United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BARNETT (of Counsel) Instructed By: K.E. Davies & Sons Warley Chambers Warley Road Hayes Middlesex UB4 0PU
For the Respondent	MR M BARKLEM (of Counsel) Instructed By: Clarks Great Western House Station Road Reading RG1 1SX


 


JUDGE J BURKE QC:

1. This is an appeal by Mrs Jangra against the decision of the Employment Tribunal, sitting at London South and sent to the parties with extended reasons on 15 March 2001.

The History

2. There is a lengthy but relevant history to this appeal. Mrs Jangra was employed by the employers from 1988 at their premises near Heathrow Airport where they prepare airline meals. She worked in the tray set department, placing items onto aircraft meal trays. In May 1996 she sustained a small cut to the middle finger of her right hand. Symptoms appeared and got worse in her right arm and neck to such an extent that, shortly after this seemingly minor incident, she went off work and was away until November 1996. She returned to work but was away again from 24 February 1997 and never returned. She was dismissed on grounds of incapability on 18 September 1997.
3. As long ago as 4 December 1997 Mrs Jangra presented to the Employment Tribunal an Originating Application claiming that she had been unfairly dismissed and discriminated against by reason of her disability. Her claims were heard in February 1999 by the Employment Tribunal, chaired by Mr Lamb ("the Lamb Tribunal"); she succeeded. In relation to the unfair dismissal claim, the Lamb Tribunal concluded that the employers had acted far too hastily in dismissing Mrs Jangra and that the appeal procedure which had been followed did not cure the procedural defects in the decision to dismiss. In relation to the disability discrimination claim, the Lamb Tribunal found that Mrs Jangra was a disabled person at the material time, that in dismissing her the employers had treated her less favourably than they would have treated others to whom the reasons for dismissal did not apply or would not have applied and that the employers had not established justification.
4. The employers appealed against the decision of the Lamb Tribunal to the Employment Appeal Tribunal. On 12 December 2000 the Employment Appeal Tribunal, chaired by His Honour Judge Peter Clark (EAT/547/99), allowed that appeal in part and remitted the case to a fresh Employment Tribunal for re-hearing of two questions:-

"(i) Given that the Respondent had shown a potentially fair reason for dismissal, capability, but the dismissal was procedurally unfair in the manner found by the Employment Tribunal at paragraph 35 of the reasons, did the internal appeal cure those defects so as to render the dismissal fair overall?

(ii) Given that the Respondent discriminated against the Applicant by reason of her disability by dismissing her, contrary to section 5(1)(a) of the Disability Discrimination Act 1995, has the Respondent shown that their treatment of her, the dismissal, was justified under section 5(1)(b), bearing in mind the matters to which the Employment Appeal Tribunal have earlier referred?".

5. Mrs Jangra asked the Court of Appeal for permission to appeal against the Employment Appeal Tribunal's decision; permission was refused on 15 February 2001 (2001 EWCA Civ 256).
6. The remitted hearing took place on 7 and 8 March 2001 before a differently constituted Tribunal at London South, chaired on this occasion by Mr Peters ("the Peters Tribunal"); their decision was sent to the parties on 15 March 2001; and it is from that decision that the present appeal is brought. The Peters Tribunal based themselves on the findings of primary fact made by the Lamb Tribunal, against which there has been no appeal, and on further findings ascertained from further evidence given to them. They concluded, in answer to the first remitted question, that the internal appeal procedure cured the defects in the original dismissal procedure so as to render the dismissal fair overall; and, in answer to the second question, they decided that the employers had discharged the burden of showing that the discriminatory treatment was justified.
7. Mrs Jangra appealed against both limbs of the decision of the Peters Tribunal. At a preliminary hearing on 8 October 2001 the Employment Appeal Tribunal permitted her appeal to proceed to a full hearing on the issue of justification of the discriminatory treatment alone. As a result the unfair dismissal claim was finally resolved in favour of the employers; whether the disability discrimination was justified has remained an outstanding issue which we have to resolve.
8. We should add that an earlier full hearing of this appeal was fixed; but it was adjourned for reasons of which we are unaware. Because of the age of this case we have endeavoured to produce this judgment with all possible speed.

The Facts

9. For the purposes of this appeal the essential facts, as found by the Peters Tribunal or by the Lamb Tribunal and adopted by the Peters Tribunal, can be briefly summarised. After Mrs Jangra had gone off work again in February 1997 and had been off work for a further three months the employers obtained a report from her general practitioner which stated that Mrs Jangra had significant pain in the whole of her right arm and significant swelling and pain of her right little finger. The general practitioner did not then anticipate that Mrs Jangra would be able to return to work in the near future (Peters, paragraph 9(v)).
10. On 31 July 1997 Mrs Jangra, with her Union representative, attended a meeting with Mr Edwards of the employers. Consideration had been given by the employers to finding alternative jobs for Mrs Jangra. Mr Edwards had looked in a number of areas to see if there was work that she could do but had not been successful. Mrs Jangra was unable to say when she might be able to manage any return to work; Mr Edwards decided that he needed further medical evidence and to involve more senior management (Peters, paragraph 5(vi)).
11. At a further meeting on 9 September 1997 with a more senior manager Mrs Jangra felt that she might be able to manage a return to light duties on a part-time basis. The employers agreed to make suitable arrangements. Mrs Jangra was seen by the employer's Occupational Health Adviser on 15 September 1997; he noted that she considered herself fit for limited duties only. It seems that, thus, the way was cleared for her to return to work to such duties on a part-time basis; but on 16 September Mrs Jangra informed the employers that she was in pain and could not and would not be able to return to work at all. She was asked to attend a meeting on 18 September 1997 (Peters, paragraph 9(vi) to (ix)).
12. On 18 September 1997 Mrs Jangra and her Union representative attended a lengthy meeting with Mr Leslie, the Deputy Unit Manager. There was discussion about her health and some outstanding tests. Mr Leslie said that there was a problem which Mrs Jangra had had to endure for 16 months and that it was obvious that she was in pain. He concluded that, because of her symptoms, she was clearly not able to perform her duties. She could not lift or carry anything of even small weight and could not even shake his hand because of the pain. He had to make a decision as to her capability to perform the function of her job or any other job. She had been unable to return to work on a light duties programme. Therefore he decided that the proper decision was to terminate her contract of employment, based on her incapability (Peters, paragraph 9(x), Lamb, paragraph 14).
13. At the date of dismissal Mrs Jangra was affected in her daily life to a very substantial extent by her condition. She could not use her right hand for cooking, shopping, washing, housework or in the toilet (Lamb, paragraph 28).
14. Mrs Jangra's internal appeal was postponed, for reasons which do not give rise to any criticism of her or the employers, until 28 April 1998. When it started, Mr Humphreys, one of two Union representatives present on Mrs Jangra's behalf, made the point that the employers had failed to look at alternative posts across the Company. Mr Tombs, the Technical Director of the employers who was at that time conducting the appeal, appeared to accept the point; and the hearing was adjourned to look at the range of possible job opportunities. Thereafter further medical evidence showed that Mrs Jangra could not use her right arm for any activity whatsoever and was fit only for a sedentary job which involved use of her left arm. The medical evidence was that the best that could be hoped for was that she would be able to return to work in three to six months but it was likely to take considerably longer (Peters, paragraph 9(xiii) to (xvi)).
15. Eventually, having regard to the severe restrictions on Mrs Jangra's working ability and having considered alternative employment, the employers decided to confirm her dismissal and so notified her by letter (Peters, paragraph 9(xxi) and (xxii)).

The Law

16. Section 5(1) of the Disability Discrimination Act 1995 provides as follows:-

"5(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."

By section 5(2) it is provided that:-

"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."

Section 5(3) provides:-

"(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."

Section 5(4) provides:-

"(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."

Section 5(5) provides:-

"(5) If, in a case falling within subsection (1), the employer is under a section 6 duty 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."

17. Section 6(1) of the Act provides:-

"(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."

18. When this unfortunately long-drawn-out case was first before the Employment Appeal Tribunal, Counsel were asked to present arguments as to the time at which justification must be judged, Counsel for the employers submitted that the Tribunal could take into account what had happened between the dismissal and the final disposal of the appeal. Counsel for Mrs Jangra submitted that justification must be judged at the date of the discriminatory act. The Employment Appeal Tribunal indicated, in paragraph 47 of the judgment, that the latter submission was correct. The point was not necessary for the decision made on that appeal; but the Employment Appeal Tribunal, presciently, wished no doubt to provide some guidance to the Tribunal which had to grapple with the remitted hearing. There is nothing to show that the indication given by the Employment Appeal Tribunal was directed towards section 5(5) specifically; the indication is in general terms.
19. Section 5(5) of the 1995 Act may be thought, at first blush, and was agreed before us not to be easy to understand or apply. In our judgment its application can be divided into three stages which we set out below:-

(i) Firstly section 5(5) requires a Tribunal, where the employers seek to justify under section 5(3) discrimination established within section 5(1), to decide whether the employer is under a section 6 duty i.e. a duty, pursuant to section 6(1) of the Act, in relation to the disabled person to take such steps as are reasonable in all the circumstances of the case for them to have to take in order to prevent the arrangements made by or on behalf of the employer or any physical feature of the premises occupied by the employer from placing the disabled person at a substantial advantage.

(ii) If the employers are under such a duty, the Tribunal next has to decide whether the employers have failed, without justification, to comply with that duty. Such justification falls to be considered under the terms of section 5(4).

(iii) If the employers have so failed, then the treatment of that person which is discriminatory under section 5(1) of the Act cannot be justified under section 5(3) unless it would have been justified even if the employers had complied with the section 6 duty.

20. It is clear that the third stage of the three-stage exercise which section 5(5) may require does not arise unless and until the Tribunal finds against the employers at the first and second stages of that exercise. If it does arise, it necessarily involves the asking by the Tribunal of a hypothetical question, namely would the discriminatory treatment have been justified had the employers complied with the section 6 duty in a factual situation in which the employers have been found not to have so complied.

The Decision of the Peters Tribunal

21. The Peters Tribunal, having directed themselves as to the above statutory provisions and to the need to consider the relevant Code of Practice, set out their decision on justification at paragraphs 24 to 28 of their extended reasons. It is necessary to set out the relevant part of those paragraphs in this decision, as follows:

"24 The Tribunal first considered section 5(5) of the 1995 Act. If that subsection is not satisfied there can be no question of justification under section 5(1)(b). The Tribunal is satisfied the Respondent was under a section 6 duty and the Tribunal considered to what extent the Respondent had complied with that duty.

(i) The Tribunal noted that at the meeting on 31 July 1997 Mr Edwards stated that he had already looked at alternative employment within the organisation prior to that meeting.

(ii) The Tribunal also noted that at the meeting on 9 September 1997 a rehabilitation programme for the Applicant was discussed which would involve adjustment to her duties and to her hours of work so as to rehabilitate her back into her normal duties on a phased basis.

25 Accordingly it does appear to the Tribunal that the Respondent had taken steps to ensure compliance with the section 6 duty in order to rehabilitate the Applicant back into work.

26 However the Tribunal noted that on 28 April 1998 Mr Tombs appears to have admitted that no consideration was given to other vacancies. The evidence before us was that the only real possibility for the Applicant was that the option put to the Applicant on 9 September 1997. Accordingly insofar as there was a failure to carry out a section 6 duty the Tribunal is satisfied that even if, as at the 18 September 1997, the further steps taken following 28 April had been taken the outcome would have been the same and therefore section 5(5) of the 1995 Act would not prevent the Respondent being able to justify the dismissal of the Applicant.

27 The Tribunal then turned to section 5(3) of the 1995 Act and paragraph 4.6 of the Code of Practice. The Tribunal is satisfied that the Respondent had established that the Applicant could not do her job and that there were no other jobs which were suitable for her. We are satisfied that the reason for dismissal was both material to the circumstances of the case and substantial. …

28 Accordingly the Tribunal finds that the Respondent has discharged the burden to show that the treatment of the Applicant, namely her dismissal, was justified."

The Submissions

22. In summary, Mr Barnett's submissions, on behalf of Mrs Jangra, which he limited to the grounds of appeal set out in paragraphs 6.2.1 and 6.2.4 of the Notice of Appeal, were:-

(1) The Peters Tribunal found that the employers were under a duty to Mrs Jangra under section 6(1) of the 1995 Act to make reasonable adjustments and that by failing to consider sufficiently whether she could be redeployed into a different position the employers had failed to comply with that duty.

(2) Thus the third stage of the section 5(5) exercise as we have described it above became critical.

(3) But in deciding that the discrimination was justified, the Tribunal failed properly to apply section 5(5). The basis of the Tribunal's decision was, as set out in paragraph 26 of the extended reasons, that even if further steps to look for alternative employment within the employer's organisation had been taken, as they should have been, at the time of dismissal the outcome would have been the same; but this approach was in error for two reasons, namely

(a) Because either by reason of the views expressed by the Employment Appeal Tribunal in the first appeal which created an issue estoppel as between the parties (albeit those views were obiter dicta) or on the proper construction of the Act the Tribunal was bound to consider the question of justification at the date of the dismissal and not to take into account anything which happened thereafter, analogously to the well known approach to unfair dismissal as set out in Devis v Atkins [1977] AC 931 (Notice of Appeal, paragraph 6.2.1).

(b) Because the Tribunal did not consider whether the employer's failure to make reasonable adjustments was justified; a finding that further steps would not have made a difference went to causation but did not establish justification. (Notice of Appeal paragraph 6.2.4).

23. Mr Barklem's submissions on behalf of the employers were, in summary:-

(1) The Tribunal did not make a finding that the employers were in breach of their duty to Mrs Jangra under section 6(1) of the 1995 Act; on the contrary in paragraph 25 they expressly found that there was no such breach.

(2) In paragraph 26 of the extended reasons the Tribunal was considering, as an alternative to their primary conclusion, whether, if there had been such a breach, the breach and the discrimination would have been justified – in other words they were, as an alternative basis for their decision but unnecessarily carrying out the third stage of what we have described as the section 5(5) exercise.

(3) In any event, in carrying out the third stage of the section 5(5) exercise, the Tribunal was entitled to consider cogent evidence as to the extent to which taking a particular step by way of adjustment would or would not have made a difference, including events subsequent to the act of discrimination complained of, if such evidence assisted the Tribunal to resolve the hypothetical question posed by section 5(5).

(4) The concept of issue estoppel did not apply to a determination of a point of law, as opposed to a determination of a factual issue; still less did it apply to a statement by the Employment Appeal Tribunal of its views on a point of law which did not fall for decision in the appeal before it.

24. In response to Mr Barklem's submission that, on a proper reading of the Tribunal's decision the Tribunal should be taken to have found that there was no unjustified breach of the section 6 duty, Mr Barnett submitted that the Tribunal necessarily had to proceed to the third stage of the section 5(5) exercise unless they found that the employers had concluded that Mrs Jangra was unable to perform any job which might be available within the employer's organisation. He fairly accepted that, if there was such a finding, then his argument as to the erroneous approach of the Tribunal to the third stage of the section 5(5) exercise would be, to use his expression, "bypassed". More precisely the third stage of the section 5(5) exercise would not, on such a finding, have arisen. It was, as we have set out above, Mr Barklem's submission that the Tribunal had found that there was no breach of the employer's section 6 duty i.e. Mrs Jangra was unfit for any job and there was nothing more that they could reasonably be expected to do.

Conclusions

25. In our judgment it is necessary to read paragraphs 24 to 28 of the extended reasons as a whole and together with the relevant findings of primary fact which we have summarised above. In paragraph 24 of the extended reasons, the Tribunal, having determined that the employers were under a section 6 duty, expressly turned to consider whether the employers had complied with it. They recited that Mr Edwards, prior to the dismissal had said that he looked for alternative employment (there was no suggestion that he had not done what he said he had done) and that the employers had discussed a rehabilitation programme with Mrs Jangra to seek to get her back to work on a phased basis. It is plain from the findings of fact of the Lamb Tribunal, which it must be remembered were adopted by the Peters Tribunal, that these attempts had been made but had failed. The Lamb Tribunal expressly found, at paragraph 14 of their extended reasons, that by 18 September Mrs Jangra was so disabled that she could not carry anything of even small weight and could not even shake Mr Leslie's hand. The Peters Tribunal found, at paragraph 9(ix), that after arrangements had been made for a phased return to light work Mrs Jangra had telephoned to say that she was in pain and would not be able to return to work. As a result Mr Leslie had to make a decision as to her capability to perform the function of her job or any other job. The Peters Tribunal made a very clear finding in paragraph 27 of the extended reasons that Mrs Jangra could not do her job and that there were no other jobs which were suitable for her. It was in this situation that Mr Leslie decided to terminate her employment on grounds of incapability.
26. Taking all these primary findings together from the two decisions, as we must, we have reached the clear conclusion that the Tribunal did indeed find that, as at September 1997, Mrs Jangra was unable to perform any job which the employers could have found and that Mr Leslie so concluded when he decided to dismiss. No other interpretation of the Tribunal's decision is sensibly open. Mr Leslie, on 18 September, had before him an employee who could not even shake his hand because of pain. It would be inconsistent with reality to conclude that Mr Leslie did not decide that Mrs Jangra was incapable of her own or any other job or that she was not incapable of her own or any other job.
27. Once the Tribunal's findings of fact are understood, as we have described them and as, in our judgment, they must properly be understood, it is not difficult to see what the Tribunal was deciding in paragraphs 25 to 27 of their extended reasons. While paragraph 25 might have been more unambiguously expressed, we firmly conclude that these paragraphs were intended to convey a secondary finding, in the light of the primary findings of fact to which we have referred, that the employers by taking the steps set out had complied with their section 6 duty. We regard that interpretation, in the light of the findings of primary fact, as clearly preferable to the alternative proposed by Mr Barnett, namely that the Tribunal were intending to convey the opposite i.e. that the employee had taken some but inadequate steps to comply with that duty.
28. In paragraph 26, introduced by the word "However" the Tribunal were in our judgment considering the position on the alternative hypothesis, contrary to their finding in paragraph 25, that there had been a failure to comply with the section 6 duty. That is in our judgment why they say:

"Accordingly insofar as there was a failure to carry out a section 6 duty …"

And

"Section 5(5) of the 1995 Act would "[our emphasis]" not prevent the Respondent being able to justify the dismissal of the Applicant."

The language is consistent with and indicative of the Tribunal's considering a hypothesis in contrast to their principal conclusion in paragraph 25. Having thus disposed of section 5(5), the Tribunal was then correct, in paragraph 27, to return to section 5(3) and to make a finding as to justification for the discrimination without any further reference to section 6 or section 5(5), as they proceeded to do. That conclusion is not the subject of any criticism, independent of the criticisms of their approach to section 5(5), on behalf of Mr Jangra in this appeal.

29. For these reasons Mr Barnett's attack on the Tribunal's approach to section 5(5) must fail at the first hurdle; the findings of the Tribunal were such that the third stage of the section 5(5) exercise which was the focus of Mr Barnett's attack did not arise.
30. In the circumstances we do not regard it as necessary or sensible to deal any further in this judgment with the issues as to whether, in considering the third stage of the section 5(5) exercise, a Tribunal is entitled to consider evidence as to events occurring after the date of the discrimination or the issue, which appears to us to be potentially controversial, as to the effect between the parties of paragraph 47 of the first Employment Appeal Tribunal judgment.
31. Accordingly the appeal is dismissed.