United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS SARAH MOOR (of Counsel) Instructed by: Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW


 


MR JUSTICE WALL

1. This appeal was listed for preliminary hearing on 16 May 2002. As is customary in those circumstances, there was no appearance on behalf of the Respondent, the London Borough of Camden. At the conclusion of a helpful and careful argument put forward by Ms Sarah Moor, on behalf of the Appellant, we announce that, in our judgment, the appeal did not give rise to an arguable point of law, and would, accordingly, be dismissed at this stage. However, because the point raised (whilst unarguable) was nonetheless of some importance, we took the unusual step of announcing our Decision, but reserving our Reasons. These we now give.

The Facts

2. The Appellant, Anne Bray, is a Senior Benefits Assessor employed by the London Borough of Camden ("Camden"). She began her employment with Camden on 17 August 1987 and remains in Camden's employment. Unfortunately, in about 1984 the Appellant began to suffer from Osteoarthritis, and has been registered as disabled since August 1999.
3. The Appellant works within Camden's Housing Benefits Office in a team of thirteen people. Of these thirteen, seven are qualified to be able to perform the statutory functions required for the assessment of Housing Benefit. The Tribunal pointed out as a relevant consideration in this case that there is a fourteen day statutory time limit on the turnaround for applications for benefit.
4. The Appellant has had a number of absences arising from her disability from 1996 onwards. The Tribunal found that all her absences from work through ill health related to her disability, with the exception of a few days absence in relation to a chest infection.
5. The Tribunal tabulated the Appellant's absences. They were as follows:

"1996 - 1997 - 150 days' absence for a knee operation
1997- 1998 - 20 days' absence for a knee operation
1998 - 1999 66 days' absence for a knee operation
1999 - 2000 - 172 days' absence for a back operation
2000 - 2001 - 49 days' absence for a thumb operation"

On any view these are substantial periods of absence.

6. Camden operates what it describes as a "Joint Misconduct and Incapability Procedure". Incapability is defined in a paragraph which also deals with work behaviour or performance falling below its expected standard, owing to lack of skill or ability. Although not directly relevant to our Decision, we regard it as unfortunate that the two concepts are conjoined in this way. Throughout her submissions to us, Ms Moor referred to the "disciplinary" final warning which the Appellant had received. We thought this description somewhat misleading. Nobody suggests that the Appellant is not good at her job: to the contrary, when she is available she does it well. In the course of this judgment, we have to differentiate between incapability as work behaviour or performance that falls below the expected standard owing to lack of skill or ability, and incapability in the sense in which it is meant in the instant case, namely: that:

"…..where an employee has high levels of genuine sickness absence or is incapable of carrying out their job owing to ill-health. Incapability has a detrimental effect on service delivery but it is not wilful and cases involving ill-health capability will be treated with tact and sensitivity."

7. Camden's "Incapability" procedure requires a number of stages to be followed. These, however, need not be dealt with sequentially. They are (1) an oral warning; (2) a written warning; (3) a final written warning; (4) Dismissal. In relation to incapability, the management guidelines draw to the attention of Managers that in dealing with matters of ill-health, an employee with a disability should be treated taking into account the Disability Discrimination Act 1995 thereby ensuring that the disabled employee is not treated less favourably than another employee, and that consideration has been given to making reasonable adjustments when taking formal action.
8. In addition to its joint Misconduct and Incapability Procedure, Camden has a "Managing Sickness Absence Policy". This policy sets targets for sickness absence. Key target dates are a maximum of eight days sickness absence per employee in a twelve month period, with trigger dates for action by management after fifteen days, thirty days or seventy days. In relation to the latter the policy reads:

"In a small number of cases that reach this level of sickness absence, the manager must consider what further action to take under the Council's Misconduct and Incapability Procedure. It would be expected either an oral, written or final written warning would already have been issued. If a live warning exists then it is important for this matter to be referred back to a formal interview within the time scales of the warning. As well as [sic] the options available for consideration at this further formal interview is dismissal, then this further formal interview must be Chaired by a Third Tier Officer or above."

9. What happened in relation to the Appellant's case was that following each of her absences for operations, she had a meeting with her then manager under the then sickness procedure. Such meetings took place on 12 August 1996 and 14 October 1997. On her return in November 1999, following the 172 days absence, she met with her Manager with a view to returning to work and arranging the date of return. Ultimately she returned on 29 November 1999, having exhausted her right to sick pay. She returned on reduced hours until Christmas, performing full hours once she went back to work in January 2000.
10. At the meeting with her Manager in November 1999, a number of adjustments were agreed as required to assist the Appellant's return to work. An independent assessor, called Abilitynet was appointed to carry out a workplace assessment. Abilitynet made a number of recommendations, most of which were carried out.
11. In January 2000, a new Manager took over. She was Ms Lynne Johnson. Ms Johnson took the view that as the Appellant's return to work was so recent, it was not appropriate to conduct regular a quarterly interview of sickness absence at that point.
12. Between 26 April and 14 June 2000, the Appellant was absent from work due to surgery on her thumb. The Occupational Health Department reported on the Applicant that she had made an excellent recovery, and was fit to resume her normal duties. The Occupational Health

Physician said:

"As regards her long term capabilities it is possible by the nature of her condition that she will have future problems that may require further sickness absences and it is probable that her present pattern of sickness will continue."

13. Ms Johnson was not able to hold a formal interview with the Appellant under the Incapability Procedure until 7 September 2000. By this time, there was a report from the Appellant's Consultant Orthopaedic Surgeon which confirmed that the Appellant had recovered well from her operation and was discharged from the Orthopaedic Clinic. The report stated:

"She currently has no orthopaedic complaints of which I am aware and I have no plans to see her again nor to perform any further surgery."

14. After this interview, Ms Johnson decided that the Appellant should be given a final written warning under the procedure. Accordingly, she wrote to the Appellant in these terms:

"As you are aware, I considered your high level of sickness absence - 173 days over the past 12 months - and the effect this has had on your ability to carry out your job and the service delivery of the Benefits Division. My decision is that you should be issued with a final written warning……

I considered statements from Dr Mallison, Occupational Health Physician, which you disputed in part. I also considered a letter from your Doctor and a letter from your Consultant in support of the disputed paragraph. In coming to my view, I took account of the fact that you had stated the surgery you had undergone was preventative rather than corrective and this was done at considerable cost to yourself to enable you to stay at work. It was agreed that whilst you are at your work your performance is good."

15. The Appellant appealed against the decision to give her a final written warning. That appeal was heard on 27 October 2000 and was dismissed. On 18 January 2001, the Appellant issued her form IT1 claiming disability discrimination. She claimed that she had been unlawfully discriminated against for a reason relating to her disability in contravention of section 6(1)(a) and in particular section 6(3)(f) of the Disability Discrimination Act 1995, when, compared with one Stephen Gardiner, an able bodied man, employed by Camden as a Deputy Manager in the Benefits Division. Her argument was that to include her absence from work as a result of her disability when considering the incapability procedure for health was an action that was less favourable treatment on the grounds of disability. That would not justify, and further, the adjustment that her employers should have made was to exclude that part of her absence from work. The less favourable treatment, she said, was the receipt of the sanction of a final written warning for two years.
16. Camden conceded that to give the Appellant a final written warning was less favourable treatment within the meaning of the Disability Discrimination Act. It argued, however, that the treatment was justified within the meaning of section 5(1)(b) of the Act and that for the purposes of section 5(2)(b) the failure to make adjustments was justified.
17. The Appellant's application was heard by the Tribunal sitting at London Central on 19 and 20 July 2001, with Extended Reasons sent to the parties on 14 August 2001. The unanimous decision of the Tribunal was that Camden had not discriminated against the Appellant on the grounds of her disability. It is from that Decision that the Appellant appeals.

The Act

18. The relevant sections of the Disability Discrimination Act 1995, for present purposes, are the following:

"4 Discrimination against applicants and employees

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs -

……(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

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;
(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, an employer also discriminates against a disabled person if -

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified.…

(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.

6. Duty of employer to make adjustments

(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.

(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1) -

(f) allowing him to be absent during working hours for rehabilitation, assessment or treatment;

(7) Subject to the provisions of this section, nothing in this Part, is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others."

19. The Tribunal was also referred to paragraph 4.6 of the Code of Practice: Disability Discrimination (1996) dealing with what will and what will not be justified treatment. We do not propose to set out the terms of that paragraph.

The Tribunal's approach

20. The Tribunal asked itself firstly whether Camden's treatment of the Appellant under section 5(1) of the Act was justified. In order to answer this question, it follows the guidance given by the Court of Appeal in the recent case of Jones -v- Post Office [2001] IRLR 384. At paragraph 40 of that case, Arden LJ stated that a Tribunal faced with a claim of justification may well find it helpful to proceed by asking the following questions:

"What was the employee's disability?

What was the discrimination by the employer in respect of the employee's disability?

What was the employer's reason for treating the employee in this way?

Is there a sufficient connection between the employer's reason for discrimination and the circumstances of the particular case (including those of the employer)?

Is that reason, on examination, a substantial reason?"

21. The Tribunal also relied on paragraph 41 of the Decision in Jones where it states:

"If credible argument exists to support the employer's decision, the Employment Tribunal may not hold that the reason for discrimination is not substantial. If, however, the employer's reason is outside the bands of responses which a reasonable employer might have adopted, the reason would not be substantial."

22. The Tribunal answered the question suggested by Jones in the following way:

"The Appellant had Osteoarthritis, which required selective surgery to improve her quality of life.

The employer [Camden] discriminated against the Appellant by imposing on her a final written warning in relation to her lengthy absences through ill-health, including in the calculation of those absences, absences arising from her operations to address her disability.

The Applicant had been absent from work for a period of 172 days in 1999 - 2000.

The employer [Camden] says that there was an impact on service delivery. The Tribunal accepted that this is a credible argument although no specific evidence was adduced to this point. It is however self-evidence that to remove one of the 7 people able to perform the role as Housing Benefits Officer must have a serious impact on service delivery particularly where there are statutory time limits to be complied with in dealing with claims. No evidence was adduced to show that when the Appellant was not in work or if she had been dismissed as a result of her absences she would not be replaced. No argument was put forward by the Appellant to that effect. We therefore inferred from our own general knowledge of how offices function, that to remove for a long period of time a senior member of staff able to fulfil a statutory function, must have an impact on service delivery. In this particular case the connection between the reason for making the decision and the circumstances of the Appellant's case is that Ms Bray [the Appellant] was absent from work for a long period of time, it was for a reason of ill-health, it was more than the 70 days trigger date set out in the managing sickness policy, there was a duty on the employer to explore with an employee the reasons for the absence, the prognosis for the future and how this was to be addressed.

It is not for the Tribunal to substitute its own view for that of the employer. The employer had before it a medical report from its own Occupational Health Officer suggesting that, although the Appellant was fine now, there was a likelihood of future surgery. The employer also knew what was said by the General Practitioner and the Orthopaedic Surgeon. The employer further knew the history, the wider picture, of Ms Bray's absences. This was not a one-off operation such as a single hip operation but was one of many operations over a period of 4 years which had resulted in an average of 100 days per working year sickness absence. To take action in relation to that degree of sickness absence would be the action of any reasonable employer. The Appellant [Ms Bray] had been absent for more than 1/3^rd of her potential working days over that period."

23. The Tribunal was, accordingly, satisfied that Camden was justified in taking action in relation to a person who was absent through ill-health.
24. The Tribunal rejected the allegation that the Appellant had been treated differently from a colleague, who had been absent following an accident which involved an injury to his brain. Camden drew to the attention of the Tribunal the sickness policy which prescribed that where a person was absent owing to a potential life-threatening illness, this represented an exclusion. Furthermore, it was a one-off accident, not a series of absences.
25. For all these reasons, the Tribunal was satisfied that the treatment of the Appellant within section 5(1) of the Disability Discrimination Act 1995 was justified.

"Was the failure to make an adjustment under Section 6 justified?"

26. It was this aspect which formed the primary basis of the Appellant's appeal. The adjustment she proposed was that:

"… the entire part of her sickness absence that related to her disability should be disregarded for the purposes of the Incapability Procedure. This would leave her with a few days absence for a chest infection which [in turn] would not have led her into the remit of the procedure."

27. The Appellant relied upon the terms of section 6(3)(f) and section 6(4) of the Act which we have set out above. She argued that she came within the phrase:

"allowing a person to be absent during working hours for …… treatment is a reasonable adjustment that might be made."

Camden, on the other hand, argued that section 6(3)(f) was inapt to encompass the Appellant's condition, and applied in a limited sense, for example, to a person who required regular physiotherapy and is therefore absent from work for a limited period of time.

28. The Tribunal's reasoning in rejecting the Appellant's claim is set out in paragraphs 25 - 29 of its Reasons. These read as follows:

"25 In considering Section 6(4) we considered the purpose of the Incapability Procedure. A sickness procedure is in place with target dates with a view to encouraging attendance at work and prevent absenteeism. Whilst it has not at any point been suggested to the Tribunal that there were any unnecessary absences from work by Ms Bray, it is immediately apparent that if such absence was to fall outside the sickness policy it would generate enormous ill-feeling and a potential for unauthorised absenteeism to grow. The extent to which taking the step would prevent the effect in question i.e. being the subject of a disciplinary sanction because of absence, clearly excluding the disability related absences, would have that impact. But, in our view, it would not be a practical step for the employer to take. It would severely undermine the scope and range of the sickness procedures and it would have a financial impact on the employer and disrupt its activities in particular its ability to perform its statutory function. It is particularly starkly demonstrated in this case in that the Local Authority has statutory functions in relation to Housing Benefit, which must be performed within prescribed time limits. A failure to ensure that there are adequate personnel to perform that function would have an impact on the Local Authority itself and underpins the purpose of having a sickness absence procedure to ensure there are adequate personnel to perform that function.

26 Furthermore, we considered that to treat a person who was absent through ill-health - albeit related to the disability - differently from the person who was not disabled, would amount to a breach of Section 6(7) namely, that it would be tantamount to treating a disabled person more favourably than others.

27 We were clear from the evidence given before us that had Ms Bray not had the disability she had and attained this level of sickness absence she would not have been given a final written warning but would, in all probability, have been dismissed.

28 Following the reasoning set out Jones -v- The Post Office we are satisfied that there is a connection between the failure to provide the adjustment namely, it is not reasonable to ignore disability related absences when operating the sickness procedures. It may well be taken into account as mitigation and explanation as to why there are those absences, but it cannot be said, in this particular case, that the level of absence is scarcely more than that which would be expected for a person without the disability as described in paragraph 4.6 of the Code of Practice. This is a substantial period of absence viewed over a number of years. We are satisfied therefore that not only is it not a reasonable adjustment to make but if it were such an adjustment then the employer is justified in not making that adjustment.

29 We therefore conclude that, as a matter of principle, it is not a reasonable adjustment to ignore the disability related absences when calculating sickness leave and as such the respondents were justified in the action they took in imposing a final written warning on the Applicant arising from her very substantial amount of absence."

29. The first ground taken in the Notice of Appeal is in these terms:

"The Tribunal identify the less favourable treatment as being the issuing to the Appellant of a final written warning. They identify the reasons for the treatment being the Appellant's absence from work. In assessing whether the treatment is justified under Section 5(3), the Tribunal consider whether the reason given was material to the circumstances of the case. In so doing (paragraph 19), the Employment Tribunal erred in law in deciding the issue by reference to the removal of a member of staff having a serious impact on service delivery. As a matter of law, the issue that requires to be addressed is whether the issuing of a final written warning is material to the circumstances of the Appellant's and Respondent's case. The Tribunal erred in failing to address this."

30. The main thrust, however, of the attack on the Tribunal's Reasons relates to the argument under section 5(2) and section 6. Ground 13 of the Notice of Appeal reads as follows:

"13 In paragraph 24, the Tribunal concluded that the adjustment proposed by the Appellant, namely the exclusion of her disability related absence from the particular part of the misconduct procedure that was applied to her, was not reasonable. The Tribunal's explanation as to why such an adjustment would not be reasonable is set out in paragraph 25 of their decision. The Tribunal erred in law in their assessment of what was reasonable:-

a) The Tribunal incorrectly identified the proposed adjustment in paragraph 25. For example in the final sentence at paragraph 25 it is incorrectly stated that the proposed adjustment involved removing any sort of sickness absence procedure. This incorrect identification is reflected elsewhere: paragraph 25 lines 1-2 reference is made to the "Incapability Procedure" generally. Paragraph 29 refers to "calculating sickness leave". Paragraph 28, in considering whether the failure to adjust was justified, refers to "operating the sickness procedures".

b) The Tribunal stated that the proposed adjustment was unreasonable in that "it would generate enormous ill feeling". The generation of ill feeling does not render an adjustment unreasonable. In any event, there was no evidence before the Tribunal upon which they could reach such a conclusion.

c) The Tribunal stated that the adjustment was not reasonable in that it would generate "a potential for unauthorised absenteeism to grow". There was no evidence before the Tribunal on which they could base such a conclusion.

d) The Tribunal stated that the removal of disability related absence from the misconduct procedure would "severely undermine the scope and range of the sickness procedures". This statement is tautologous and cannot alone contribute to the analysis of whether or not an adjustment is reasonable.

e) The Tribunal explained that removing disability related absence from the misconduct procedure in the particular circumstances of the Appellant's case would "have a financial impact on the employer and disrupt its activities". There was no evidence before the Tribunal on which they could base such a conclusion. Further, to the extent that the Tribunal have suggested that the removal of the Appellant's sickness absence from the misconduct procedures in the particular circumstances of her case, can be equated with a failure to ensure that there are adequate personnel to perform a function, then there was no evidence before the Tribunal to enable them to equate these two facts. In any event, such an equation cannot be justified as a matter of law in the circumstances of the case."

31. Ms Moor's followed through these grounds in her Skeleton Argument. She submitted that the Tribunal erred in law in deciding that there was a potential to generate ill feeling, thereby taking into account any relevant consideration and reaching a perverse Decision. She also argued that the Tribunal erred in law in deciding that the adjustment was unreasonable due to the potential for unauthorised absenteeism to grow. She submitted that the question for the Tribunal related to the individual circumstances of the Appellant's case, in which it was not contended that any of the absences were unnecessary. She argued that the finding that adjustment in a genuine case would lead to exploitation by non genuine employees was perverse. There was also, she submitted, no evidence on which the Tribunal could have based that Decision. She also submitted that the Tribunal's finding that there was a financial impact in the adjustment sought was perverse, in that there was no connection between a disciplinary warning and any financial consequences, and there was no evidence upon which the Tribunal could have based this Decision.
32. She further argued that the Tribunal had misunderstood the Appellant's case. Removal from the sickness procedure generally was not part of her argument. This false description, she submitted, led the Tribunal into considering the matter in principle, when it was the particular circumstances of the Appellant's case it was required to consider.
33. Ms Moor also argued that the question for the Tribunal to consider was whether Camden's final warning to the Appellant was justified. This required the Tribunal to consider the circumstances of the particular case. As a consequence, she argued, the Tribunal erred in considering the wider question of whether it was appropriate to "take action". The particular circumstances of the case were about the reasons for the warning, not general action.
34. Finally, Ms Moor argued that the Tribunal's Decision was perverse, given the good prognosis on the return of the Appellant. She argued that a warning served no useful purpose. If there was a dispute about the prognosis, this was not a matter for the Tribunal to determine. Rather it was required to consider whether Camden had determined the dispute against the Appellant, whether in fact it had made no finding about it.
35. We are in absolutely no doubt that the Tribunal's reasoning is unimpeachable and its Decision impregnable. The logical consequences of the argument that an employer should exclude from consideration the entire part of an employee's sickness absence related to disability would be that an employee could be absent throughout the working year without the employer being in a position to take any action in relation to that absence. In our view, the Tribunal was correct, as a matter of good sense, to take the point that if any such absences were to fall outside the sickness policy it would generate enormous ill-feeling and be a potential for unauthorised absenteeism. In any event, it would not, as the Tribunal recognised, be a practical step for an employer to take. It would severely undermine the scope and range of the sickness procedures, and would have a financial impact on the employer and disrupt its activities, in particular its ability to perform its statutory function. The Tribunal was, in our view, correct to point to the fact that in the instant case Camden had a statutory responsibility to process applications for Housing Benefit, which would be adversely affected if the Appellant's submissions were correct and put into effect.
36. We can detect no error in the Tribunal's reasoning: to the contrary, it seems to us that the Tribunal correctly followed the guidance given in Jones -v- The Post Office, and answered the questions posed in paragraph 40 of that case in a manner to which no exception can be taken.
37. It follows, that the Tribunal's conclusion that it is not a reasonable adjustment to ignore the disability related absences when calculating sickness leave cannot, as a matter of law, be faulted. Nor can the following conclusion that Camden was justified in the action it took in imposing a final written warning on the Appellant, arising from her very substantial amount of absence. For these reasons, the appeal is dismissed.