United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P K THOMPSON (Solicitor) Dibb Lupton Alsop Solicitors Victoria Square House Victoria Square Birmingham B2 4DL
For the Respondent	MR N GRUNDY (of Counsel) Messrs Lawford & Co Solicitors Oxford House 16 Oxford Street Manchester M1 5EH


 


JUDGE COLLINS CBE: This is a case which we have found rather troubling because of the position of the respondent. Mrs Sampson was 60 last September and has now passed the date on which she would have ordinarily retired from the Abbey National, had she continued to be employed. She was dismissed because of her ill health on 19th December 1998. The proceedings were heard by the Employment Tribunal in Leeds, on 28th and 29th October 1999, their extended reasons being promulgated on 12th November 1999. The matter came before this tribunal on a preliminary hearing on 10th March 2000. We are here today on 12th January 2001. I hasten to say that there is no criticism of anybody because of the length of time that it has taken for the matter to be resolved, but if the consequence of the decision which we reach this morning is that the case has to be remitted to the tribunal for further findings of fact, the additional strain on Mrs Sampson, who is a person who has undoubtedly suffered for many years from clinical depression and who is recognised to have a clear disability by the tribunal, is extremely regrettable. In that eventuality we would certainly urge the parties to consider whether on humanitarian grounds some amicable compromise of the proceedings could not be achieved rather than by submitting Mrs Sampson to many more months, if not longer, of further litigation. But having said that, that must be a matter for the parties and not for us.

1. The brief history, recorded in the Employment Tribunal's decision, is that Mrs Sampson had originally been employed by the National & Provincial Building Society from October 1977. Because she had trouble in dealing with numbers she had been in a job which she enjoyed, dealing with deeds, but when the National & Provincial merged with the Abbey National in August 1996 the deeds department was transferred to Milton Keynes while Mrs Sampson remained working in Bradford. Contrary to her expectations, she was not made redundant. From about that time she began to suffer increasing episodes of depression until on 6th May 1997, very shortly after the final move of the deeds department to Milton Keynes, she was off work because of illness and never returned. She was paid company sick pay for longer than she was entitled under the company's scheme and was finally dismissed in December 1998.
2. She commenced proceedings for unfair dismissal under the Disability Discrimination Act 1995 citing her dismissal as the discriminatory act on which she relied, and also on the ground of redundancy. Her claim that she was dismissed by reason of redundancy was dismissed by the tribunal and no appeal is made in relation to that. However, the tribunal held that she had been discriminated against because of her disability; they held that she had been unfairly dismissed; and it is in relation to those findings that the employers appeal. Subsequently there was a remedies hearing at which she was awarded £9,000 as compensation for the injury to her feelings, because of the manner of her dismissal, and with the inclusion of that sum, she was awarded total compensation of £18,439. But there had been a reduction of 90% in the pecunary element of the compensation on the ground that the tribunal held that there was only a 10% chance that she would in fact have returned to work. A cross-appeal has been lodged against that on which for reasons which will be apparent we have as yet heard no argument.
3. It seems to us that the central issues in the case were factual, revolving around what the employers did in order to alleviate the problems which were caused by Mrs Sampson's disability. I refer to the Disability Discrimination Act 1995, section 5:

"(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."

Section 6 deals with the employer's duty to make adjustments:

"(1) Where-

(a) any arrangements made by or on behalf of 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 have to take in order to prevent the arrangements or feature having that effect."

Subsection (3) provides examples including at (c) "transferring him to fill an existing vacancy" or at (e) "assigning him to a different place of work".

4. In our judgment, whether the case involves looking for justification in relation to section 5(1) or whether or not the employers have complied with their section 6 duty to make adjustments, involves looking at the same set of facts. In this case, the essential questions of fact were whether or not the employers took reasonable steps in all the circumstances of the case to find Mrs Sampson work that she could do. I ought to mention that as well as being diagnosed as having moderately severe clinical depression she also suffered from, to use the words of Professor Collings who reported in July 1999:

"… specific difficulty with numerical operations coupled with a significant weakness in working memory."

He said that she was well below average for her age group with regard to mental arithmetic and written arithmetic skills. It ought to be made clear that her difficulties with numeracy and arithmetic were not found by the tribunal, so far as we can tell, to be a separate impairment but was plainly a matter which either exacerbated or was exacerbated by what was found to be an impairment, namely her clinical depression.

5. When one turns to the decision of the tribunal to see how these essential questions of fact were dealt with, one finds an exposition of the facts beginning at paragraph 2 of the extended reasons. At 2(d), when dealing with the situation immediately after the transfer of the deeds department to Milton Keynes, they say:

"The respondent was offered work of a clerical nature in the payments collection department for the same pay and status as before but because of her stated difficulty with figures her currency duties were to be done by somebody else. The position was to be reviewed after a month. On 6 May 1997 the applicant ceased work and began receiving sick pay. It is accepted that she was suffereing from depression and that one reason was unhappiness at work and lack of confidence in her ability to do the new job that was offered. …"

Pausing there for a moment, there is no assessment by the tribunal of whether or not she was competent to do the new work that was offered, or whether there were steps which the employer could have taken to bolster her confidence in that particular job. At 2(e) the tribunal say:

"The respondent's personnel operations department kept in touch with the applicant and visited her to ascertain the chances of her returning to work. … The applicant an alternative post that she felt she could manage but investigation showed that that post had changed considerably and both parties agreed it was no longer suitable. Two alternative posts were offered to the applicant which the applicant felt were not comparable in status or interest. …"

Pausing there and to return to the medical evidence that was before the tribunal; Mrs Sampson's medical practitioner, Dr Dixon, had written to the Abbey National on 14th August 1997, a few months after she went sick and said this, among other things:

"It does seem as though working with numbers is her main problem, therefore, if she could have a job which did not involve work with numbers, as I understand was the case in her previous job, I think she would cope."

6. It is very likely to be the case, although it is not specifically articulated in the tribunal's reasons, that the two jobs which were mentioned in paragraph 2(e) of the reasons as being posts which she felt were not comparable in status or interest were offered to her after that letter from Dr Dixon, but there is no information at all in the tribunal's reasons or in any of the papers before the court, as to whether those jobs complied with the condition which Dr Dixon suggested, namely, jobs which did not involve work with numbers. If those jobs did involve work with numbers then it quite easy to see, in all the circumstances of the case, why Mrs Sampson would have declined to take them. If they did not involve work with numbers, then the mere fact that she felt that they were not comparable in status or interest would plainly not be sufficient justification for her refusing to accept them. What is regrettable in this case is that there are no findings of fact as to the content of those jobs and in those circumstances, it does not seem to us that there is any material on which we could come to the view, one way or another, as to whether or not the respondents had taken such steps as was reasonable in all the circumstances of the case to prevent the working arrangements being less favourable to Mrs Sampson than they would have been to a person who did not have a disability. We simply do not know the content of the alternative posts that were offered. It would be as unfair to one side as to the other for us to draw any inferences without the basic material.
7. The absence of findings of fact means that we are neither in a position to say whether the employer made reasonable adjustments, nor whether the employer's dismissal of Mrs Sampson was justified. There is ample authority, to which I need not refer for the purposes of this judgment, that long-term disability, because of ill health, is a sufficient ground for dismissing an employee, provided that an employer acts reasonably in all the circumstances. The unfairness of any dismissal is plainly related very closely to whether or not a dismissal for disability is justified under section 5 of the 1995 Act. If reasonable offers of alternative employment had been made to Mrs Sampson and she had unreasonably rejected them, then it seems to us strongly arguable that the employers would have been justified in dismissing her and also, provided they complied with all the requirements of procedural fairness, that they would have acted reasonably in dismissing her. We do not have to look more closely to the consequences for the purposes of this judgment.
8. For the reasons which I have endeavoured to indicate, we find ourselves unable to say, on the basis of the material which we have, whether the basic facts were such that the employers were entitled to act in the way that they did. There are certainly hints to be derived, looking closely at the some of the observation of tribunal, that the employers acted responsibly. They referred to the fact that the "personnel operations department kept in touch with the applicant"; they referred to the fact that Mrs Sampson was paid sick pay for longer than the company's sick pay scheme required, but we could not possibly draw any clear conclusions in favour of the employers on the basis of those observations.
9. Accordingly, and with the greatest possible of reluctance, we find that we have no alternative but to allow the appeal and to remit the case to the tribunal for further findings of fact in relation to the alternative posts which were offered to Mrs Sampson; depending on those findings of fact, whether the offers of those alternative posts complied with the employer's duty under section 6 of the 1995 Act and whether if they did comply with the employer's duty under the Act whether the employee's refusal to accept the jobs justified the employers in dismissing her for the purposes of section 5(1). Then at the next stage whether the employers acted reasonably in all the circumstances of the case in dismissing her for the purposes of considering the unfair dismissal claim. We think it ought to go back to the same tribunal.