United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS JANE VERNON Representative Wiltshire Law Centre Temple House 115-118 Commercial Road Swindon SN1 5PL
For the Respondent	MR BRIAN REYNOLDS Advocate Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB


 


JUDGE J McMULLEN QC

1. This is an appeal by the Applicant against the decision of an Employment Tribunal sitting at Bristol, Chairman Mr J D Bedford, on 23 January promulgated on 20 February 2001. The case is about disability discrimination. The Applicant was represented as here by Ms Vernon of Wiltshire Law Centre and the Respondent as here by Mr Brian Reynolds.
2. The Applicant claimed constructive unfair dismissal and disability discrimination. The issues before the Tribunal revolved around whether the Applicant's employer knew or could reasonably be expected to know of the Applicant's disability. The Tribunal decided that the Respondent did not so know and made a judgment in relation to imputation of knowledge. It thus dismissed the Applicant's claim under the DDA. Linked to it by the claim that the Respondent had failed to make reasonable adjustments was a claim of constructive unfair dismissal viz the Respondent was in fundamental breach of the contract of employment in failing to make a reasonable adjustment under the DDA, and thus was liable for unfair dismissal pursuant to section 98(4) of the Employment Rights Act, the dismissal taking the form of what is conventionally known as constructive dismissal under section 95(1)(c).
3. The Applicant was employed by the Respondent from 6 June 1994 until his resignation became effective on 28 July 2000. He was a foreman at the Respondent's garage. The Respondent carries on business as a motor agent in four or five locations. The Applicant's duties included the allocation of repairs and MOT jobs in the mornings, assistance with actual servicing work himself and subsequent checking and quality control.
4. The Tribunal found that the Applicant had a history of illness. The issue with which it was presented was whether prior to 1 June 2000 it knew or could reasonably be expected to know of the Applicant's disability. It is therefore necessary to consider the terms of the Act. Section 1(1) provides:

"Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long -term adverse effect on his ability to carry out normal day-to-day activities."

Section 6(1) provides:

"(1) When -

(a) any arrangements made by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer

places 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.

(2) Sub Section (1)(a) applies only in relation to -

(a) arrangements for determining to whom employment should be offered;"

Section 6(6) provides:

"(6) Nothing in this section imposes the duty on an employer in relation to a disabled person as the employer does not know, and could not reasonably be expected to know -

(b)In any case that the person has a disability and is likely to be affected in the way mentioned in subsection (1)"

5. Section 6 includes a non exhaustive list of ways in which reasonable adjustments could be made in any particular case.
6. The history of the Applicant's illness is that in 1996 he received a medical certificate indicating his illness was TIA. Neither he nor the Respondent knew at the time what it was. It appears to mean a transient condition. He was examined privately but no specialist report was available. There was no clear diagnosis that TIA was a possibility. Happily the Tribunal recorded the Applicant made what appeared to be a full recovery and he went back to work. On 9 September 1999 he experienced a minor stroke-like episode. He presented a series of sick notes which again stated TIA. This went on for some time and on occasions when he called in at work it was clear that he himself still expected a full recovery.
7. On 7 March 2000 a meeting took place attended by the personnel manager, Mr Horsell. His duty was to review employees who were on long term sick absences. In his possession was a GP's note on behalf of the Applicant saying that there was a weakness on the right side of his body and that he had been referred to a specialist physiotherapist. The GP raised the question about whether the Applicant could be accommodated with lighter jobs.
8. The sick note indicated that he should be off work for a period of a further three months. At all times the Applicant was anxious to return to work and there was a discussion of the work which he felt he could do and could not do. He had yet to begin the course with the specialist physiotherapist which had been arranged for him.
9. The Tribunal accepted Mr Horsell's file note that the outcome of the meeting was to wait and see the result of the physiotherapy, when a clearer picture of the Applicant's capability would emerge. The Tribunal found that at the meeting the Applicant's right arm was still clearly weak and that he had a slight limp.
10. In due course the Applicant contacted the Wiltshire Law Centre and received advice that he was disabled within the meaning of the DDA. He forthwith contacted his line manager and a meeting was set up for 1 June 2000. At that meeting the nature of the Applicant's condition became apparent, and the new person in charge of Personnel, Mrs Cameron, at once accepted that the Respondent had a duty to assist him and to make reasonable adjustments to accommodate him. The Applicant agreed that the foreman's job was not something he could return to, and something else would be found. Indeed such a job was found, warranty clerk. The Respondent considered that this might be suitable for him although the earnings would have been substantially less. He did not accept it. On 16 June he wrote saying that he would not continue work and gave six weeks' notice.
11. Mrs Cameron was very surprised and tried to get him to come and talk about other options but on his behalf the Law Centre said that he was applying very shortly to the Employment Tribunal. This he did by presenting the Originating Application on 11 August 2000.
12. At some stage before the Tribunal hearing it became known that the Applicant suffers from Lupus Anticoagulant Syndrome for which he takes Warfarin. It is conceded by both parties that this is a disability under the Disability Discrimination Act 1995. Thus, the Applicant is unarguably a person with a serious condition which put him within the scope of the DDA. The conclusion of the Tribunal was that the Applicant had made a full recovery in 1996 from his early episode. The only medical information available to the employers said nothing about the disability or a recurring condition. It mentioned physiotherapy and gave a further three months period of sick leave. The Tribunal thus addressed the question under section 6(4) and came to this conclusion:

"Neither party on that day 7 March 2000, was aware of the true condition. There was no obligation in our view, on the respondent to search for a disability and we do not agree that the circumstances on 7 March were such as to mean that knowledge of a disability must be imputed to the respondent from that date. By 1 June the condition had of course lasted much longer. As soon as, on that date, the application of the duty under the DDA was known to the respondent, they took active steps to discharge that duty to make suitable adjustments. They were still willing and able to make adjustments and indeed trying to do so when he resigned. They continued to make efforts during the notice period."

And the Tribunal went on to decide that further adjustments to discharge the duty were prevented by the action of the Applicant in resigning.

13. The criticism made by Ms Vernon of that passage is that the Tribunal as a matter of objective standards could not have come to the view that the employer could be reasonably expected not to have known of the condition.
14. It has been stressed in relation to section 5 – see H J Heinz Co Ltd v Kenrick [2000] IRLR 144 EAT - that the absence of knowledge is not a complete answer to a claim under section 5. Under section 6 the scope of adjustments required reasonably to be taken may be affected by employer knowledge. An employer is not able to use the lack of knowledge to say that no duty to show justification arises.
15. The question before the Tribunal therefore was to be resolved by reference to the correct application of section 6(6). In our judgment the Tribunal failed to apply the correct test. The Tribunal uses the word "imputing" disability knowledge but we are not certain that the Tribunal applied expressly the formula used in section 6(6). It made a firm judgment, which is not contested, that the Respondent did not in fact know that that the Applicant was at a substantial disadvantage in comparison with persons who were not disabled. But it did not go on to find expressly that the employer could not reasonably be expected to know such. In our judgment that was an error of law. Had it directed itself correctly we are of the view that those factors presenting to the Respondent's management on 7 March 2000 would have indicated reasonably that there was the kind of substantial disadvantage envisaged by section 6(1). This employer could reasonably be expected, in the light of for example a six months absence prolonged by a further three months, to consider that the Applicant was at a substantial disadvantage compared with persons who were not disabled. His previous absences, albeit with a full recovery, his referral to a specialist, his subsequent referral to a specialist physiotherapist, the physical observations of his right arm being weak and his slight limp, all within this year, should have given the employer the reasonable belief that he had a disability referred to in section 6(1).
16. So, the duty arose thus to make reasonable adjustments. It did not arise immediately on 7 March because the Applicant was away. But some time during the period 7 March to 1 June 2000, we hold, the Respondent was a under a duty, which it breached in failing to make a reasonable adjustment. During that time a reasonable employer would have been seeking out the kind of solutions which eventually were forthcoming in June. We are not able to say precisely when that would have occurred but it is indicative that, as Mrs Cameron put it, immediately upon it dawning on them on 1 June that the Applicant was disabled, steps were taken by her to try and find alternative work. We therefore find that at some stage during that period after 7 March 2000 the duty which had arisen to provide a reasonable adjustment was breached.
17. We therefore substitute a finding of a breach of the section 6 duty occurring after 7 March and before 1 June. After 1 June we see no basis for interfering with the Tribunal's decision that the duty was discharged and therefore it is necessary only to consider whether that brief period of failure to make the adjustment would give the Applicant the basis for the claim of constructive unfair dismissal. That is a fundamental breach by the Respondent entitling him to leave the employment with or without notice.
18. In our judgment this employer, after it was fixed with knowledge, made the adjustments, corrected the failure and provided no justification for the Applicant to resign and claim unfair dismissal as he did.
19. In those circumstances we allow the appeal in part and remit the case to the same Tribunal to consider at what stage the breach occurred after 7 March and to assess any remedy in the light of that decision.