United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR F IRONS (Representative) Employment Law Services Glebe House 10 Vicarage Meadows Dereham NR19 1TW


 


JUDGE CLARK

1. This is an appeal against the decision of the Abergele Employment Tribunal, sitting over 4 days with a further day's deliberation in chambers, by the Applicant Mrs Williams. The Employment Tribunal's decision was promulgated with extended reasons on 8 February 2001.

Background

2. The Appellant was born on 15 April 1975. During her teenage years she developed an eating disorder, a phobia about vomiting, avoided school and underwent psychotherapy at the age of 17. The first Respondent Council's Occupational Physician, Dr Zacharius, in a report dated 3 April 2000, described these symptoms as being consistent with a severe degree of underlying anxiety in her personality.
3. She commenced employment with the Council on 17 October 1994 and remained so employed until her dismissal effective on 30 September 1999. She worked as an Administrative Assistant in the Debtor's Section of the Council's Finance Department, a member of a team of 7 people. Her Manager was Paul Tharme, the second Respondent, and Mr Martin, the third Respondent, was Chief Financial Services Officer.
4. During the first 5 years of employment, until April 1999, the Appellant had 10 days sick leave. These absences did not cause the Respondents any concerns. They were uncertificated.
5. However, following absence on 4-5 May 1999, she went off sick on 24 May 1999 and sent a sick note citing depression and anxiety. The following week a 4-week certificate was sent in referring to weight loss/nausea, which was under investigation.
6. Thereafter, Dr Zacharius became involved and he in turn introduced the Appellant to a psychologist, Sarah Harris. The detailed events which followed are faithfully recorded in the Employment Tribunal's findings of fact at paragraph 4 of their reasons.
7. Attempts to organise a full return to work failed. Whilst off sick the Appellant was married on 10 July. Mr Tharme, among others, attended the wedding.
8. On 27 July the Appellant came into work. She spoke to colleagues and showed off her wedding photographs. That morning a meeting took place between the Appellant and Mr Tharme. He raised with her an apparent contradiction, as he saw it, between her being able to go into the town and appear to be well at her wedding, whilst apparently being unable to attend work. He also pointed out that her colleagues were having to work longer hours in order to cover her absence. However, contrary to the Appellant's evidence, the Employment Tribunal found that no mention was made by Mr Tharme of her being guilty of gross misconduct.
9. On 29 July she saw Dr Zacharius. He saw no prospect of her returning to full time work in the short or medium term. He suggested a career break of 6-12 months.
10. Concerned as to the impact of the Appellant's absence on the running of the Department and on other staff members Ms Parkin, Personnel Officer, wrote to the Appellant on 2 August advising her that a formal meeting would be held to consider her continued absence, at which time her continued employment with the Council would be under consideration. That hearing eventually took place on 27 August. She did not attend, due to illness, but was represented on that occasion by her Trade Union Official, Tom Price.
11. Meanwhile, on 24 August, the Appellant submitted a grievance about Mr Tharme's treatment of her on 27 July.
12. At the meeting held on 27 August the prospects for the Appellant's return to work were discussed. Mr Price said that she did not want to return to her old Department under Mr Tharme's management.
13. On 31 August Mr Martin wrote to the Appellant asking her to contact his secretary to deal with her grievance. The grievance was not, in the event, dealt with.
14. On 1 September Mr Martin wrote to the Appellant again, terminating her employment on grounds of incapacity, with effect from 30 September. He said that her position would be reviewed if she was able to return to work. She was also advised of her right to an internal appeal.
15. On 4 September her representation was taken over by Mr Frank Irons, an Employment Consultant. He wrote to the Respondent contending that the Appellant was a disabled person within the meaning Section 1 of the Disability Discrimination Act 1995 and put forward the following proposal:

"(a) she would return to work the following week, or the week after, as the case may be, on a part time basis 20 hours per week.

(b) that the part time element would last for no more than six weeks; in particular her goal was to return to full time work as soon as possible.

(c) that she did not wish to work in her old job nor have any line management contact with Paul Tharme.

(d) (Mr Irons) said he felt they were reasonable adjustments, particularly item (c), for reasons which he said were evident.

(e) (Mr Irons) also notified the Respondents that the (Appellant) intended to appeal."

16. Mr Martin replied. He was unhappy with the Appellant's condition that she should not return to her old position. Nevertheless, on 17 September Ms Parkin sent the Appellant a list of vacancies. The Council was also insisting on a certificate of fitness to work. Mr Irons' position was that he required suitable proposals for her return before she could be fit for work.
17. On 7 October Mr Irons submitted an appeal on behalf of the Appellant and on 15 October the Chief Personnel Officer replied, stating that, if her appeal was successful, the Appellant would be reinstated into her old job. That was not acceptable to the Appellant or her representative and the appeal was withdrawn.

The Complaints

18. By her Originating Application (later amended) the Appellant raised the following heads of claim:

(1) Breach of contract

(2) Unfair dismissal

(3) Both direct and indirect unlawful sex discrimination

(4) Disability discrimination under both Section 5 (1) and 5 (2) of the 1995 Act.

A further complaint of unlawful deductions from wages was resolved by agreement between the parties.

The Employment Tribunal's decision

19. It is convenient to summarise the Employment Tribunal's determination under each of the above heads of claim:

(1) Breach of contract

This claim was dismissed on withdrawal.

20. (2) Unfair dismissal

The Employment Tribunal accepted that dismissal was for a potentially fair reason, capability. However, they found that the dismissal was unfair. The Council acted prematurely. The Appellant's grievance ought to have been dealt with before her dismissal. Dr Zacharius ought to have been contacted again for his current medical opinion.

21. However, the Tribunal went on to find that such enquiries would only have postponed dismissal, it would not have altered the decision to dismiss.

    In these circumstances they found that dismissal would have been postponed for one month. The issue of remedy for unfair dismissal was adjourned.

22. (3) Sex Discrimination

(a) Direct Discrimination

The thrust of the Appellant's claim under this head was directed to the meeting with Mr Tharme on 27 July. The Employment Tribunal found that nothing untoward happened at that meeting. Mr Tharme treated the Appellant on that occasion in the same way as he would treat any employee who had been absent sick, in the circumstances of this case, whether male or female.

There was no less-favourable treatment of the Appellant on the grounds of her sex.

23. (b) Indirect Discrimination

It was the Appellant's case that more women suffered from anxiety, depression and disabling phobias than do men and that affected the operation of the Council's sick absence policy.

24. Having considered the ingredients of Section 1 (1)(b) of the Sex Discrimination Act 1975, the Employment Tribunal were not persuaded.

    (i) That disparate impact had made out or

    (ii) That the Council imposed a material requirement or condition to the Appellant.

    Accordingly, both limbs of the sex discrimination claim failed.

25. (4) Disability Discrimination

The Council finally conceded that the Appellant was a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995. Her claim was put in two ways. First, that the Council had treated her less-favourably under Section 5 (1) in dismissing her; secondly, that they failed to make reasonable adjustments under Section 6, thereby discriminating against her for the purposes of Section 5 (2), in refusing to redeploy her from her old Department under the management of Mr Tharme.

26. As to the Section 5 (1) complaint, the Employment Tribunal found that there was less-favourable treatment of the Appellant, as understood following the Court of Appeal decision in Clark v Novacold [1999] IRLR 318, but that such treatment was justified, applying Section 5 (3) of the Act.
27. Dealing with the Section 5 (2) complaint, the Employment Tribunal found that there was no failure on the part of the Council to make reasonable adjustments under Section 6 of the Act. In particular, it was not reasonable to expect the Council to redeploy the Appellant to a different department in the absence of any medical evidence to suggest that she could not work in her old department under Mr Tharme.

Accordingly, both limbs of the disability discrimination claim also failed.

The Appeal

28. (1) Unfair Dismissal

Whilst accepting, of course, the finding of unfairness, Mr Irons complains that the Tribunal made findings on what is commonly referred to as the Polkey point, that is whether, given a proper procedure, a fair dismissal would or might have followed, without giving the parties an opportunity to lead evidence or make submissions on the point, at what was essentially a liability hearing.

29. This is a not uncommon error by Employment Tribunals in our experience. It is fair to say that no argument on the point is recorded by the Employment Tribunal in their summary of the advocates' submissions at paragraphs 5-6 of their reasons.
30. In these circumstances we shall allow this point to proceed to a full hearing. For that purpose we shall direct that the Appellant, either herself or by her representative, puts the point on affidavit within 28 days of today. A copy of that affidavit will be sent to both the Chairman and the Respondent for comment. The Respondent will respond, if so advised, by affidavit, 28 days after receipt of the Chairman's comments.
31. (2) Sex Discrimination

    First, Mr Irons submits, that the Tribunal was wrong to find that there was no less favourable treatment of the Appellant on the grounds of her sex in the interview conducted by Mr Tharme on 27 July. He points in particular to Mr Tharme's use of the description of the Appellant as a "calm Bride" and submits that a man who had just been married would not be described as a "calm Groom".

32. We are not sure that that is a realistic distinction. However, it is not for us to find the facts. The Tribunal have made a clear finding that Mr Tharme would have treated any employee with the same history of absence, whether male or female, in the same way as he treated the Appellant on that occasion.
33. We can see no grounds for interfering with that finding of fact and consequently we reject the appeal against the finding that there was no direct sex discrimination.
34. So far as indirect sex discrimination is concerned, Mr Irons submits that the Tribunal simply failed to come to grips with the way in which the case was being put on behalf of the Appellant. His case was that the requirement or condition applied to the Appellant was that, as soon as it appeared she was suffering from a form of mental illness she was immediately put onto the sickness absence procedure fast-track. It was his case that this practice impacted disparately on women when compared with men.
35. In order to make good that case, it seems to us, it was necessary for him to lead evidence to show the number of employees who were fast-tracked in this way since the Council introduced this particular procedure in about 1996. The statistical evidence which he obtained from the Council dealt only with dismissals following that procedure being used. It did not identify all employees who were fast-tracked in the same way as the Appellant under the policy from 1996 until the date of her dismissal.
36. Proving discrimination is never an easy matter. However, the onus of showing disparate impact lies on the Applicant. Mr Irons tells us that he did not pursue an application to the Tribunal for disclosure against the Council, in relation to what, it seems to us, were the relevant figures for the purpose of carrying out the proportionality exercise.
37. In these circumstances we can see no grounds for interfering with the Tribunal's decision, that the claim of indirect sex discrimination was not made out.<
38. (3) Disability Discrimination

The appeal hinges on the Tribunal's finding at paragraph 11 of their reasons, that the Council was not in breach of the requirements of Section 6 of the 1995 Act, taking into account the Code of Practice. In particular, the adjustments which were contended for as being reasonable by and on behalf of the Appellant, were first a phased return to work and secondly a return to work in a department other than that in which she had originally worked under Mr Tharme.

39. The Tribunal found as fact that the Council made a phased return to work available throughout the period prior to the Appellant's dismissal. Mr Irons has sought to challenge that finding of fact by reference, among other things, to a passage in Mr Tharme's witness statement in which he said this:

24. "I did not mention a phased return to work at this stage, that is 27 July, as based on the Appellant's actions over the previous 4 weeks I expected her to make a full return to work with effect from the following Tuesday. This was strengthened by her offer to return to work a day earlier than scheduled as well as her failure to request a phased return."

40. From that Mr Irons asks us to infer Mr Tharme was not prepared to permit her to return to work in a phased way. That is not how we read that paragraph but more to the point we are not a Tribunal of fact. We see no basis for a challenge to the clear finding made by the Tribunal to which we have referred.
41. Secondly, he challenges the further point that it would not have been a reasonable adjustment to transfer the Appellant to work in a location away from Mr Tharme's department.
42. The Tribunal reached that conclusion on the basis that they found there was no medical evidence that the Appellant's disability prevented her from working under Mr Tharme. That appears to be accepted by Mr Irons in the course of his submissions. He argues that it was for the Respondent to negative any such link. We disagree. It seems to us that, if it was the Appellant's case that it would be medically harmful for her to return to work in Mr Tharme's department, at the very least that ought to have been put to Dr Zacharius in the course of evidence. That was not done.
43. Again, it seems to us that the findings of fact by the Tribunal cannot be disturbed on appeal in circumstances where our jurisdiction is limited to correcting errors of law only. The main challenge to the Tribunal's findings on disability discrimination consequently must fall. Without a breach of Section 6 there can be no breach of Section 5 (2) of the Act and so far as the complaint under Section 5 (1) is concerned, Mr Irons accepts the Tribunal's finding as to justification, subject only to his point on Section 6 of the Act, which has failed.<

Conclusions

44. It follows that we shall dismiss all grounds of appeal, save for what we have described as the Polkey point. That matter will proceed to a full hearing with the directions that we have already given. Additionally, we shall list the case for a two-hour hearing, Category C. There will be an exchange of skeleton arguments between the parties, not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with the Employment Appeal Tribunal at the same time.