United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr DAVID FLOOD (Of Counsel) Instructed by: Mr John Halso 10 Pitville Close Liverpool L18 7JP
For the Respondent	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE HOLLAND

1. This is an appeal from an Employment Tribunal sitting in Liverpool, its Decision and its supporting Extended Reasons being sent to the parties on 11 December 2000. The essential issues appear from their decision:

"The unanimous decision of the Tribunal is that :-

(i) the applicant has been constructively unfairly dismissed

(ii) has been discriminated against on the grounds of her sex

(iii) and has been discriminated against on the grounds of her disability"

2. The Applicant before the Employment Tribunal and the Respondent for this appeal is Mrs Angela Owen. She was born in 1969 and she was employed by the Respondents to her application (and now the appellants) as a shop assistant in one of their several bakery shops. The Appellants are a substantial organisation with a turnover of some £3½ million pounds per annum and they employ between 180 and 200 persons. The shop in which the Respondent worked had its own ovens and we infer that her work normally included recovery of cooked or baked products from such as well as normal counter work. We advisedly use the word 'infer': on behalf of the Appellants, Mr Flood makes complaints about the paucity and adequacy of certain findings of fact as set out in the Extended Reasons. Looking at the matter generally we readily agree that the findings relating to issues are sparse and in seeking a factual matrix we have been driven to utilise not just material from the Extended Reasons but also material from the original statements, the correspondence and the Chairman's happily full notes of evidence. We return to this point about fact finding later in this judgment.
3. For present purposes we discern from all that material the following essential chronology. By July 1999 the Respondent was the victim of an unpleasant and painful condition affecting her right wrist, tenosynovitis.
4. On 16 July she received a cortisone injection with a view to relieving her condition. In the short term, at the least, that injection enhanced the pain and after some two days she had to stop work.
5. On 21 or 26 July (it matters not which) she had a discussion with a manager, Mrs Bernadette Mather. An issue of fact arises as to one part of this discussion. According to the Respondent in her witness statement matters went as follows:

"I recall discussing the problems with lifting and how they could be overcome. I recall that Bernie said to me that I might be asked to resign if I could not get back to work which was put to me on a friendly basis with the option to return when the problem was sorted out. She said to me that it looked as if it was going to take quite a while for me to get better and after 26 weeks it was usual procedure to terminate employment and it would be better for me to resign than that."

6. For her part Mrs Mather takes issue and again it is more convenient to look at the witness statement. Her account is this:

"I explained to her what normally happens was that after a 26 week absence the company would normally start investigator sickness with her permission by writing to her doctor asking for a report on the injury. Angela then asked me what would happen if the GP said that the injury was not reparable. I responded to Angela's question by saying that if the worst came to the worst and we could not keep her job open or find suitable alternative work then the Company may terminate her Contract of Employment. Angela then asked me if there is any other option at this stage and I responded to that question by saying 'if you know in your heart of hearts that you could not come back to work you could resign and re-apply for a position once your injury was sorted'. Angela replied she did not want to resign. I replied 'That's fine. It's only an option'. She added 'At no stage did I tell her that she might be asked to resign'."

7. Back to the chronology: on 6 September 1999 Mrs Owen's first pregnancy was confirmed by her GP. This fact was promptly reported to the management and her request to return to some work was renewed but to no avail.
8. On 26 October 1999 her GP reported in writing to the Appellants. He identified the wrist condition and indicated that it now required surgical decompression because she had not responded to other treatments. The report then continues:

"However, she is now pregnant and therefore it is necessary for surgery to be postponed until after the birth of the baby. The effect on her work is that she cannot lift heavy loads eg a tray of pies and this is likely to continue for as long as she is able to continue working prior to the start of her maternity leave. Depending on what timing to be arranged for her surgery following her confinement I would anticipate that she might indeed have her operation whilst still on maternity leave in which case the amount of sickness absence following the conclusion of the maternity leave may actually be relatively short.

However, should it not possible to arrange that she would be returning to work with the same restrictions on lifting and carrying that would apply immediately and at that time of the operation she would probably require some 2 to 3 sickness absence and following return a further period of probably 4 to 5 weeks with again limitation in her work until such time as the wound is healed completely internally as well as externally.

Thus, I cannot envisage her being fit to return to unrestricted work for a period of between 9 and 12 months. However, it may be possible to arrange work within her limitations at a much earlier date and I will discuss this matter with her when I next see her."

9. On 15 November 1999 the Respondent herself wrote to the Appellants:

"I am writing to formally record my concerns of the position I find myself in.

You are aware that I have been diagnosed with Tenosynovitis and are also aware that I have been off work since Friday 16 July 1999. Although I was initially off work with a pain in my wrist the majority of the time I have been off work at your insistence in that and you have refused to allow me to return to work.

I have acted reasonably and have kept you informed from the start. At the end of July I tried to discuss with the two of you my return to work. Whilst I realise I cannot lift or go on the ovens this is in fact only about 10% of my job and I asked if I could return to work without doing these duties until I had my operation. I was told no, in fact I was asked to resign or my employment might be terminated. To further assist I offered to work part-time hours on a temporary basis but again this was refused.

As you are aware the position is further complicated by the fact that I am pregnant which I advised you on 6 September 1999. I say complicated but in fact it occurs to me that if I was in work, as I want to be, whilst pregnant, I would not be lifting or doing oven work.

You have received a letter from my doctor, which supports my view set out above. Please confirm by return that I can return to work otherwise I will have to seek further advice."

10. Following receipt of that letter there was a meeting between on the one hand Mrs Henley of the Appellants and on the other hand the Respondent. There are varying accounts as to what transpired during that meeting and as is often the case with this matter there is no specific finding of fact, but it does seem clear that the two managers indicated that they had been misquoted, yet did not offer any return to work. It is important there was no letter sent by the Appellants in response to that letter of the 15 November.
11. That then leads on to the letter of resignation of 8 December and that reads as follows:

"Dear Mr J Pimblett

You will be aware that I went off work on the 16^th July 1999 with pain in my wrist. Whilst I accept that at that time the pain was quite bad it did improve considerably and my doctor advised that I could return to work if I did not do heavy lifting or work on the ovens.

At the end of July when I had only been off work for a couple of weeks Janet & Bernie mentioned to me in a meeting that if I was off work for any length of time I would have to resign or I might be dismissed. A couple of weeks later I asked if I could return to work and I offered two solutions, either I could return to work and not do the heavy lifting and oven work (which is only about 10% of my job in any event) or if that was not acceptable I would return to work part time. My doctor agreed that there was no reason why I should not return to work if I did not do heavy lifting and wrote to you advising of this.

Despite this I have not been allowed to return to work which I very much want to do. I have been advised that an operation is likely to help relieve my problem but I discover that I was pregnant in early September. I advised Janet & Bernie of my pregnancy at once, and also of the fact that I can not have the operation whilst I am pregnant. I will be able to have it done after my baby is born which again I advised them of.

Since then I have had numerous meetings with Janet and/or Bernie and have been refused to work on several occasions. On 15^th November I wrote to them in a final attempt to sort things out. I met with them both on 22^nd November to discuss matters. I explained once again that I wanted to return to work, that I could not have the operation whilst I was pregnant but in any event I felt I could return to work without doing heavy lifting. I pointed out that whilst I was pregnant I would not be doing this anyway and I was told that I would be which I found surprising. I was told that I had not been threatened with termination of my employment which is not true, this has been mentioned on several occasions, with reference to a period of 26 weeks and it was mentioned again at that meeting.

I am now in a position where I want to work but am not being allowed to work and I have hanging over my head to threat that if I do not return to work my employment is likely to be terminated after 26 weeks. I consider this wrong when I want to go back to work and my doctor supports the view that I can. Therefore with regret I have come to the conclusion that because I am not being allowed to return to work and because I no longer have trust and confidence in you as my employer I must, with regret hand in my notice.

It is with regret, and I have attempted many times to sort this matter out but have not met with any success."

12. There was no written response at all to that letter but the resignation thus tendered was accepted and her employment came to an end. With the ending of that employment there then followed complaints to the Employment Tribunal and that led on to the hearing that is the subject of appeal.
13. Turning then to the way in which the Employment Tribunal dealt with the case, perusal of the Extended Reasons shows that it is started by reminding itself of the law. It correctly (in the view of this Tribunal) focused principally upon the Disability Discrimination Act 1995 and it concluded first that the Appellants' managers Mrs Mather and Mrs Hanley were unaware of the statutory obligations imposed upon their employers by section 6 of that Act. It is right that we should interpose by reminding ourselves of the terms so far as material of that section. It reads:

"(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 or feature having that effect."

Subsection (2) reads:

"(2) Subsection (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."

Subsection (3) provides examples of the way in which an employer may take in order to comply with the requirements of this section and then it is material to read Subsection (4):

"(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to –

(a) the extent to which taking the step would prevent the effect in question;

(b) the extent to which it is practicable for the employer to take the step;

(c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of the employer's financial and other resources;

(e) the availability to the employer of financial or other assistance with respect to taking the step."

14. Proceeding on from their first finding the Employment Tribunal then found that neither Mrs Mather nor Mrs Hanley made any attempt at all to secure any adjustments as so required by section 6. The Tribunal found that they saw things in black and white terms. Their position was that either the Respondent was fully fit or she was not fully fit. If she was fully fit she could have employment. If she was not fully fit there was no question of employment.
15. The Employment Tribunal then moved on to a third stage of reasoning and it led to the finding that had these managers sought to make adjustments pursuant to section 6 then such could have been made. The penultimate stage in the reasoning was to the effect that in the event their refusal to seek and make such adjustments prevented the Respondent from working and amounted to a repudiatory breach so that she was entitled to terminate and upon doing so she was to be regarded as constructively dismissed.
16. Finally, and supplementary to the foregoing, they made this finding with respect to the alternative complaint that was laid pursuant to the Sex Discrimination Act 1995:

"The Respondent's conduct in not allowing the applicant to return to work was contrary to Section 1(1)(a) of the Sex Discrimination Act 1975 because on sex grounds she was treated less favourably than would have been. Pregnancy is gender specific. It was also contrary to Section 6(2)(b) of the same Act as she had been discriminated against by being subjected to a detriment and not being allowed to return to work until the operation was carried out. A similar operation upon a man would not have been delayed because of pregnancy."

17. Turning then from the way in which the Employment Tribunal approached this matter to this appeal Mr Flood has helpfully and succinctly argued the Appellant's case by reference to the amended Notice of Appeal. We shall follow the same route. Ground (i) reads as follows:

"The Tribunal failed to make a finding of fact in relation to the dispute between the parties as to precisely what had been said to the Respondent by the Appellant's representatives Mrs Mather and Mrs Hanley in the meetings that led up to the Respondent's resignation. The Respondent alleged that she had been told by the Appellant's representatives that it was normal company policy/procedure to dismiss staff after 26 weeks of sickness absence. This was denied by the Appellant. The Tribunal was specifically requested to make a finding on this point. The finding of the Tribunal concentrates on the Respondent's perception of what was said, rather than was actually said. The alleged remarks are of particular relevance to the issue of Sex Discrimination and Constructive and Unfair Dismissal. Without a finding that these remarks were actually made, there can be no Sex Discrimination or constructive dismissal in this matter."

Mr Flood in advancing this ground drew our attention helpfully to such findings as were made by the Employment Tribunal which are to be found in sub paragraphs xi and xii of paragraph 5 of the Extended Reasons. In there the Tribunal put the matter thus:

"One of the main issues that the respondent was concerned about was whether Mrs Mather on behalf of the respondent had told the applicant that after 26 weeks it was normal procedure for the respondent to terminate the employment of someone in the applicant's position. The recollection of the applicant and Mrs Mather was different. Mrs Mather did not keep any notes. She did not write to the applicant confirming what had been said, there was written procedure on sickness absence policy, there was no contract of employment produced and we have not seen any equal opportunities policy. We had to reach a conclusion based upon the evidence of the individuals. We find that the applicant had a genuine and reasonable belief that she was being told that this was the case although she may have been confused because of the way in which Mrs Mather expressed herself orally and which was compounded by the lack of any written data to support what Mrs Mather has said. The applicant's version was confirmed in IT3 until it was amended in the run up to the first date fixed for the hearing. It was also a fact noted at an interlocutory hearing at which Mrs Mather had attended in May 2000.

The Tribunal finds that Mrs Mather did mention the applicant resigning but this was part of an overall summary of the various options that would be available in due course. When this issue was first broached, the applicant conceded in her evidence that it was "put to me on a friendly basis". We are not surprised that it was mentioned by Mrs Mather as it would have been one of the several options available."

18. We agree with Mr Flood that in this matter as some other matters the Employment Tribunal was less than specific in its findings. The words 'Mrs Mather did mention the Applicant resigning' in themselves beg the question rather than answer it. However, we cannot regard the underlying issue as having the importance that Mr Flood attaches to it. The Employment Tribunal itself plainly thought that the refusal to allow the Respondent to return to work had the key significance so that it was able to reach its conclusions without overtly referring to this point. If there be a sound basis for that finding by the Employment Tribunal then it must follow that all this further issue has secondary significance, if any significance at all.
19. Further, the issue has other dimensions to it and findings about it do not readily still less necessarily offer support for the employer's case. Whether or not the Respondent was told by Mrs Mather that she would be dismissed if she was still sick after 26 weeks that is what she understood to be the case. There is a finding of fact to that effect and it certainly emerges from the letters already cited in this judgment.
20. Whatever was said to her following the letter of 15 November, nothing was put in writing so as to contradict what she was asserting. Further, and as evidentially important, nothing was written in response to her letter of resignation so as to seek to correct her impression. Whether or not Mrs Mather said what is claimed at the first meeting, a subsequent failure to correct a known misunderstanding can in the judgment of this Tribunal stand as a similar representation. In summary we agree with Mr Flood that the matter should have been spelt out with great particularity by the Employment Tribunal, but we draw attention, first, to the fact that it was not an important issue for that Tribunal and, second, to the fact that had the Tribunal gone further into it, then what would no doubt have emerged as having greater importance was the apparent failure to correct at least in writing that which Mrs Owen herself had advanced in writing in the letters already cited. We do not find in this ground any reason to allow this appeal and remit the matter.
21. Turning to ground (ii) that reads:

"The Tribunal erred in finding as a fact that the Respondent resigned in response to the Appellant's failure to allow her to return to work. The evidence of the Respondent in cross examination was that she resigned in response to the remark that she would be dismissed after 26 weeks sickness absence, and that had that remark not been made, she would not have resigned. Both parties submitted that this was the principal reason. The Tribunal's finding was unsupported by either evidence or submission from either party;"

This ground has wholly failed to attract the sympathetic attention of this Tribunal. The letter of 8 December itself offers ample support for the approach of the Tribunal. We cite its penultimate paragraph in which Mrs Owen herself sets out that which has driven her to write a letter and it is to be noted that a refusal to give her work is put prominently. Further that than that the finding by the Tribunal on this point is essentially a matter of fact for that Tribunal based upon the evidence. It cannot be said in any way that it was a perverse finding. Again despite Mr Flood's advocacy, we cannot act upon that particular ground.

22. Grounds (iii), (iv) (v) and (vii), all go to the conclusion of the Employment Tribunal as already recorded in this judgment. Essentially the Appellant's argument as advanced by Mr Flood runs in effect as follows:

"Granted we did not actively seek to make adjustments as required by section 6 but had we sought to make them there were none such that would objectively reasonable to make."

His further argument runs as follows:

"Their decisions as to what was objectively reasonable depend upon the facts as found and there was a conspicuous absence of fact finding at least in terms as can be seen by reference to the Extended Reasons. There are in the Extended Reasons no specific facts found as the amount of heavy lifting involved in this occupation. Nor is there any specific finding as the extent of significance of any disability."

He further submits that implication of any adjustments in terms of the safety of fellow employees and reorganisation are not discussed, notwithstanding the requirements of section 6(4). All this means, he submits, that the present conclusions cannot be sustained, that the appeal must be allowed and that there must be a re hearing.

23. For this Tribunal the following has weighed with us. First, the Employment Tribunal heard evidence in detail over two days, which evidence was carefully and comprehensively noted by the Chairman. Second, from that evidence and the inferences that fell to be drawn from such, there was in the judgment of this Tribunal material sufficient to sustain the Employment Tribunal's conclusions.
24. Third, whilst the facts as specified in the Extended Reasons under the heading 'The Facts' could and should have been more comprehensive and in particular could and should have dealt more specifically with the issues identified in the amended Notice of Appeal, those findings have to be read in conjunction with that which appears under the heading 'Conclusions'. Perusal of the paragraphs under that heading serves to reveal a number of further findings of fact. There is in particular a crucial paragraph which reads as follows:

"The Tribunal conclude and find that in the shop where the applicant worked a system could have been devised where the applicant did not have to lift heavy objects. It was her dominant right hand which was affected but her left hand was unaffected. She could have spent more time on serving whilst colleagues shared any additional lifting tasks which could not be undertaken by the applicant."

25. Whilst terse in terms, this passage in our judgment clearly amounts to findings by the Employment Tribunal to the effect that, balancing the disability as they have found it to be and the conditions within the shop again as they have found them to be, the latter could be adjusted to accommodate the former.
26. Turning from this analysis to the matter in general we put into the balance the fact that the value of this evidence was enhanced by the Employment Tribunal's ability to see and evaluate the witnesses and in those circumstances we are minded to regard such findings as we can discern, as sufficing to sustain the conclusions. In reaching these views on these crucial points in this appeal this Tribunal has candidly been influenced by the belief. For us to remit this matter for a re hearing with the issue as unattractive as presently to be identified namely granted there was a failure wholly to seek to comply with section 6 nonetheless had there been any attempt to do so it would have failed. It would in our judgment require powerful merits and such we cannot refine.
27. That leaves grounds (vi) and (viii). Ground (vi) is a short one:

"The Tribunal erred in making a finding of fact that there were 60 administrative staff employed at the Appellant's Head Office. The evidence given to the Tribunal was that there were 5 or 6. The potential relevance of this error is that the Decision of the Tribunal makes criticism of the Appellant for failing to consider moving the Respondent to an administrative role."

As was pointed out by Mr Norman in the course of the hearing, perusal of the Chairman's notes has served to show that there was indeed evidence before the Chairman that some 120 out of 180 employees worked in the shops. Granted that the balance of 60 may not have been strictly engaged in administrative duties, but the point that the Tribunal was making, namely that there was scope for movement of personnel out of the shops into other parts of this organisation, was plainly open to it and there is in our view nothing in this point at all.

28. This then leaves the last point which is (viii) in these terms:

"The Tribunal erred in finding that the refusal of the Appellant to allow the Respondent to return to work was without more direct Sex Discrimination. The Appellant's case was that they would not allow the Respondent to return to work until the operation that, if successful, would cure her wrist condition was carried out. After the Respondent's sickness absence commenced the Respondent became pregnant and was informed by her doctors that she could not undergo the operation during her pregnancy. On the Appellant's case there was no threat to dismiss the Respondent at any time, and no less favourable treatment on the grounds of her sex. It is admitted that if the remarks referred to in ground (i) hereinafter were made to the Respondent, then the reason for her dismissal would have been her inability to have the operation within 26 weeks by virtue of her pregnancy, which would clearly amount to (inter alia) sex discrimination. The Tribunal did not find that the remarks had been made, and did not base their finding of Sex Discrimination on them."

29. If the matter did in turn entirely on the finding as to what Mrs Mather said then plainly this point is arguable, subject to the reservations already expressed in conjunction with point No (i), subject further to the impression gained by this Tribunal that the whole matter of Sex Discrimination was very much a secondary one in the particular circumstances of this case.
30. However, instead of according to the issue as to what Mrs Mather said any importance the Tribunal reasonably preferred to concentrate upon the refusal to allow the Respondent to return to work.
31. In the judgment of this Tribunal there is no difference in terms of legal significance between repudiation by representation and repudiation through denial of the return to work and thus it is again that is not a point that would serve to enable us to allow this appeal and remit the matter for a re hearing. We pay tribute to the way in which Mr Flood has dealt with this matter both before the Employment Tribunal and this Tribunal having regard to the documentation prepared for the respective hearings but in the event we are quite satisfied that this is an appeal that stands dismissed.