United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


JUDGE PETER CLARK

1. This is an appeal by Mrs Bradley, the Applicant before the Manchester Employment Tribunal, against that Tribunal's reserved decision, promulgated with Extended Reasons on 30 November 1999, dismissing her complaint of unlawful disability discrimination brought against her former employer, the Respondent, Greater Manchester Fire & Civil Defence Authority.
2. At the outset we should record that although the grounds of appeal settled by Counsel who appeared below are extensive, Miss Eady, now appearing on behalf of the Appellant, indicated that her submissions were directed to the Tribunal's rejection of the Appellant's case that she was unlawfully discriminated against contrary to section 5(1) Disability Discrimination Act 1995 and in particular, the Tribunal's conclusion that such discrimination was justified under section 5(1)(b) read with section 5(3) and 5(5) Disability Discrimination Act. It follows that we are not directly concerned with any alleged breaches of the employer's duty to make reasonable adjustments under section 6 of the Act, rendered unlawful by section 5 (2), save insofar as the defence of justification to section 5(1) discrimination imports, by section 5(5), consideration of the employer's failure, without justification, to comply with the section 6 duty. As to the defence of justification Miss Eady takes two discrete points only. In order to consider those submissions and Mr Gilroy's response it is first necessary to outline the material facts as found by the Tribunal.

The facts

3. The Appellant commenced her employment in April 1990 as a Control Room Operator. She sat at a console in the control room, which dated back to the 1970s. The console consisted of a monitor and keyboard, both of which were in fixed positions. Her chair was adjustable. She looked down at the monitor. She wore a headset attached to the console by wires. She worked rotating shifts, 8.30 am to 5.30 pm and 5.30 pm to 8.30 am. She worked for up to three hours at a stretch, dealing with emergency calls, recording them and deploying units to attend incidents.
4. In 1993 she experienced neck problems, causing pins and needles sensation in her wrists. On 1 September 1995 she was involved in a road traffic accident, suffering a whiplash injury which exacerbated her neck problems. She had a prolonged period off work. She was referred to the Respondent's Occupational Health Service.
5. In February 1996 the Occupational Health doctor advised that she should return to light duties. She did so on 12 February. After a while she returned to her full control room duties in March or April 1996.
6. She continued to experience some sequelae from her original accident, but in about June 1997 she was unfortunately involved in a second road traffic accident, which again exacerbated her neck condition. She attended a course of physiotherapy arranged by the Respondent.
7. By December 1997 she had not returned to work and was approaching the end of her full pay sick leave entitlement; she would soon move on to half pay. Her line manager, Ms Drummond, had sought a discretionary extension of full pay to aid the Appellant's recovery, but it then appeared that she was fit for light duties, although not her normal control room duties.
8. On 26 January 1998 she returned to light duties, not involving work at a computer terminal. Her progress was monitored by Occupational Health doctors; she improved slowly.
9. The Respondents were then planning to open a new control room. On 17 June 1998 Dr Almond, the Occupational Health doctor in charge of her case, reported to the Respondent that she was likely to be fit for normal duties in the proposed new control room. Meanwhile she should remain on light duties.
10. On 13 July 1998 Ms Drummond proposed that the Appellant should move to the Statistics Department as a prelude to resuming full normal work. That specific proposal was discussed at a case conference, including Dr Almond, and approved.
11. As a result Ms Drummond met with the Appellant on 26 July and explained to her that her work station in the Statistics Department would be more flexible than that in the old control room and told her that she should not perform any task which might irritate her condition. She was also told that she was under no pressure to complete a set number of tasks.
12. The Tribunal was satisfied, there being an issue of fact, that the Appellant was provided with an adjustable monitor at her request when working in the Statistics Department.
13. In September 1998 she went off work again with neck pain. She did not return to work before her eventual dismissal on 6 February 1999.
14. It seems that, in the period leading up to dismissal, a misunderstanding arose between Doctor Almond and the Appellant's manager, Mr Haslam. On 14 December 1998 Dr Almond reported that if modifications of the Appellant's duties are not possible he did not think that she would be able to undertake a sustained return to work. By modifications, he had in mind the Appellant's need to stand up whenever she felt the adverse effects of being in the sitting position and to take regular breaks. On receipt of that report Mr Haslam, without checking with the doctor, took the reference to modifications to mean alterations to the Appellant's hours of work, which was not possible. Dr Almond, believing that no modifications could be made to her method of working, concluded that it was unlikely that she could continue working in the Statistics Department and would not be able to return to work in the control room, old or new, and therefore recommended ill health retirement. That recommendation was accepted by line management; hence the Appellant's dismissal. The Tribunal found that in December 1998 and January 1999 no consideration was given by the Respondent to making adjustments of the type envisaged in section 6(3) Disability Discrimination Act, such consideration having earlier been given in January 1998 when she first returned to light duties, in June 1998 when she went to the Statistics Department and thereafter from time to time, modifications then having been made.

The statutory questions

15. Rather than simply set out the relevant provisions of sections 1, 5 and 6 Disability Discrimination Act , to which reference should be made, we shall set out the questions under the Act which arose for determination by the Tribunal and are material to this appeal. They are:

(1) was the Appellant disabled within the meaning of section 1 Disability Discrimination Act?

(2) If so, did the Respondent treat her less favourably by dismissing her than others who were not disabled? Sections 5(1)(a) and 4(2)(d). Clark v Novacold [1999] IRLR 318 (CA).

(3) If so, can the Respondent show that the treatment of the Appellant, dismissal, is justified, the onus being on the Respondent to do so? Section 5(1)(b).

(4) In answering the justification question;

(i) has the Respondent shown that the reason for the dismissal is:

(a) material to the circumstances of the case, that is, significant and relevant. Cf Rainey v Greater Glasgow Health Board [1987] ICR 129, and

(b) substantial, that is, more than trivial or minor (Code of Practice, paragraph 4.6) section 5(3) and

(ii) is the Respondent under a section 6 duty owed to the Appellant to make reasonable adjustments? If so, and if he fails without justification (section 5(4) ) to comply with his section 6 duty, then the defence of justification under section 5(3) fails unless dismissal would have been justified even if he had complied with his section 6 duty. Section 5(5).

The Tribunal decision

16. In answer to the statutory questions, the Tribunal found:

(1) that the Applicant was disabled within the meaning of section 1. She had two types of physical impairment; arthritis of the spine and arthritis in her hands and wrists. Those impairments had a substantial adverse effect on three areas of day to day activities; she cannot sit for normal reasonable periods and cannot reach out repeatedly; if she performs the latter movement repeatedly she experiences pain in her neck. Secondly she cannot rely on her grip to carry items for sustained periods. Thirdly, her manual dexterity is substantially affected.

(2) The Appellant was dismissed for a reason relating to her disability. She established less favourable treatment for the purposes of section 5(1)(a) Disability Discrimination Act.

(3) The Respondent established the justification defence under section 5(1)(b).

Justification

17. The Tribunal's reasoning in upholding the justification defence was as follows:

(i) there was substantial and material justification for the Respondent to treat the Appellant's incapacity as a reason to dismiss. They were justified in saying that no modifications which they could reasonably have made would have removed or mitigated the reason for dismissal. The Appellant would not have been able to sustain a return to work, even in the new control room which was eventually opened in September 1999 (Reasons paragraph 71).

(ii) As to the question of modifications;

(a) in the new control room, as with the old, the Appellant was required to wear a headset attached by a wire to the console. It would not be practicable for her to stand and then rapidly sit down in order to answer an emergency call. The number of breaks which she would require from her work station would be impracticable (Reasons paragraph 67).

(b) Had the Respondent consulted the Appellant about possible alternative posts with the organisation in December 1998 or January 1999 none of the posts then vacant would have been within her capabilities or jobs in which she would have been interested (Reasons paragraph 68).

(c) Thus, although the Respondent failed to consult the Appellant over possible further modifications in December 1998 or January 1999, they would in fact have been justified in saying that they could not modify her duties in such a way as to remove the disadvantage at which she was placed compared with employees who were not disabled (section 6 (1) Disability Discrimination Act ). (Reasons paragraph 69).

Unfair dismissal

18. In addition to her complaint of disability discrimination the Appellant also complained of unfair dismissal. That complaint was upheld by the Tribunal, the unfairness in her dismissal by reason of incapability lying in the Respondent's failure to consult the Appellant prior to her dismissal as to her level of incapacity and the possibility of alternative employment (Reasons paragraph 73). However, the Tribunal went on to find that on the facts of this case consultation would have made no difference to the ultimate decision to dismiss (Reasons paragraph 75). In these circumstances the Tribunal thought it unlikely that any compensatory award for unfair dismissal would be made, applying the principles in Polkey v A E Dayton Services Ltd [1988] ICR 142. She would be entitled to a basic award. (Reasons paragraph 77).

The Appeal

19. We return to the two points now taken by Miss Eady in this appeal on the Tribunal's findings as to justification.
20. Her principal submission is that the Tribunal erred in law in holding that it was open to the Respondent to discharge the onus of justifying disability discrimination under section 5(1)(a) when it did not apply its mind immediately prior to dismissal to what adjustments could be made. The ex post facto defence.
21. Unhappily it appears that two recent reserved judgments of different divisions of the EAT, each delivered apparently without knowledge of the other, provide conflicting views on this point. They are British Gas Services Ltd v McCaull [2001] IRLR 60, a decision of a division sitting in England presided over by Keene J, judgment delivered on 28 September 2000 and Quinn v Schwarzkopf Ltd [2001] IRLR 67, a judgment of the Scottish division presided over by Lord Johnston delivered on 18 October 2000.
22. Before considering the two cases we should say something about the practice to be followed in this court when faced with earlier, conflicting EAT decisions. First, the EAT is not bound by its own decisions. Secondly, no distinction is to be drawn between decisions of English and Scottish divisions. Davidson v City Electrical Factors Ltd [1998] IRLR 435. Thirdly, the approach taken by Mummery J in Tracey v Crosville Wales Ltd, to follow the most recent EAT decision;

(a) was questioned by Beldam LJ in that case. [1996] ICR 237, 257 G; (in the event the House of Lords in that case [1997] ICR 862, preferred the approach taken in the earlier of two conflicting EAT decisions); and

(b) cannot, in our view, be appropriate in circumstances where, due to the close proximity in time between these two decisions, it is unlikely that the court in Quinn was aware of the earlier decision in McCaull. Certainly, McCaull is not cited in the judgment in Quinn.

In these circumstances we must first look to those cases to detect any difference in approach to the law and if so, to decide which approach we shall follow. Neither Counsel has argued against our taking that course, Miss Eady inviting us to follow Quinn and Mr Gilroy favouring the EAT's approach in McCaull.

23. The point at issue arose in Quinn in these circumstances. The Employment Tribunal found, contrary to the Respondent employer's contention, that the Appellant was disabled within the meaning of section 1 Disability Discrimination Act. He had been dismissed by the Respondent. They formulated the Appellant's claim of disability discrimination in the case as a claim under section 6(1) of the Act in that the Respondent failed to make reasonable adjustments to take account of his disability. That formulation was incorrect. Insofar as the treatment complained of was the dismissal, the claim arose under section 5(1). Section 6 is relevant (a) to the defence of justification to a section 5(1) claim, by virtue of section 5(5) and (b) to a claim under section 5(2), as Lord Johnston pointed out at paragraph 7 of his judgment. The Employment Tribunal dismissed the complaint on the ground that the dismissal was justified .
24. Before the EAT it was conceded on behalf of the Respondent employer that (a) the Applicant who brought the appeal, was disabled and (b) his dismissal was by reason of his disability (section 5(1)(a)). With some encouragement from the court (judgment paragraph 11) Counsel for the Applicant adopted the argument that the issue of justification did not arise at all in circumstances where the employer was disputing disability in the first place.
25. That analysis, apparently emanating from the court, was adopted by the EAT. At paragraph 12 Lord Johnston said this:

"We consider this analysis must be correct. We do not consider it appropriate or indeed competent in the context of this legislation for an employer to put the issue of justification before the tribunal where in fact he never even attempted during the currency of the employment to take any steps which would base justification for the ultimate discriminatory act, that is to say, considering or at least applying his mind to what should be done to accommodate the disablement. We do not consider that the legislation contemplates attempts by employers on a hypothetical basis to justify an act subsequently held to be discriminatory which they did not at the time consider to be such, because they were unaware of the existence of the disability, upon the ultimate aim of seeking to establish that there was nothing in fact they could have done, a situation not unlike the exercise which is sometimes undertaken in redundancy cases where the employer seeks to maintain that even though he failed to consult, a consultation would not have made any difference. We do not consider that approach as appropriate in the context of this legislation where the issue of disability and discrimination is disputed as a matter of fact in the mind of the employer. The situation would be different if, being aware of the disability, the employer did nothing because he considered that there was nothing that could reasonably be done."

26. Pausing there, as Miss Eady points out, Lord Johnston draws an analogy with the principle in Polkey v A E Dayton, overruling British Labour Pump Co Ltd v Byrne [1979] ICR 347 (EAT) and Wass v Binns [1982] ICR 486 (CA), that it is no answer to a complaint of unfair dismissal by reason of redundancy that consultation would have made no difference (as opposed to consultation being futile or utterly useless). The significance here being that on the present facts the Tribunal found that Mrs Bradley was unfairly dismissed, applying the Polkey principle.
27. In these circumstances the appeal in Quinn was allowed and a declaration of unlawful disability discrimination contrary to section 5(1) Disability Discrimination Act was substituted by the EAT for the Order of the Employment Tribunal dismissing the disability complaint.
28. In McCaull it was argued before the EAT on behalf of the Respondent employee that the Employment Tribunal was entitled to conclude that the Appellant employer had failed to make out the defence of justification to a complaint of failure to comply with its section 6 duty contrary to section 5(2) because, until the Tribunal hearing, it had not consciously considered what steps it ought to take by way of adjustments so as to comply with its section 6 duty. Reliance was placed on paragraph 6.20 of the Code of Practice issued pursuant to section 3 of the Act.
29. The EAT rejected that argument. Keene J advanced the following propositions, paragraphs 42 (45:

(i) it is not necessary for the employer to have considered what steps, if any, he should take in the context of the section 6 duty in order to comply with that duty (paragraph 42);

(ii) there is nothing in the Disability Discrimination Act to prevent an employer arguing, post hoc, that the test of reasonableness under section 6 has been met. It is an objective test, See Morse v Wiltshire County Council [1998] IRLR 352, paragraphs 46 - 47 (EAT Bell J ) (paragraph 43);

(iii) It may well be difficult for an employer to show that he has complied with his section 6 duty if he did not, at the time, consider what steps to take.

30. We should also refer to the review of the Disability Discrimination Act provisions undertaken by Lindsay P in H J Heinz Co Ltd v Kendrick [2000] IRLR 144. At paragraphs 21 - 27 the President considered and doubted the view expressed in the earlier EAT decision of O'Neill v Symm & Co Ltd [1998] IRLR 233 (Kirkwood J), that a dismissal cannot be unlawful under section 5(1) if the employer had no knowledge of the Applicant's disability. Such treatment could not be said to be for a reason related to her disability. However, the President added (paragraph 27) that absence of such knowledge may be highly material to justifiability under section 5(1)(b) or section 5(2)(b), a view which finds an echo in McCaull, paragraph 45, although Heinz is not referred to in the judgment of Keene J.
31. No further assistance on this particular point is to be derived from the judgment of Mummery LJ in Clark v Novacold.
32. That being the current state of the authorities, and with the assistance of Counsel, we proffer these observations of our own in the context of the present case;

(1) Where the dismissal is found to be for a reason relating to the Applicant's disability, as here, it is open to the employer to show that the reason is both material and substantial (section 5(3) ). He is not precluded from raising that defence simply because he did not, up until the time of dismissal, consider that the employee was disabled or what should be done to accommodate the employee's disability. Cf Quinn paragraph 12.

(2) We do not draw the analogy with unfair dismissal which struck the EAT in Quinn, that is with the Polkey principle as to the reasonableness of a dismissal under section 98(4) Employment Rights Act 1996. On the contrary, we accept Mr Gilroy's submission that a better analogy, if one is required, lies with the case where an employer denies having dismissed his employee for the purposes of founding a complaint of unfair dismissal. It is well established that where an employer denies dismissal and fails in that contention he may nevertheless argue, in the alternative, that he had a potentially fair reason for dismissal and that the dismissal for that reason was fair. Ely v YKK Fasteners (UK) Ltd [1993] IRLR 500. Similarly, in a case of constructive dismissal. Genower v Ealing Area Health Authority [1980] IRLR 297.

(3) The passage cited from the judgment of Keene J in McCaull is directed to the defence of justification to a complaint brought under section 5(2). However, section 5(5) brings into play the need to make reasonable adjustments under section 6, or to justify the employer's failure to do so, as part of the Tribunal's consideration of the defence of justification to a section 5(1) claim. We agree with the EAT in McCaull that the first question here is whether, assuming there is a duty to make reasonable adjustments under section 6, the employer has failed so to do. We further agree that the test as to whether the employer has complied with his section 6 duty is an objective one. See Morse v Wiltshire County Council [1998] IRLR 352, paragraphs 46 - 47, (Bell J). It follows, in our view, that it is open to an employer to show, after the event, that he has taken all reasonable steps to comply with his section 6 duty or, put the other way, there are no further steps which he could reasonably have taken to remove the disadvantage to the employee envisaged by section 6(1). To that extent ex post facto evidence, for example as to the outcome of any consultation with the employee, or a search for alternative employment, is material and admissible. However, failure to consider what steps ought to have been taken at the time may cause evidential difficulties to the employer in establishing that defence.

(4) In any event, this is not a case, on its facts, where the Respondent failed to consider what steps could be taken during the currency of the employment to accommodate the Appellant's disablement. On the contrary, they took all reasonable steps, on the Tribunal's findings to make adjustments up until the final misunderstanding between Dr Almond and Mr Haslam. It is at this point that we prefer to follow the EAT approach in McCaull to that suggested in Quinn. In our view it was open to the Respondent to prove, after the event, that consultation with the Appellant would not have led to any further adjustments, nor would a search for alternative employment have assisted the Appellant to remain in the employment. They were not thereby debarred from relying on the justification defence by the provisions of section 5(5). Accordingly, we reject Miss Eady's primary submission.

33. Turning now to her second point, Miss Eady submits that this Tribunal failed to carry out the balancing exercise between the interests of the Respondent and the Appellant when considering the justification defence. See Baynton v Saurus Engineers Ltd [1999] IRLR 604, paragraphs 36 - 38; Heinz, paragraph 20.
34. We reject that submission. It seems to us, reading the Tribunal's lengthy Reasons as a whole, that they carefully considered the interests of both the Respondent and the Appellant. Close attention was paid to what the Appellant could and could not do, set against the needs of the Respondent's organisation. Overall they concluded, permissibly in our judgment, that after making all reasonable adjustments it was not possible for the Appellant to sustain a return to work, even in the new control room. That was a material and substantial reason for the dismissal. The defence of justification was made out. The complaint under section 5(1) accordingly failed and this appeal also fails and is dismissed.