United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR VINCENT O'MALLEY (Representative) FRU


 


MR RECORDER LANGSTAFF QC

1. This matter comes before us by way of Preliminary Hearing in an appeal from a decision of the Employment Tribunal sitting at Newcastle. In their Extended Reasons promulgated on 6 July 2001 the Tribunal dismissed the Appellant's complaints that she had been discriminated against because of her disability. She had applied for two jobs and had not been selected. There was no dispute that she was disabled. She suffered from high blood pressure, diabetes, a thyroid problem and was taking medication indicative of anxiety or depression. The Tribunal indeed found that she had suffered from that in the past.
2. In its reasons, at paragraph 4(e), the Tribunal record that because of the medication referred to in the questionnaire which she filled in with a view to employment she was referred to the occupational health physician of the Respondent. Dr McKechnie, for she it was, saw the Appellant. It seemed to her, in that capacity, that she was in a state of anxiety and she considered that stress was particularly likely, in her case, to increase and intensify the blood pressure problem which the Applicant demonstrated to her. There was, she thought, a problem of recurrence of any depressive illness which the Appellant had suffered from in the past.
3. That was particularly relevant in the circumstances of the Newcastle College because the Tribunal also found and recorded in these terms the particular stresses to which work of the nature for which the Appellant had applied was subject. It said this:

"The Respondents were going through a traumatic period. The finances were out of control. The College were being monitored by outside authorities in regard to financial matters. It had been put 'at risk' by the Further Education Funding Council. This was a very serious matter and could have led, if things had not got better, to the college having extremely severe financial difficulties to the effect that it could not carry on. There had also been internal grievances. There had been a collective grievance brought against the finance director in 1997 which appears to have been resolved by some form of disciplinary action being taken. There was a subsequent grievance which was in the pipeline which had been submitted on 28 March 1999 again against the finance director. As already stated two employees from the finance department had left because of ill health reasons related to stress. Two employees were seeing the occupational health nurse for stress related illnesses."

Dr McKechnie, aware of those circumstances, in discussion with Mrs Wilson, who represented the employer's management, concluded that in her opinion the Appellant was not fit for employment in the anticipated post at this current time. Dr McKechnie repeated that in a letter of 28 June 1999 attributing the problem to stress. She said:

"Susan [that is the Appellant] has a number of medical conditions which could be adversely affected by stress, and, as an employer has a duty of care for his employees, in my opinion, it would not be in Susan's health interest to take up this post."

4. The Tribunal directed itself in accordance with the Disability Discrimination Act. There is no criticism before us of the law which it applied, save in one respect, that is the way in which the Tribunal considered the application to the facts it had before it of the Court of Appeal case of Jones v Post Office [2001] IRLR 384. Rather, the complaint before us is of perversity.
5. It is said by Mr O'Malley that these employers had come to a view that the stress of the work would cause this Appellant particular difficulty which it would not cause others, that that was an impermissible conclusion to reach because stress is endemic in any job and because the employer should not and could not properly have relied upon the views expressed to it of the occupational health physician because, as it turned out in evidence, the occupational health physician was unqualified to deal with psychiatric illness and untrained in that respect. Further, the decision was perverse because, before reaching a decision not to progress the Appellant's application for the jobs for which she sought to be considered, the employer should have discussed the issues with her and it was perverse of the Employment Tribunal to conclude that the employer had made out the defence of justification under Section 5 of the Disability Discrimination Act in circumstances where it had failed to do so. Next, he argues, that it was perverse of the Tribunal to reach the conclusion which it did in paragraph 18 that there were no reasonable adjustments which could have been made, and that on that basis there was no failure of the Respondents in respect of their Section 6 duty.
6. It is unnecessary in a judgement such as this to set out in extenso any of the provisions of the Disability Discrimination Act 1995. They are already referred to in the Tribunal's own decision. We have in mind the provisions of Section 4, Section 5(1) and 5(2) as they are set out. However, we should mention the provisions of Section 5(5). That subsection reads:

"If, in a case falling within subsection (1), the employer is under a section 6 duty [that is the duty to make reasonable adjustments] in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty."

The Section 6 duty is the duty of an employer to make adjustments. That provides at Section 6(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) however provides:

"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."

Section 3 goes on to deal with a number of sample steps which might be taken both in respect of the arrangements and the physical features of the premises referred to by Section 6(1).

7. It is unnecessary in this decision to deal with the difficult question of whether, in the context of this particular case, there was any obligation at all to make reasonable adjustments bearing in mind the wording of Section 6(2)(a) and (b) and its impact on Section 6(1). However, it is plain that the Tribunal in that respect concluded that there was nothing that could have been done, having discounted the two suggestions which were made to it on behalf of the Appellant.
8. We have to ask whether the decision to which this Tribunal came was so irrational as not to be a permissible option. We have to ask whether there is arguably any mistake of law or any misdirection. We conclude that the direction on law is entirely proper. We conclude that so far as perversity is concerned we cannot say, nor could any Tribunal say, that this is a case in which the decision to which the Tribunal came was not a permissible option.
9. So far as the specific points which were made on the Appellant's behalf by Mr O'Malley were concerned; as to the argument that the Doctor had no training or qualification, we merely observe that his only answer to the analogy of a GP signing a sick certificate which an employer would entitled be normally to rely upon (without enquiry as to the medical specialisms of the GP and his training) was that it would be administratively burdensome if in every such case where there might be a psychiatric injury matters had to be referred to a consultant specialising in the field. The reality is here that the employer had medical opinion and we cannot say that the Employment Tribunal should have, in this respect, held the employer to have been perverse in accepting from that medical opinion, not that there was certainty or probability, but merely that there was some risk particular to the employee which there would not have been in respect of people who did not share her disabilities.
10. So far as reasonable adjustments are concerned, we simply say that the Tribunal's findings of fact at paragraph 18 seem to us to deal with the matter as one of fact. In any event, even if they should have found that there was a duty which had not been satisfied by the Respondent employer under the terms of Section 5(5), it follows from what they have found as a fact in paragraph 18 that the justification would not have been affected by the Section 6 duty since no adjustment could reasonably have been made as they saw it. We cannot say that they were not entitled to take that view.
11. We have been urged to say that the Tribunal took into account irrelevant matters including the sickness of others in the department, internal grievances and staff problems, the change of mind of Dr McKechnie, the financial difficulties of the college and the stress levels of others. We consider that these matters were indeed, as Mr O'Malley put them to us, background. We consider that the background was relevant to the extent that it demonstrated to the Tribunal that there was here an environment which could be particularly harmful to any individual who was not, at the very least, of normal robustness, mentally. It was that background which was all important in determining whether or not the justification which the employers sought to make out was or was not made out. We do not therefore think that this is a case in which, on Wednesbury grounds, the Tribunal's judgment could arguably be said to be flawed.
12. Finally, in his skeleton argument (although somewhat earlier in his argument before us) Mr O'Malley suggested that the decision in Jones v Post Office had been misapplied in that the passage upon which the Tribunal quote includes the expression 'that where a properly conducted risk assessment provide the reason which is on its face both material and substantial and not irrational', the Tribunal cannot substitute its own appraisal. He argues that there was here no properly conducted risk assessment and irrational to think that there was. We do not see those words, relating to risk assessment, as critical to the application to the principles in Jones, to this case. The issue was whether or not the employer had an appreciation that there might be some risk beyond the normal to the Appellant in exposing her to the conditions in the college which they set out and which we have quoted. They were entitled to take that view based upon the medical evidence which the employer had provided, whatever the limitations of that medical evidence might have been, and we think there is no basis for falsifying the judgement of the Employment Tribunal on this basis either.
13. It follows that since we can see no arguable point of law in the matters urged on behalf of Miss Plimley that we have no alternative but to dismiss this appeal here and now, with thanks to Mr O'Malley for his submissions.