United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER DOUGHTY (of Counsel) Instructed by: Messrs Knight & Co Solicitors Eastleigh Hampshire SO50 9F11
For the Respondent	MR MICHAEL DINEEN (of Counsel) Instructed by: Messrs Dutton Gregory Solicitors Trussell House 23 St Peter Street Winchester Hampshire SO23 8BT


 


MR JUSTICE LINDSAY (PRESIDENT)

1. Mrs P.A. Rowden appeals against a decision of the Tribunal at Southampton. The appeal is chiefly concerned with section 5 (1) of the Disability Discrimination Act 1995.
2. Mrs Rowden, who appears before us, as she did below, by Mr Doughty, was employed as a Secretary from September 1993 to 21st May 1999 by the Respondent firm, Dutton Gregory Solicitors, for whom Mr Dineen appears before us; he had appeared for them also below. She was dismissed by the firm on 21st May 1999. On 12th August 1999 she presented an IT1 for "Unfair Dismissal, Wrongful Dismissal, Unlawful Discrimination contrary to DDA 1995, Unlawful Deduction of Wages". In the accompanying "Statement of Complaint" she complained of the Respondent's failure to implement its disciplinary procedure or to have properly investigated matters and she claimed that her depression amounted to a disability within the 1995 Act. Her IT1 concluded:-

"The Applicant contends that she was discriminated against on the grounds of that disability in that she was dismissed and the Respondent failed to discharge its duty to make reasonable adjustments to her workplace."

3. On 6th September 1999 the firm, by its IT3, asserted she had been dismissed for misconduct or "some other substantial reason". She had gone off sick on 30th April 1999. The firm's partners looked at her case on 20th May 1999. They said they had found 4 headings of complaint against her; they had taken the view that:-

"Her cumulative behaviour was such that it could amount to nothing less than gross misconduct."

It could have made no further adjustments to accommodate her, claimed the firm, and in any event she did not have a disability within the Act. Apart from a general traverse, the firm made no response to Mrs Rowden's complaint about the firm's failure to implement its disciplinary procedure.

4. The case was heard over 4 days at Southampton under the Chairmanship of Mr C.E.H. Twiss between 17th March and 28th June 2000. On 26th July 2000 the unanimous decision was sent to the parties; Mrs Rowden was held to have been unfairly dismissed, she had been unlawfully discriminated against contrary to the 1995 Act and her claims for wrongful dismissal and for unlawful deduction of wages were found proved. Despite that comprehensive victory a study of the Extended Reasons shewed she had failed in her claim for discrimination under section 5 (1) of the 1995 Act. On 4th September 2000 the Employment Appeal Tribunal received Mrs Rowden's Notice of Appeal, directed to that failure.
5. Section 5 (1) of the Act provides:-

"5. Meaning of "discrimination"

(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."

The words "for a reason which relates to the ...... disability" in section 5 (1) (a) are strikingly different to the descriptions of the causative links used in the other discrimination Acts. Thus in the Sex Discrimination and Race Discrimination Acts the respective forms of discrimination consist of treatment "on the ground of sex" - 1975 Act section 1 (1) (a) or "on racial grounds" - 1976 Act section 1 (1) (a). The victimisation provisions involve treatment "by reason that" a protected act has been done or is intended or suspected - 1975 Act section 4 (1); 1976 Act section 2 (12). Had the model of the earlier Acts been intended by the legislation to have been adopted when the 1995 Act came to be framed, one might have expected to see section 5 (1) speaking of treatment "on the ground of" the disabled person's disability or perhaps "by reason that" the claimant was disabled. However, instead (and it can only have been deliberate) the 1995 Act uses the expression "for a reason which relates to the ..... disability". Whilst everything done "on the ground" of the disability or by reason of it would inescapably fall within that phrase, the need for the reason merely "to relate to" the disability can only, in our view, be wider and more inclusive than the use of the 1975 and 1976 Act models would have suggested. The Court of Appeal has already commented on the dangers of approaching the 1995 Act upon the basis of assumptions and concepts derived from the earlier Acts - see Clark -v- Novacold [1999] IRLR 318 at paras 30 and 91 - and we shall adopt as permitted a width to the expression "which relates to" which is inclusive of causative links beyond those which would fall within "on the ground of disability" or "by reason of" the disability. With that in mind we turn to the facts and to Mrs Rowden's grounds of appeal.

6. At the hearing before the Tribunal below the Respondent firm conceded two important matters; it was conceded that Mrs Rowden had been disabled within the meaning of the 1995 Act since 3rd July 1995 and that the firm would make no submission that her dismissal was substantially or procedurally fair. The Tribunal thus made a finding of Unfair Dismissal at the outset. Mrs Rowden's first ground of appeal, which is related to the firm's failure to implement its disciplinary process, is thus against an accepted background that the procedure leading to her dismissal had not been argued to be fair and that she was disabled at all material times.

1. Disciplinary Process

7. The exact content of the firm's disciplinary and investigatory code is not fully spelled out in the Tribunal's Extended Decisions but the Tribunal did say:-

"The Respondents did have a disciplinary and grievance procedure of sorts, though the disciplinary procedure as set out in the office manual was very brief. It provided for various kinds of warning and stated that no disciplinary action would be taken until a case had been investigated by at least two partners and if any disciplinary action were to be taken, the employee would be given a full explanation by the partners. It also provided for an appeal."

As for the facts surrounding the disciplinary process, the Tribunal held Mr Bolwell, one of the firm's partners, had become dissatisfied with Mrs Rowden and by about 30th April 1999 had decided to embark on disciplinary action. The firm was held to have been aware that there was something seriously wrong with her; her hands were covered in eczema which her doctor had put down to stress. Mrs Marsh, the firm's personnel manager (who did not give evidence) had described Mrs Rowden's hands as "red raw". It was clear, on 30th April 1999, (so held the Tribunal) that Mrs Rowden had become ill with depression. Her GP's certificate, received by the firm the next day, said so. The Tribunal continued:-

"At the beginning of May they had in their possession more than enough information which would lead them to suppose that the Applicant was ill and potentially seriously so. Despite that, they embarked on disciplinary proceedings. On 30 April, Mr Bolwell wrote to his Staff partner and Mrs Marsh putting those proceedings in train. A meeting was held three weeks later at which it was apparently agreed that the Applicant should be dismissed. The Respondents simply closed their eyes to the illness and, in consequence the disability of the Applicant. All the information was in their possession, but they failed to act on it. Indeed, they did not even follow their own disciplinary procedure conscientiously. In our view, they wholly failed to make the most elementary adjustments pursuant to Section 6 DDA; they simply ploughed on with her dismissal regardless. A number of adjustments could have been made. They should at least have adjusted their disciplinary procedure to take account of the Applicant's disability."

A little later the Tribunal continued:-

".... they should have adjourned any disciplinary hearing until the Applicant was fit enough to attend and properly deal with matters. It was suggested by Mr Dineen that the Respondents could not be liable under Section 6 because they did not know of her disability. We reject that contention. As ample information in their possession at the time of dismissal to know that the Applicant was ill and could be suffering from an impairment that could amount to disability. We find that they closed their eyes to the possibility of disability. Any conscientious employer would have realised the situation and made appropriate adjustments to the disciplinary procedure. In our view, it would be wholly contrary to the intention of the DDA if an employer could escape liability by closing his eyes to the existence of disability. Having reviewed the evidence with the utmost care against the clear legislative requirements of Section 6, we come firmly to the conclusion that the Respondents failed to make adjustments to prevent their normal arrangements for disciplining employees from placing the disabled Applicant at a substantial disadvantage in comparison with persons who were not disabled."

8. Mr Doughty does not, of course, complain of the Tribunal holding the firm to have failed to comply with its section 6 duty by making adjustments to the disciplinary process but, he adds, does not this account point also to Mrs Rowden, encountering a disciplinary process not adjusted to accommodate her illness and with the firm proceeding with it in her absence, being treated less favourably than the firm would have treated others who were not disabled and who, on that basis, could attend disciplinary process and give a fair account of themselves? Do not the events point also, asks Mr Doughty, to discrimination under section 5 (1) (a) leading to the detriment of an inadequate investigatory and disciplinary process being afforded to her and to dismissal, they falling within section 4 (2) (b) and (c) respectively? However, the Tribunal, when dealing with section 5 (1) held (with our emphasis):-

"The dismissal of the Applicant and, indeed, any other detriment to which she was subjected, were not related to her disability but to other matters referred to in the letter of dismissal."

We shall be referring in more detail to the letter of dismissal but suffice to say at this stage that there appears to be no possible relationship between the matters in it on the one hand and, on the other, the firm's failure to investigate Mrs Rowden's alleged shortcomings and failure to offer her a fair disciplinary process, one with her present and able to cope with the matter. Although the Tribunal's words "any other detriment" could cover the detriment of an inadequate or non-existent disciplinary process, one in her absence, the Tribunal never explained how that detriment came to be regarded as unrelated to her disability given their later remarks that, in regard to the disciplinary process, the firm had closed its eyes to her disability, had failed to make the most elementary adjustments under section 6 of the 1975 Act and had "ploughed on" regardless, without adjourning until she was able to attend and to deal properly with the matter. Whilst there was no explicit finding of this being the case, it can only be assumed that it was, above all, her absence off sick that made the process inadequate or caused none to be offered to her and that absence was, surely, related to her disability. No other reason was given for it. It is as if the Tribunal felt that as the inadequacy of the disciplinary process was held to be in breach of section 6 and thus showed the firm to be discriminating under section 5 (2) the same events either could not or need not be found to represent discrimination under section 5 (1). Whatever the reason, we hold the Tribunal to have erred in law in not finding the inadequate process in her absence or the failure to offer her adequate process to be a less favourable treatment related to the disability or at least in not explaining why that was not the case. It may, of course, be that this argument was not developed below as fully as it was before us but Mr Dineen does not say that the point was not raised below and so we find the alternative errors of law we have described.

2. The Dismissal

9. We have already cited the passage in which the Tribunal concluded that the dismissal was not related to Mrs Rowden's disability but to the matters referred to in the letter of dismissal. The Tribunal continued:-

"We believe there was little or no justification for the assertions in the letter of dismissal or in Mr Bolwell's memorandum that preceded it, but whatever the merits of those reasons for dismissal, they were not related to her disability."

Mr Bolwell's memo of the 30th April 1999 was written to another partner and to the firm's Personnel Manager, Brenda Marsh, and concluded with the suggestion that a long and hard look should be given to Mrs Rowden's contract. He had already suggested that one incident (in which Mrs Rowden was said to have refused to assist with completion of a trial bundle for him) should be investigated and in his memo he referred to her taking off more sick time than anyone else in the office, about her abusing the smoking privilege and about the quantity and quality of her work. On 20th May 1999 the Executive Committee of the firm met and decided to dismiss Mrs Rowden. The Tribunal held:-

"(17) ........ It recorded that it had been decided to dismiss the Applicant on the following grounds:-

(a) Consistent poor time-keeping over the last six months (though it was admitted that the Applicant had probably not been warned of this either verbally or in writing).


(b) Abuse of the smoking privilege.


(c) Deliberate sabotage of Miss Smith's typing.


(d) A refusal to carry out instructions from him (Mr Bolwell).


(e) Excessive sick leave in calendar years 1998 and 1999.

(18) A letter of dismissal was drafted by Mr Bowden the following day, 21 May 1999, giving as reasons for the dismissal all the letters referred to by Mr Bolwell in his memorandum, plus a reference to the removal of conveyancing materials from the premises without notifying or seeking the approval of the departmental head or line manager."

The Tribunal, as we have seen, believed there was little or no justification for the assertions in that letter. Below Mr Doughty had asked the Tribunal to apply the principles of King -v- G.B. China Centre [1991] IRLR 513. That, of course, was a case of racial discrimination but there are analogies to be drawn with disability discrimination. Neill L.J., giving the judgment in that case which attracted agreement from Nourse L.J. and Sir John Megaw, began by citing a passage from Khanna -v- Ministry of Defence [1981] IRLR 331 at paragraph 16 where Browne-Wilkinson J. had made the point that whilst racial discrimination undoubtedly existed at large it was highly improbable that the discriminator should admit it, even to himself. Without our attempting to rank racial discrimination and disability discrimination in some order of moral turpitude they are now equally offensive under the law and the likelihood of an admission by a discriminator offending the 1995 Act is hardly greater than in race cases. Direct evidence of disability discrimination can be quite as unusual to find as that of race or sex discrimination. As was said in King at paragraph 38 (2):-

"In some cases the discrimination will not be ill-intentioned but merely based on an assumption "he or she would not have fitted in"."

So, as in race cases, the outcome will often depend on the propriety of drawing inferences from primary facts. Just as a finding of a difference of race, usually a plain enough issue, can lead to the employer being looked to for an explanation, so also a finding of a disability coupled with something that could be discrimination should, in our view, equally lead to the employer being asked to explain himself. Continuing with citation from King at paragraph 38:-

"If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds."

Later cases have emphasised that it only "may" be legitimate so to infer but, with that reservation, and conscious, too, that adjustment needs to be made because Neill L.J. was there assuming that there had been discrimination, we see no reason why a corresponding approach should not be taken to the questions of whether there has been less favourable treatment within section 5 (1) of the 1995 Act and what had been the reason for it.

10. However, the Tribunal below did not adopt any such approach.
11. The employer sought to explain the dismissal by reference to six grounds. The Tribunal believed that there was little or no justification for those assertions. If we are right to apply an approach analogous to King supra then the position surely was that an unsatisfactory explanation had been given by the employer for an act - the dismissal - that could amount to disability discrimination and in the further circumstance that the dismissal occurred without that fair disciplinary process which was prescribed for all employees being deployed, the failure to afford which was held to be in breach of the 1995 Act. If King, as we think it should, provides some analogy, it was thus open to the Tribunal to infer disability discrimination. Further, of the 6 grounds the firm had relied on, two (poor time-keeping and excessive sick leave) plainly could have been related to Mrs Rowden's disability, which was conceded to have existed from July 1995. Speaking of the 6 reasons advanced for the dismissal, the Tribunal, as we have already cited, said:-

"... but whatever the merits of those reasons for dismissal, they were not related to her disability."

There was thus, held the Tribunal, no liability under section 5 (1). That, in our view, represents error of law; it fails to recognise that the Tribunal might have drawn inferences from the lack of merit in the firm's explanation and it fails to explain why two of the grounds, which could have been related to the disability, were held not in fact to relate to it. The Tribunal, it would seem, were impressed by Mr Dineen's argument that Mrs Rowden's final absence from work by reason of disability (depression) was not the reason for her dismissal but (the Tribunal continued, reciting the argument) merely the trigger which set in train a series of events which led to her dismissal. What caused the absences to be a reason for dismissal, ran the argument, was their unacceptable total quantum. We are unconvinced that that provided any escape for the firm. Section 5 (1) does not require that the reason which relates to the person's disability has to be the only reason for the less favourable treatment so long as it has a significant influence on the outcome - adopting, by analogy, Nagarajan -v- London Regional Transport [1999] ICR 877 at 886 f. Further, as we have observed earlier, the words "which relates to" widen the meaning beyond the reason of the disability alone.

12. We have thus found error of law in the Tribunal's decision and we set it aside so far only as it consisted of a refusal to find liability under section 5 (1). However, we are far from sure that but for such error the Tribunal could properly have concluded only that section 5 (1) was breached. Even the error we have described in paragraph 8 above in respect of disciplinary process may have been a failure sufficiently to explain rather than the alternative substantive error. We therefore see the case as one for remission. Neither party has in our view any ground for a loss of confidence in the Tribunal which heard the case in 2000 and we remit to the same Tribunal as before unless, in the view of the Regional Chairman, re-constituting that Tribunal is either no longer possible or would significantly delay the further hearing. The remitted question is whether, in the light of the law as we have set it out, the firm did discriminate against Mrs Rowden within section 5 (1) of the Act. It will be for the Employment Tribunal to decide whether it requires any and if so what further evidence in order fully to deal with that question. It may be prudent for it to arrange a directions hearing on the point, especially as Mrs Rowden's advisers wish to make something of the firm's failure to deal with a grievance about bullying which they say was lodged by Mrs Rowden, a subject touched on in paragraph 18 of her Statement of Complaint but not featuring in the Tribunal's decision. We thus allow the appeal and remit to the same Tribunal as before to the limited extent which we have explained.