United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A ELESINOLA (of Counsel) Instructed by: Free Representation Unit Fourth Floor Peer House 8-14 Verulam Street London WC1X 8LZ
For the Respondents	MR RICHARD POWELL (Solicitor) Messrs Dibb Lupton Alsop Solicitors Victoria Square House Victoria Square Birmingham B2 4DL


 


MR COMMISSIONER HOWELL QC

1. In this appeal which is before us today for a full hearing, pursuant to directions of the Appeal Tribunal given at the preliminary hearing on 26 March 2001, Miss S Lyons, formerly Mrs Sharon Yacoubi, seeks to have set aside as erroneous in law the Decision of the Stratford Employment Tribunal, sitting on 11 October 2000, set out in Extended Reasons sent to the parties on 17 October 2000 at pages 4 - 9 inclusive of the appeal file before us.
2. The proceedings before the Tribunal had been brought by the Applicant (I will refer to her as Miss Lyons) against her employers, Tesco Ltd, with whom she had been a customer assistant from 22 March 1997. Miss Lyons has the misfortune to suffer from an unpleasant condition of ulcerative colitis, and one of the issues before the Tribunal which is not in dispute before us, was whether, by reason of that condition, she counted as a disabled person at all material times for the purposes of the Disability Discrimination Act 1995. That is not now in dispute. What is in dispute, on the Tribunal's rejection of her complaint of discrimination against her as a disabled person, arising out of what happened at a meeting in February 1999 which she was required to attend with the management, is whether the Tribunal correctly directed themselves to the questions required to be answered under section 5(1) of the Disability Discrimination Act 1995, in determining whether discrimination had taken place against her at all.
3. The only material events against which that question had to be determined were those at the meeting with the management, in particular a Mr Smith and a Ms Stone, which took place on 19 February 1999. The Applicant, who was at that time away from work and certified unfit to attend for medical reasons, was asked during the course of the interview about an earlier attempt to return to work in the week beginning 1 February, which had been unsuccessful because she had subsequently felt too ill again to return. One of the issues at the meeting was whether her condition had been adversely affected by the fact, which was admitted, that on the evening of 1 February 1999, she had visited a night club with her mother, that being the first day she had come back to work after her previous absence.
4. The more detailed facts appear from the Tribunal's Extended Reasons. It is not necessary to repeat them extensively in this judgment but one or two of the passages, which were referred to in the course of argument before us, need to be recorded. Under paragraph 4 of their Extended Reasons, the Tribunal set out, with admirable clarity, the relevant facts on which they based their Decision, including sub-paragraphs (c) - (h):

"(c) The Applicant had some periods away from work through ill health when she received telephone calls from managers asking about her return. She felt that these were unnecessary as she had medical certificates to cover these absences. These were, in 1998, for one incident of "poisonous finger" and another of suspected food poisoning. Towards the end of 1998 her colitis seemed to be getting worse and she visited her doctor and was hospitalised for a period of time. She was away from work for all of January but it was suggested by her general practitioner that she should return at the beginning of February. The Applicant was not sure that she was well enough to return to work but did so on 1 February 1999.

(d) She worked for three hours on 1 February 1999, between 6 pm and 9 pm, and then drove to Ilford, some miles away, to go with her mother to a night club. She stayed there until around 2 am. She was not working on the Tuesday or the Wednesday, but felt unwell again on the Thursday and did not go to work. She went to the doctors on either the Thursday or the Friday, 4 or 5 February, and there is some confusion about what she was told by the doctor. The Applicant indicated to the doctor that she could not afford to have any more time away from work and thought that her doctor said that she should attend work. However, her doctor also gave her a sick note for four weeks for further hospital investigation to take place.

(e) When the Applicant went in to work that day she was spoken to by her line manager, Deborah Eagland, as there was some confusion about whether the Applicant was well enough to be at work. Phone calls were made from the store to the Applicant's doctor and the Applicant spoke to the doctor's receptionist, who suggested that she should not remain at work and should go back to see the doctor on Monday. This is effectively what happened.

(f) There was concern by the Applicant's managers that there was confusion over whether she was well enough to return to work and the fact that they learned that she had attended a night club the evening after her first day of return to work.

(g) A decision was made to ask the Applicant to attend a meeting to discuss this, and this took place on 19 February 1999 with Colin Smith and Michele Stone present………

"(h) During the course of this interview, the Applicant was asked about her return to work in the week beginning 1 February and her attendance at a night club, given that one of her symptoms was that she was often quite tired. The Applicant also recalls that questions were asked about the more detailed symptoms of her condition but the Respondents deny this level of detail was gone into. Mr Smith indicated that he was not prepared to continue to pay her sick pay because he felt her attendance at the night club might have aggravated her symptoms. However, this was a mistake as the Applicant's entitlement to sick pay had already expired. There was some confusion about statutory sick pay and a mistake made by Payroll but, in the event, the Applicant received her statutory sick pay in the usual way. Following this meeting, the Applicant put in her claim to the Employment Tribunal."

And then as the Tribunal recorded, in paragraph 5:

"The Applicant's condition is such that she suffers from a degree of incontinence."

In particular, she told the Tribunal some details about this and that she has a considerable amount of pain and that walking had become difficult.

5. The submissions by the Applicant were referred to by the Tribunal in paragraph 7. The first submission was that the Applicant was disabled, and then on that basis, the Applicant submitted that there was less favourable treatment in three aspects of the Applicant's treatment, and I am now quoting from paragraph 7 of the Extended Reasons:

"…firstly, that it was not necessary to hold the meeting at all as the Respondents had sick notes in respect of the Applicant's absence, second, that the tenor and tone of the meeting was unacceptable and thirdly, that the refusal to pay sick pay were discriminatory treatment."

The Tribunal then directed itself as to the provisions of the Disability Discrimination Act 1995 and the law, and correctly directed themselves to the leading authority in this area, Clark -v- Novacold [1999] IRLR 318, to which we shall return, on the question of identifying a proper comparator for the purposes of the establishment of less favourable treatment under section 5(1)(a) of the Act.

6. The Tribunal's conclusions were expressed fairly shortly in paragraphs 10 - 13 of their Extended Reasons as follows, and it is convenient to set out those paragraphs in full before returning to deal with the issues before us on the appeal.

"10 The Tribunal are satisfied that the Applicant is disabled within the definition contained within the Act. They are satisfied that there is a substantial adverse effect on normal day to day activities in respect of the Applicant. In particular, it is quite clear from the evidence she gave that continence is adversely affected and it is reasonable for the Tribunal to conclude that that is a substantial effect.

11 The Tribunal therefore went on to consider the treatment about which the Applicant complains. The Tribunal are satisfied that the meeting which was held did indeed relate to the Applicant's disability. That meeting was to deal with the Applicant's return from long-term sickness absence and the fact that she had only been back for a very short time before she became unfit for work again. It also related to the fact that she went to a night club after a day of work, but in relation to how that affected her symptoms so that that is clearly a matter which is connected to the Applicant's disability.

12. The Tribunal therefore went on to consider whether the Applicant had received less favourable treatment. The Applicant was not able to point to any individuals who had been treated differently and the Tribunal therefore had to make assumptions, having heard the evidence of the Applicant and Mr Smith. The Tribunal can see nothing in the tone or content of that meeting which could amount to less favourable treatment. The Tribunal accepts Mr Smith's evidence that he would have had a similar conversation with anyone where a formal meeting was necessary in similar circumstances. Mr Smith now accepts that he may have been perhaps a little insensitive but there is nothing in the conversation that was held that day which it appears to this Tribunal to be anything which would not be said to another employee attending in similar circumstances. The Respondents were clearly entitled to have a discussion with the Applicant about her condition and to put to her the question about going to a night club and how that might affect her tiredness, which is a symptom of her condition. Whilst the Applicant might have been upset about the way she was spoken to, the Tribunal does not accept that such a conversation could amount to less favourable treatment.

13 For these reasons, the Tribunal did not deal with the question of whether the treatment was justified as it is not satisfied that there was any discriminatory treatment whatsoever. For these reasons, the application fails and is dismissed."

7. Against that Decision, pursuant to the directions of the Appeal Tribunal at the preliminary hearing, Miss Lyons seeks to appeal on one ground only, that in making the comparisons they did, in paragraph 12 of their Extended Reasons, and determining the issue of less favourable treatment by reference to what they identified on two occasions, as another employee summoned to and attending a meeting in "similar circumstances", the Tribunal had, notwithstanding their express reference to Clark -v- Novacold, misdirected themselves as to the effect of that Decision, and as to the nature of the comparison required by section 5(1)(a).
8. In particular, it said, and this was developed by Mr Elesinola, who appeared on Miss Lyons' behalf before us on the appeal, that the attempt to construct a set of hypothetical similar circumstances, subtracting the issue of disability, was an error in law. That was not the correct test which, as the Court of Appeal had made clear in Clark -v- Novacold, was that the comparison was instead to be between the actual treatment of the disabled employee and the treatment of others to whom that reason does not, or would not, apply. That was a fundamentally different type of comparison required for the purposes of this legislation, and the Tribunal had insufficiently differentiated the nature of the enquiry for a disability discrimination case, from the more familiar basis of enquiry, by reference to an actual or hypothetical comparator whose circumstances were not materially different, to which a Tribunal, and indeed, all practitioners in this area, are used in the sex discrimination and race discrimination legislation.
9. It was not in dispute between Mr Elesinola and Mr Powell, who appeared on behalf of the Respondent before us, that the basic principles in this area, by which we and the Employment Tribunal below are bound, were those laid down in the judgment of Lord Justice Mummery in the Court of Appeal in Clark -v- Novacold. Again, it is not necessary to refer to the facts of that case in extenso. It was a case where a disabled employee had been dismissed and complained that his dismissal had been unfair and an act of discrimination against him under the Disability Discrimination Act. The reason for his dismissal was said to be capability, because by reason of his disability, he was unable to attend work.
10. The issue in the case was whether that constituted less favourable treatment for the purposes of section 5(1)(a). The particular issue on which the argument turned, was whether the less favourable treatment under section 5(1)(a) had to be measured by reference to a hypothetical comparator who had been absent from work for an equivalent length of time by reason of some other cause than the disability which affected Mr Clark, or whether the comparison had to be between Mr Clark, who had had to spend time absent from work by reason of his disability, and another employee who was not disabled, and therefore had not had to be absent at all.
11. As Lord Justice Mummery put it in paragraph 52H of the judgment, with which the other two Lords Justices expressed their concurrence, the two questions posed by the statutory provisions are:

1) Was Mr Clark dismissed for a reason which related to his disability?

2) If so, did Novacold treat him less favourably than they would treat others to whom that reason would not apply?

Question 1 is one of fact. It is common ground that dismissal was caught by section 5(1) and the finding of the Industrial Tribunal on the reasons for dismissal was stated. It is clear that was a reason which related to his disability. By the same token, in the present case, Mr Powell, very rightly and fairly, conceded that the reason Miss Lyons had been summoned to the meeting by her managers on 19 February was for a reason which related to her disability, namely her absence from work for a prolonged period.

12. Lord Justice Mummery then proceeded, in paragraph 54 of the judgment in Clark -v- Novacold by saying:

"In order to answer question (2) it is necessary to compare Novacold's treatment of Mr Clark with the treatment of others to whom 'that reason' would not apply.

What is meant by 'that reason'?"

and then he summarised the opposing arguments on the issue. On behalf of Novacold, it had been argued that it related to the whole of the first clause in the paragraph, so that as he said on that approach, the person to whom "that reason" would not apply would be one who, like the disabled person, is incapable of performing the main functions of his job, but for a reason which does not relate to disability. That was the interpretation favoured both by the Industrial Tribunal and the Appeal Tribunal in Mr Clark's case. On the factual findings of the Tribunal, that interpretation led to the conclusion that Mr Clark was not treated less favourably than others incapable of performing the main functions of their job, for a non-disability reason.

13. Then, in paragraph 57, he considered the contrary interpretation submitted on behalf of Mr Clark, that "that reason" referred only to the first three words of the paragraph: "for a reason", and at the end of paragraph 57, Lord Justice Mummery summarised it by saying:

"On this interpretation, the others to whom 'that reason' would not apply are persons who would be capable of carrying out the main functions of their job. Those are the 'others' proposed as the proper comparators. This comparison leads to the conclusion that Mr Clark has been treated less favourably; he was dismissed for the reason that he could not perform the main functions of his job, whereas a person capable of performing the main functions of his job would not be dismissed."

And the Court of Appeal judgment then proceeded to analyse the language of section 5(1)(a) which they referred to as linguistically ambiguous, and reached the conclusion that the construction of section 5(1)(a), advanced on behalf of Mr Clark, was the correct one, and the one that should be applied by Tribunals dealing with issues of less favourable treatment in the context of disability discrimination.

14. The summary at the end of Lord Justice Mummery's judgment states those conclusions as follows, in paragraph 89 and following:

"In brief, the legal position is that:

(1) Less favourable treatment of a disabled person is only discriminatory under s.5(1) if it is justified.

(2) Treatment is less favourable if the reason for it does not or would apply to others.

(3) In deciding whether that reason does not or would not apply to other, it is not appropriate to make a comparison of the cases in the same way as in the 1975 and the 1976 Acts."

Those are the Sex Discrimination Act and Race Relations Act.

"It is simply a case of identifying others to whom the reason for the treatment does not or would not apply. The test of less favourable treatment is based on the reason for the treatment of the disabled person and not on the fact of his disability. It does not turn on a like-for-like comparison of the treatment of the disabled person and of others in similar circumstances."

15. Mr Elesinola's argument was that the Tribunal had simply and clearly misdirected themselves in having attempted to construct a comparison between Miss Lyons and other employees in "similar circumstances", attending a hypothetical meeting for other reasons than the disability reasons which led Miss Lyons to have to attend the meeting on 19 February, and thereby fell flatly within the express formulation of an attempted "like for like comparison" by Lord Justice Mummery in Clark -v- Novacold, demonstrating that the test they had applied was the incorrect one, rejected in that case.
16. In our judgment, Mr Elesinola's submissions were correct and the Tribunal did fall into the error thus identified, notwithstanding their express reference to Clark -v- Novacold in the earlier paragraph of their Decision. Despite the arguments of Mr Powell on behalf of the Respondents, we have been persuaded that the Tribunal's reasoning, as set out in particular in paragraph 12 of their Extended Reasons does demonstrate that they did exactly what the Court of Appeal, in Clark -v- Novacold , said was the wrong type of comparison to make.
17. In particular, we think that it is apparent from paragraph 12, which begins with the Tribunal expressly saying that what they are considering is the issue of less favourable treatment, rather than any other issue under the Act, and then goes on to refer to comparisons with hypothetical other employees in "similar circumstances", does demonstrate that the Tribunal were not approaching the matter on the basis of a comparison with a person who had not had to be summoned to such a meeting at all, because without the issue of absence through disability, the necessity for such a meeting would never have arisen.
18. The treatment of which the Applicant had complained, namely being summoned to the meeting and asked questions about having gone to the night club, was and could only have been for a reason directly connected to her condition. Plainly that reason could not have applied to a person not suffering her condition. In accordance with the requirements of this legislation, as explained in Clark -v- Novacold, the Tribunal's enquiry should in our judgment, having established those facts, have then moved on immediately to the question under section 5(1)(b) of whether that different treatment had been justified on all the facts of the case. This, as Novacold explains, is the issue which is destined to play a much greater part in Tribunals' analysis of disability discrimination cases than in those under the sex discrimination and race discrimination legislation, where there is a much closer and more defined focus on the assessment of less favourable treatment by reference to actual or hypothetical comparators whose circumstances are not materially different, apart from the difference in gender or race.
19. That, as Clark -v- Novacold holds, is the subject of a radical departure in the disability discrimination legislation which requires a different approach. It may be that on a common sense view, the Tribunal may have been justified on the evidence in holding that there had not been any real unfairness or impropriety in the way Miss Lyons was spoken to at the meeting, but, in accordance with Novacold, that was not the issue to which they should have been directing themselves. In our judgment, therefore, they erred in deciding that there was no discriminatory treatment because there had been no less favourable treatment for the reasons they gave, and erred in not going on to address the question of justification which was, as we have said, on facts such as these, really the main issue, in a disability discrimination case, that determines whether discriminatory conduct has occurred.
20. We should deal with one additional argument advanced by Mr Powell, which was that the Tribunal's Decision could be interpreted, or at least justified, by saying that on the factual findings they made, there was really no question of any detriment having been demonstrated in the treatment Miss Lyons received; and therefore, there could have been no question of the case succeeding because it was based on an allegation of unlawful conduct by way of subjecting Miss Lyons to detriment, contrary to section 4(2)(d) of the 1995 Act. We have not been persuaded that that was actually established on the facts, as it appears from the Tribunal's findings that this meeting, requiring Miss Lyons to attend and explain herself to the management, was actually convened, not on her return from work, but while she was still absent, certified sick and unfit to work. For that reason, we think Mr Elesinola may have been right in saying that it was a meeting convened outside the standard procedure for employees to be required to attend for a meeting on the conclusion of sickness absence, which was the subject of some documentary evidence, which was shown to us.
21. For our part, we have been unpersuaded that the summoning to the meeting and the subject matter discussed at the meeting did not carry at least some adverse implications for Miss Lyons, so that if we had to decide the point, we would have not been persuaded that there was no element of detriment in it for her. But in any case, we think it is clear from the Tribunal's Extended Reasons, in particular what they expressly said in paragraph 12, that their conclusion was based not on the issue of detriment at all, but on the comparison which they made, for the purpose of establishing whether there was less favourable treatment. As we have already held, that was not consistent with the approach required in Novacold, so for that reason the Decision, in our judgment, was defective.
22. As the final paragraph of the Tribunal's Extended Reasons makes it explicit that the Tribunal had not proceeded to address questions of justification at all, and in that we think they erred since such questions need to be addressed, we have concluded that the only course for us, in view of the decision that we have reached on the issues argued before us, is to allow the appeal. Consequently, we remit the case to a differently constituted Tribunal for the questions of (1) whether the summoning of Miss Lyons to the meeting on 19 February 1999, and the discussion at that meeting in which she was required to explain her absence and, in particular, her having gone to a night club while still ill, did amount to less favourable treatment, for the purposes of section 5(1)(a) of the Disability Discrimination Act 1995; (2) whether there was justification under section 5(1)(b); and (3) any consequential issues under the Act, if discrimination is found to have been established to be reheard and redetermined.
23. Having considered the arguments put forward to us on this question; we are satisfied that the right course is to direct that the case should be reheard by a different Tribunal. However we have not been satisfied that there is really any substantial need to reopen issues of primary fact, and we have not been shown, in our view, any good ground for saying that the existing Tribunal's findings of primary fact in paragraphs 4 and 5 of their Extended Reasons are to be called in question for any reason. We are therefore satisfied that those primary findings should form the starting point for the new Tribunal's reconsideration of the legal issues in the case, and the fresh question of justification which was never considered by the previous Tribunal at all. In our judgment, the right course is to leave it as a matter for the new Employment Tribunal rehearing the case on those issues, to determine for itself whether there is any need for supplemental evidence before it determines the questions that we are remitting to it.
24. We have not been satisfied that it would be right for us to grant leave to appeal to the Court of Appeal against our judgment on the legal issues, so if the Respondents clients do want to pursue an appeal to the Court of Appeal they must renew their application there.