but sub-sections (1) and (2) provide as follows:-

"(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 of feature having that effect.

(2) Sub-section (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.".

Sub-sections (7) and (12) provide as follows:-

"(7) Subject to the provisions of this section, nothing in this part is 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; and accordingly a breach of any such duty is not actionable as such".

7. When the duty described in section 6 (1) to take reasonable steps applies the nature of the steps that may have to be taken are illustrated by a series of examples (they are no more than that) set out in section 6 (3), which include allocation of some of the disabled person's duties to another person and the transfer of the disabled person to fill an existing vacancy - see section 6 (3) (b) and (c). Further, section 53 of the Act which authorises and describes the Code of Practice promulgated by the Secretary of State in relation to disability, provides at sub-section (6):-

"(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 current code of practice issued on the 25th July 1996 indicates at its paragraph 4.20 that steps or a combination of steps other than those listed in the Act will sometimes have to be taken. An employer may need to go outside the examples given in section 6 (3).

8. As for transferring the disabled person to fill an existing vacancy, the Code provides:-

"If an employee becomes disabled, or has a disability which worsens so she [sic] cannot work in the same place or under the same arrangements and there is no reasonable adjustment which would enable the employee to continue doing the current job, then she might have to be considered for any suitable alternative posts which are available. (Such a case might also involve reasonable re-training.)"

9. As for "allocating some of the disabled person's duties to another person", the Code provides:-

"Minor or subsidiary duties might be re-allocated to another employee if the disabled person has difficulty in doing them because of the disability. For example, if a job occasionally involves going on to the open roof of a building an employer might have to transfer this work away from an employee whose disability involves severe vertigo".

10. It is against that background of legislation and recommendation that Mr Kibling mounts his argument under this "adjustment issue".
11. We shall assume in Mr Wilson-Wright's favour that the Trust was under a section 6 duty to "make adjustments" as the headnote of section 6 puts it; that was conceded below. Mr Kibling's complaint under this heading is three-fold.
12. First he says that the Tribunal limited its consideration of "adjustment" to the Appellant's own job. More particularly, in relation to the example given at section 6 (3) (c) - transferring to an existing vacancy - the Tribunal, complains Mr Kibling, failed to consider whether the Trust should have transferred Mr Wilson-Wright to the post of Information Officer which was for a time vacant. Miss Tether, for the Trust, says, with some justice, that this complaint is not understood. The Tribunal plainly approached Mr Wilson-Wright's plight on the (conceded) footing that the Trust was under a section 6 duty. The Tribunal say:-

"Were there adjustments which could have been made in this case and in relation to his job? Were there alternatives that could or should have been considered but which were not, or, if they were, could they have been better or more sympathetically considered? Could steps have been taken to re-train the applicant? Might some form of rehabilitative action have resulted in a different outcome or have better assisted the applicant's progress?".

The Trust had not considered alternatives for Mr Wilson-Wright until after February 1997 because until then Mr Wilson-Wright had hoped to return to his original job as an Ambulance Technician but, held the Tribunal:-

"When, however, it did become apparent that such was not going to be the case, the Respondent did then consider alternatives".

As to some forms of adjustments, the Tribunal ruled them out:-

"We accept that it would be well-nigh impossible to make adjustments so as to enable the applicant to better, more easily or more safely perform his usual job, i.e. that of Ambulance Technician, because the physical and hands-on nature of that job would make that difficult if not impossible. We accept that job-sharing would be inappropriate for the reasons given at the hearing".

So far those are forms of alternative relating to Mr Wilson-Wright's original job, but the Tribunal continued:-

"As soon as it became reasonably apparent that the Applicant was not, certainly not in the foreseeable future, going to return to his Ambulance Technician job, the Respondent, in the form of Mr Hinchley and Mrs Langley, did consider alternatives and concluded .... that none were suitable".

"Alternatives" in that context plainly included alternatives beyond mere adjustments to the original job.

13. As for the vacant Information Officer post, which Mr Kibling describes as a six-month temporary contract, the Trust had the 10th July 1997 as the fixed closing date for applicants for that job. By that date the Trust's officers thought it unlikely that Mr Wilson-Wright would go back to being an ambulance man. The Tribunal was critical of the Trust's failure to consider Mr Wilson-Wright for this vacancy but it thought it debateable whether, in July 1997, Mr Wilson-Wright would have opted to transfer to the post, which was less well paid than he had been used to. By September 1997 he would, held the Tribunal, have been likely to have accept such a transfer but, of course, by then the job was no longer available. The Tribunal continued:-

"As far as alternatives in September were concerned, i.e. at the time of dismissal, we can accept the Respondent's evidence in relation to there being no suitable ones. The Respondent dealt carefully with all those in considering what qualifications and aptitudes were needed. Whilst, again, we would have preferred Mr Hinchley and Mrs Langley to have discussed with the Applicant the nature and type of jobs concerned, we can accept from the evidence we have heard that [Mr Wilson-Wright] was neither qualified for those rôles, nor would it have been reasonable to suppose that he could have gained the qualifications, certainly not within any reasonable time-scale, given the injury he had suffered".

This first part of Mr Kibling's argument fails on the facts; both adjustments to Mr Wilson-Wright's existing job and adjustments going beyond that were fully considered by the Tribunal, including the availability of the Information Officer post.

14. Next Mr Kibling complains that the Tribunal failed to follow the sequential steps for ascertaining whether or not there had been a breach of section 5 or section 6 of the 1995 Act as those steps are set out in Morse -v- Wiltshire County Council [1998] ICR 1023 at 1033 g - 1034 c. A number of points need to be made. Useful as the passage is, it is wrong to treat the passage in Morse as if it were a statute; it is only the statute that is required to be considered as if it were a statute. Unless that is remembered there is a danger, where guidance is given in authorities, that courts and tribunals end up construing the authorities rather than the statute. Secondly, the Tribunal naturally did not follow the Morse sequence in the case before them as the first step in that sequence required the Tribunal in question to decide whether or not the employer was under a section 6 duty. That was not in issue in the case; it had been conceded. Next in the sequence in Morse is, in effect, the consideration (in the light of what steps - including those examples of steps in section 6 (3) - the employer could, in the light of also section 6 (4), reasonably have been expected to take and did or did not take) of whether the section 6 duty was failed; see the references to failure in section 5 (2) (a) and (b), sections 5 (4), 5 (5) and 5 (6). In the case at hand the Tribunal did that by examining a number of possible steps which could have been regarded as useful adjustments to be made to Mr Wilson-Wright's original job and considered also other steps including job-sharing, rehabilitation, transfer to some other post and re-training by way of gaining fresh qualifications. There is no hint of any adjustment which should, in practical terms, have been considered but which was not. The Tribunal having, in effect, found there was no failure to perform any section 6 duty (with the possible exception of due consideration of the Information Officer post), the next Morse stage (whether the failure was justified) never arose. In other words, as Miss Tether argues, such of the sequential stages which Morse describes as were appropriate were sufficiently respected by Mr Lloyd Williams and his colleagues.
15. Third and last of the sub-headings under Mr Kibling's "adjustment issue" argument is an argument that the Tribunal found that there had been a breach of section 6 in that the Tribunal itself, runs the argument, had held that rehabilitation was insufficiently considered by the employer. "Rehabilitation" is a word which, more than most, is likely to be given different meanings by different people in different circumstances. The way in which the word is used in section 6 (3) (f) suggests that it is different from assessment or treatment but is a matter for which absence during working hours could be expected to be granted. The usage in paragraph 4.20 of the Code is to the same effect. The Tribunal appears to use rehabilitation in a different sense where they say:-

"Rehabilitation might take another form, namely putting him into some other sort of rôle, a quieter rôle, keeping him interested and occupied until such times as he felt well enough to go back to his normal duties".

Speaking of rehabilitation in that sense the Tribunal continued:-

"We were not convinced that the Respondent had given as much attention to this question as was suggested."

It is that passage upon which Mr Kibling bases his argument. However, in the very next sentence the Tribunal continues:-

"Having said that , there was no firm evidence from the Applicant to suggest that there was much in the way of available tasks that was safe and sensible for him to do in the light of the medical evidence".

If, therefore, one takes rehabilitation in the sense in which the Tribunal was using it - putting Mr Wilson-Wright into some other sort of rôle, a quieter rôle, keeping him interested and occupied until such time as he felt well enough to go back to his normal duties - the Tribunals' conclusion as a whole represented a conclusion that rehabilitation in that sense was not a practical step. That it was considered by the Tribunal is plain not only from the citation we have just referred to but from the earlier question which the Tribunal had framed, in the passage already cited, namely:-

"Might some form of rehabilative action have resulted in a different outcome or a better assisted the Applicant's progress?".

If, instead of taking rehabilitation in that sense, one takes it a sense consistent with its usage in section 6 (3) (f) and the Code, it had been accepted by Mr Wilson-Wright at the hearing below that he was unable then to carry out his normal range of duties and that it was likely that he would have been unable to do so in the foreseeable future. There had been no suggestion, it seems, in the medical evidence, that were he to be allowed to be absent during working hours for some process that could be described as rehabilitation it would have made any difference to that continuing inability. The Tribunal said:-

"The medical evidence gave no clear time-scale for a return to work and never once suggested that light work should be given to further his rehabilitation or assist his progress".

Whatever meaning is given to the difficult word "rehabilitation", we cannot see that the Tribunal held that there had, in respect of rehabilitation, been a failure to comply with any duty arising under section 6.

16. Looking, then, to all the arguments raised under this broad heading of "the adjustment issue", we find no error of law in the Tribunal's reasoning. We therefore turn to the next heading in Mr Kibling's argument.

2. The Code of Practice issue

17. The complaint here is that a Tribunal should not only have regard to the Code of Practice but is at fault in law if it fails expressly to refer to it in its decision. The submission is based upon an unjustified extension of the remarks in Ridout -v- TC Group [1998] IRLR 628 EAT as to which, in rejecting the argument, we adopt the reasoning in Heinz -v- Kenrick [2000] IRLR 144 EAT at 149, paras 38 and 39. As to whether, despite its appearing to the Tribunal to be relevant to a question arising in the proceedings, the Tribunal failed to take into account any provision of the Code - see section 53 (6) supra - that, whilst alleged by the Appellant, is not substantiated. The Appellant has failed to point to any provision of the Code which should have been regarded as relevant but which can be seen to have been overlooked by the Tribunal.
18. In our view the Code of Practice issue fails to identify any error of law.

3. The perverse finding issue

19. One of Mr Wilson-Wright's complaints in his witness statement of the 31st March 1998 (thus a statement made some 14 weeks or so before the hearing began) was that as the Trust had not provided to him details of what vacancies had existed at various times he could not usefully deal with the issue of whether the Trust had considered as fully as it should have done his potential as candidate for such vacancies as had arisen. However, by the time of the hearing the Trust had given details of particular vacancies and the applicable respective closing dates for each. The Tribunal heard evidence as to the nature and duties of the various jobs and of how far, if at all, Mr Wilson-Wright had been considered as a suitable candidate for them. In a passage we have earlier cited the Tribunal concluded, in relation to September 1997:-

"As far alternatives in September were concerned, i.e. at the time of dismissal, we can accept the Respondent's evidence in relation to there being no suitable ones".

The Tribunal had earlier said:-

"From July onwards the Respondent looked to consider what, if any, alternatives lay open to the Applicant insofar as redeployment was concerned. According to Mr Hinchley and Mrs Langley and, for that matter, Ms Playle, no suitable vacancies were available".

Mr Kibling argues that, as, he says, there were posts such as Clinical Audit and Research and Development Officer and Development Officer vacant during Mr Wilson-Wright's notice period the finding of no suitable vacancies in September 1997 was perverse. It is a submission which overlooks three things. First of all, the Tribunal did not hold that there were no vacancies but that there were no suitable ones; they plainly had heard some evidence both as to posts and as to suitability and it cannot be said that their conclusion was reached without any evidence to support it. Secondly, the Tribunal concluded, as Miss Tether reminds us, that the Respondent had dealt "carefully" with the questions of what qualifications and aptitudes were needed for the alternative jobs. Again it cannot be said that there was no evidence upon which the Tribunal could have concluded as it did. Thirdly, we do not have Chairman's Notes of Evidence; it is quite impossible for us to hold that the conclusion which the Tribunal reached was one which no tribunal properly instructing itself on the evidence which it had heard could have reached as we have no adequate indication of the totality of the evidence which the Tribunal heard. In our view the Appellant identifies no error of law under this "perverse finding issue".

4. The conflation issue

20. Mr Kibling here raises an issue under the familiar dictum in Meek -v- The City of Birmingham [1987] IRLR 251 CA in relation to the giving by Tribunals of their reasons. Bingham LJ there says:-

"The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, [the Court of Appeal] to see whether any question of law arises ...".

Mr Kibling's argument here runs as follows: section 5 (1) and (2) of the Disability Discrimination Act describe two discrete forms of discrimination. Section 5 (1) is as to unjustified less favourable treatment, section 5 (2) is of unjustified failure to make adjustments in breach of a duty to do so. Both complaints were raised, says Mr Kibling, as, indeed, they were. The Tribunal, however, he continues, treats them merely as one. It speaks of "the Applicant's claim" succeeding; it describes Mr Wilson-Wright's contentions "insofar as his claim is concerned". It speaks of "the claim" under the 1995 Act, each of these references being plainly to a singular form of claim. The Tribunal thus, he says, wrongly conflated two separate claims and, referring back to the dictum in Meek supra Mr Wilson-Wright is left, he says, not knowing whether each discrete claim has been lost or won.

21. So to argue is in our view to be hypercritical. On a fair reading of the decision Mr Wilson-Wright could readily see that he had succeeded under section 5 (1) of the Act in that he was held to have been in an unjustified way treated less favourably within the provisions of section 5 (1) (a) in that he was not given "the opportunity of properly discussing [the] information officer's job". The Employment Tribunal held (with our emphasis):-

"To that extent therefore, the Applicant was less favourably treated on account of his disability than would someone else in a similar position".

Those last words, were not as close, perhaps, as they should have been to, but were plainly intended as shorthand for, the wording of the comparative referred to in section 5 (1) (a).

22. As for section 5 (2), it had been conceded that the employer, the Trust, was under a section 6 duty but (with one possible exception) no breach of that duty was found. It is true that the Tribunal do not in terms say that they found no breach of the section 6 duty but they carefully examine a number of steps which the Trust might have taken or considered in order to lift from Mr Wilson-Wright the substantial disadvantage at which he was placed and the Tribunal, for the reasons they gave, found (with one possible exception) none to have been both appropriate and left undone. The one possible exception is the failure to give Mr Wilson-Wright the opportunity we have mentioned in relation to the Information Officer's job. Why Mr Wilson-Wright lost those other aspects of his complaint is set out sufficiently well to satisfy the Meek requirement. However, it is not significant whether the Information Officer shortcoming was seen by the Tribunal as being an unjustified breach of section 6 (and hence grounding a complaint under section 5 (2) (a)) as it was, as we have already noted, held to ground a claim under section 5 (1) (a). So far as concerns remedies under section 8 it matters not whether a particular factual form of discrimination is describable as a breach of one sub-section or of two. Thus we find no error of law under this heading.

5. Conclusion

23. We have now dealt with all Mr Kibling's submissions on behalf of Mr Wilson-Wright. We have detected no error of law in the Tribunal's reasoning and we must therefore dismiss the appeal. It has to be remembered, though, that Mr Wilson-Wright did succeed under the Disability Discrimination Act. There was no cross-appeal and nothing we have said detracts from that success; it remains the position that he was accepted as disabled and that, to the extent which the Tribunal described, he was, for a reason which related to his disability, treated less favourably than would have been someone to whom that reason did not apply. He was therefore, as the Tribunal itself described, entitled to go forward to a remedies hearing, which it will now be for the Employment Tribunal to convene.