United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	CATRIN LEWIS Leeds Citizens Advice Bureau Westminster Buildings 31 New York Street Leeds LS2 7DT
For the Respondent	MS SUE ASHITIANY Solicitor Messrs Nabarro Nathanson Solicitors Lacon House Theobald's Road London WC1X 8RW


 


THE HONOURABLE MRS JUSTICE COX

1. This is an appeal from the Decision of an Employment Tribunal sitting at Leeds, promulgated on 17^th December 2002, dismissing the applicant's complaints of unlawful disability discrimination, unfair dismissal and unlawful deductions from wages. The appeal is in relation only to the findings on disability discrimination, no error of law being alleged in respect of the Tribunal's conclusions on the other claims.
2. The Tribunal found that the applicant, now the Appellant in this appeal, was a disabled person within the meaning of the Disability Discrimination Act 1995 (the Act) and, although the Respondents disputed this below, there is no cross-appeal on that issue. On the Appellant's complaints of discrimination under both section 5(2) and section 5(1) of the Act, the Tribunal held that the Respondents had not failed to comply with the section 6 duty to make reasonable adjustments and that they had not treated the Appellant less favourably than others for a reason which related to her disability. Alternatively, if they had treated her less favourably, their treatment of her was held to be justified in the circumstances.
3. In her grounds of appeal the Appellant contends that in so deciding, the Tribunal erred in law in a number of ways. The following issues therefore arise for determination in this appeal:

"1) Whether the Tribunal erred in their approach to the section 5(2) claim and reasonable adjustments by:

a) looking at the causes of the disability rather than its effects and misdirecting themselves as to the test to be applied under section 5(2);

b) failing to deal adequately with the evidence before it in concluding that there was no other adjustment the Respondents could make to ease the Appellant's position;

c) arriving at a perverse conclusion that the Appellants had sufficient medical information before them from the Respondents' doctor and that occupational health involvement was unnecessary.

2) Whether, in relation to the section 5(1) claim, the Tribunal erred in concluding that there was no less favourable treatment of the Appellant by reason of her disability in the Respondents' application of the "Bradford score" system to monitor the Appellant's sickness absences, which led ultimately to her dismissal.

3) Whether the Tribunal erred in concluding that, even if the Appellant had been treated less favourably, that treatment was justified, having regard to the Tribunal's failure to consider the Respondents' duty to make reasonable adjustments to the "Bradford" system before arriving at their conclusion on justification."

4. The Appellant was originally pursuing, as an additional ground of appeal, an allegation that the Tribunal failed "to allow the Appellant a fair hearing". Before us, however, Ms. Lewis, appearing for the Appellant, made clear that this ground was withdrawn and we shall not therefore refer to it again.
5. The Relevant Facts and the Tribunal's Conclusions

The Appellant commenced employment with the Respondents as a customer representative on 8^th May 2000, answering telephone calls at a call centre. Medical reports and other documentation before the Tribunal revealed that she had a number of different medical problems, including back pain (following an injury in her previous job), irritable bowel syndrome (IBS) and depression.

6. As a result of these problems the Appellant's sickness record was, as the Tribunal found, extremely poor and showed frequent absences. Between 8^th May 2000 and the date of her dismissal, on 17^th October 2001, there were 11 periods of absence, eight of which were for periods of five days or less and three of which were longer term absences. The Tribunal listed them all at paragraph 6(b) of their Reasons.
7. After hearing all the evidence concerning the Appellant's medical conditions, the Tribunal concluded that her back problem did not render her "disabled" for the purposes of the 1995 Act, holding at paragraph 2 that:

"Whilst it prevented her from lifting heavy weights, it did not interfere with her work with the Respondent because the Respondent had provided a special chair and foot-rest to ease that problem."

However, they held that the IBS and the depression were recognised illnesses controlled by medication, which substantially affected her ordinary daily activities and were of long standing; and that, by virtue of these medical conditions, she was a disabled person within the meaning of the Act.

8. They directed themselves correctly, as is common ground, as to the two claims pursued by the Appellant under the Act (section 5(2) and section 5(1)) and the statutory tests for determining whether there has been unlawful disability discrimination. They then proceeded to make findings of fact and arrive at their conclusions under the respective headings of "adjustments" (paragraphs 5(a) and (b)) and "less favourable treatment" (paragraphs 6(a) and (b)). We should add that, in paragraph 9, the Tribunal listed all the authorities to which they were referred by the parties. Both the Appellant and the Respondents were legally represented below (though Ms. Lewis was not then instructed) and both submitted detailed closing submissions in writing (now included in our bundles), addressing both fact and law and placing before the Tribunal the relevant legal principles, including references to the Code of Practice.
9. In relation to the section 5(2) claim and the question of reasonable adjustments, the Tribunal found as follows:

5(a) As to adjustments

The evidence heard by the Tribunal made it very clear that the Applicant's problems were in her private life rather than work. Her bad back was easily coped with by the provision of a special chair. The work that she was doing was something that she was capable of doing and the job, in itself, did not cause stress which would affect her depression and her IBS. The only problem at work was that during the Applicant's absences she would lose track of the changes in the marketplace and the financial services on offer and would have to read to catch up. The Respondent allowed the Applicant extra time off the telephone in order to catch up and arranged different working hours and shifts in order to assist the Applicant's return to work. The Applicant's stress, which caused her to be depressed and caused her IBS to flare up, was caused by domestic problems. She had experienced considerable difficulties in trying to move and the sale of her house had gone off on four occasions. The Tribunal did not delve more deeply into her private affairs but there was no doubt that when fit and well the Applicant could deal with her job with the Respondent competently and without worrying.

5(b) The Respondent kept in telephone touch with the Applicant when she was away ill and had the benefit of reports from her GP. At the end of November 2000 the Call Centre Manager, Wendy Duncan, accompanied by Debbie Grayson, the Applicant's Team Leader, visited the Applicant and her position was constantly monitored. It is claimed on the Applicant's behalf that no effort was made to redeploy her in another job which might be less stressful. It was clear that the two posts in which the Applicant was interested would be much more stressful and require more reading and training. In any case, the job itself was not beyond the Applicant but was well within her capability and the only difficulty was catching up after an absence. Being open to any suggestion sensibly varying the Applicant's hours of work, there was no other adjustment that the Respondent could make to ease the Applicant's position. There was no failure to make appropriate adjustments by the Respondent. There was an anxiety to help in any reasonable way. It was suggested that the Applicant should be seen by the Respondent's Occupational Health Department. This was not done because the Respondent had sufficient medical information from the Applicant's Doctor. She was offered a confidential advice service but refused. The complaint fails in this regard."

10. As to the section 5(1) claim and less favourable treatment, the Tribunal's conclusions were as follows:

"As to less favourable treatment

6(a) On behalf of the Applicant it is argued that the Respondent accorded the Applicant less favourable treatment by means of the home visit by Wendy Duncan and Debbie Grayson. No doubt because she was depressed, the Applicant took an antagonistic view to this visit feeling that it was an intrusion into her privacy. She took the same view about the telephone calls asking how she was during her absences. The Tribunal disagrees with her opinion. It was also argued that in using the "Bradford score" in managing sick absences, the Respondent discriminated against the Applicant. The Bradford system was the way in which the Respondent monitored all sick absences. The system did operate more severely against numerous short absences that longer absences. The absences of the Applicant were genuine. She was not a malingerer. It was argued that the way in which the Respondent dealt with the Applicant's sick absences, sick pay and the pro-rating of her holiday pay so that she was "in debt" as far as holiday was concerned was discrimination. It is argued that these were less favourable treatment of the Applicant as was the dismissal.

6(b) The Applicant's sickness record was extremely poor and showed frequent absences. She worked for the Respondent from 8 May 2000 and her sickness absences were as follows:-

26/05/00 1 day

21/07/00 1 day

29/09/00 1 day

02/11/00 18.5 days

01/02/01 2 days

28/02/01 2 days

27/03/01 5 days

12/04/01 3½ hours

16/05/01 9 days

20/07/01 17 days

03/10/01 3 days

Employment ended on 17 October 2001.

At a capability meeting held on 15 June 2001 the Applicant was in a position whereby she could be dismissed because of her absences following the Respondent's normal Bradford score system. At the capability meeting it was again clear that there was nothing in the Applicant's role at work that was causing her stress and the stress was caused by her domestic situation. It was decided that dismissal would not be looked at at the meeting. A new objective was set that the Applicant should not exceed 8.5% absence and that this would be reviewed on a monthly basis. She agreed she could comply with this requirement. Unfortunately the Applicant soon failed to meet the new attendance requirement. She was subsequently dismissed. The Applicant's Representative seems to argue that dismissal of a person who is disabled must always be wrong under the provisions of the Act. However, the Tribunal takes the view that the Respondent followed its normal policy with regard to dealing with absences. Short term absences do pile up the black marks faster than long absences. The Applicant put forward the example of another disabled person who was not dismissed because her absences were long term rather than short term. In the view of the Tribunal this shows that the Respondent was merely following its own procedure with an added sympathy because of the difficulties faced by the Applicant. The Tribunal was not convinced that the application of the Respondent's absence policy worked unfavourably towards disabled persons, who might have perfect attendance records depending perhaps on their disability. In the view of the Tribunal the sympathetic application of the Respondent's absence and sickness policy towards the Applicant was not less favourable treatment of her because of her disability.

However, in the alternative, on the basis that the Applicant suffered less favourable treatment because of her disability whether by the application of the Respondent's absence policy or by dismissal, the Tribunal finds that the treatment was justified and reasonable in the circumstances. The Applicant's sickness record in the short time of her employment was a serious matter. The application of the normal sickness absence procedure resulting in dismissal was therefore because of substantial and material reasons as required by Section 5(3) of the Act. At all times, the Respondent's actions were those of a reasonable employer. The claim of disability discrimination contrary to the Act therefore fails."

In relation to unfair dismissal the Tribunal concluded that the sickness absence procedure was reasonable, that the Appellant could have been dismissed at the capability meeting on 15^th June, but was given another chance and that she was subsequently fairly dismissed for capability. They held that "Dismissal was within the band of responses to be expected from a reasonable employer in the circumstances."

11. The Relevant Statutory Provisions

a. Sections 5 and 6 of the 1995 Act, so far as is relevant, provide as follows:

"5 Meaning of 'discrimination'

(1) For the purpose 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.

(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.

(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.

(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.

6 Duty of employer to made 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.

(2) Subsection (1)(a) applies only in relation to-

a) arrangements for determining to whom employment should be offered;

b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.

(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)-

a) making adjustments to premises;

b) allocating some of the disabled person's duties to another person;

c) transferring him to fill an existing vacancy;

d) altering his working hours;

e) assigning him to a different place of work;

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

g) giving him, or arranging for him to be given, training;

h) acquiring or modifying equipment;

i) modifying instructions or reference manuals;

j) modifying procedures for testing or assessment;

k) providing a reader or interpreter;

l) providing supervision.

(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to-

a) the extent to which taking the step would prevent the effect in question;

b) the extent to which it is practicable for the employer to take the step;

c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;

d) the extent of the employer's financial or other resources;

e) the availability to the employer of financial or other assistance with respect to taking the step.

…

(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."

12. The Issues in this Appeal

(1) Section 5(2) and reasonable adjustments

Ms. Lewis submits that it was an error of law to conclude that there was no other adjustment the Respondents could make to ease the Appellant's position. She submits, firstly, that the Tribunal erred in concentrating on the causes of the disability rather than its effects. They dwelt, incorrectly, on the fact that her medical conditions and difficulties in coping were exacerbated not by any difficulties in her job or place of work, but by personal and domestic problems, including a house move which proved very stressful. This, she submits, led them into error in their approach to reasonable adjustments and the correct test to be applied because they failed to concentrate on what steps the Respondents could reasonably have taken to enable the Appellant to do her work, given that she had a disability, to which issue the causes of her disability were irrelevant.

13. We do not accept this submission. Firstly, we do not consider that the Tribunal did attach undue weight to the causes of her disability. Their references to this matter in paragraphs 5(a) and 6(b) were made in the context of their findings of fact as to the nature and consequences of her various medical conditions. We do not agree with the suggestion that their reasoning shows that they failed properly to address the Respondents' duty to take reasonable steps because they considered that her problems were not workplace related and regarded that as determinative of the issue. They did, in our view, consider properly what reasonable steps the Respondent could have taken. In any event, we view the question whether the Appellant's problems were related to her work or to her place of work as being relevant to the question this Tribunal were addressing under section 6(1) of the Act, essentially the Respondents' duty to take reasonable steps to prevent working practices or the state of the workplace from placing the Appellant at a substantial disadvantage. As part of their duty under section 6(1) employers would need to know the extent to which, if at all, the employee's disability was being caused or, more probably, exacerbated by the way in which his/her job was structured or organised, or by any physical feature of the workplace, so that they could take appropriate steps to prevent that occurring and remove the disadvantage for that employee. We do not consider that this Tribunal erred in their approach to the section 6 duty as alleged and this first ground fails.
14. Secondly, it is submitted that the Tribunal failed to deal adequately with the evidence before it when considering reasonable adjustments and failed to deal specifically with the Appellant's submission that a reasonable adjustment would have been to allow her to work in an "off phones" position.
15. Our reading of the Tribunal's reasons, in particular at paragraph 5, is that they concluded on all the evidence, having regard to the statutory provisions to which they had just referred, that there was nothing in the arrangements made by or on behalf of the Respondents, which placed the Appellant at a substantial disadvantage in relation to the duties she was required to carry out, in comparison with persons who are not disabled. There was nothing which, in the Tribunal's view, prevented her from carrying out those duties or which made it more difficult for her to carry them out. Whilst we acknowledge that the Tribunal did not refer expressly to the statutory language in section 6(1) it is clearly implicit in their Reasons that this was their conclusion.
16. Furthermore, the Tribunal went on to find as a fact that, in any event, the Respondents made a number of appropriate adjustments in order to assist the Appellant and that there was therefore no failure to comply with any section 6 duty. Having found as a fact that the Appellant's disability was one which flared up on occasions as a result of domestic difficulties, necessitating sickness absences from work, they found that the only problem this caused her at work was the need to update herself upon her return on the various changes in the market and in the financial services available. They found as a fact that the Respondents made adjustments to her duties by allowing her "extra time off the telephone in order to catch up" on her return and by arranging "different working hours and shifts in order to assist [her] return to work". They also found that the Respondents monitored her situation appropriately, maintained constant contact with her and "had the benefit of reports from her GP". They expressly rejected the Appellant's contention that no effort had been made to redeploy her in another job which might be less stressful, finding as a fact that the two posts in which she was interested would be much more stressful and would require more reading and training. Further the Tribunal found that the Respondents were "open to any suggestion sensibly varying the Appellant's hours of work" and that she was "offered a confidential advice service but refused".
17. In paragraph 5(b) the Tribunal summarised their conclusions on the section 5(2) claim by finding that there was "no failure to make appropriate adjustments by the Respondents. There was an anxiety to help in any reasonable way". Absent an allegation of perversity, which is not made in relation to this ground of appeal, no criticism can be levelled at the Tribunal's findings of fact, which they were entitled to make on the evidence they heard. Nor do we find any error of law in their approach to the complaint of discrimination made under section 5(2). They found on the evidence that the Respondents were not under a section 6 duty in relation to this Appellant but that they had, in any event, made appropriate adjustments to assist her and to enable her to carry out her duties more easily and were therefore not in breach of any section 6 duty. This ground of appeal therefore fails.
18. Thirdly, Ms. Lewis submits that the finding in paragraph 5(b), that the Appellant was not seen by the Respondents' Occupational Health Department because they had sufficient medical information from her doctor, was perverse. It is alleged (see ground of appeal (c)) that the evidence at the hearing showed that "requests had been made by the Respondent to the Occupational Health Officer to see the Appellant, but no such action was taken despite the Appellant asking for such an appointment. The Respondent accordingly did not afford the [Appellant] the opportunity of taking up her problem of disability in the working environment with the professional person most likely to be able to assist her".
19. It seems to us, however, that this ground of appeal is misconceived. Firstly, it is clear from the documentation before the Tribunal dealing with this issue (now included in our bundles) that there had been Occupational Health (OH) involvement in relation to this Appellant and Ms. Lewis did not suggest otherwise. At page 56 of Bundle B there is an email dated 30/11/00 from the Call Centre Manager, Wendy Duncan, to the OH Manager, Mary McFadzean, amongst others, reporting on the Appellant's current sickness absence and asking her to organise an appointment with the Appellant as soon as possible. The reply at page 58 shows that Ms. McFadzean spoke to the Appellant about her illness and problems, indicated that she would arrange to see her again after her return to work and her receipt of further advice from medical specialists and offered advice to Wendy Duncan on reduced hours for her. Two months later on 01/02/01 Ms. McFadzean writes that "As Clare [the Appellant] seems to be coping ok at present it probably isn't worth me seeing her again at present unless there is an issue with her comfort at work or her absence" (Page 62). The Respondents wrote to the Appellant on 7^th June 2001 (page 67) telling her that, as she was aware, they had recent medical information from the OH Manager in her report and asking the Appellant to attend the capability meeting on 15^th June.
20. Thus, there was clearly OH involvement prior to the meeting of 17^th October 2001 when the decision to dismiss was made. At that meeting the minutes show (page 75) that the Customer Service Manger, Steve Smith (SS) said that:

"… he had discussed with Wendy Duncan what interaction there had been between Occupational Health, CJ's GP and her CCM and Team Leader. SS said he felt that there had been an immense amount. SS said that he'd had to consider whether a meeting with Occupational Health would have had an effect on the outcome, e.g. whether CJ's health would have improved. SS confirmed that the Occupational Health Manager had requested a second GP's report recently and had also spoken to CJ over the phone and SS therefore felt it was unlikely that an additional meeting with Occupational Health would have impacted on CJ's attendance level."

It is also clear from the documentation that, by the time the meeting of 17^th October was held, there was a great deal of medical information and advice about the Appellant before the Respondents, in particular reports from the Appellant's GP. All this documentation was before the Tribunal. The Tribunal's finding at paragraph 5(b) was, thus, one which in our view they were entitled to make on the totality of the evidence. There had clearly been consideration generally by the Respondents, including contact with the OH Manager and the Appellant herself, as to what the Appellant's medical difficulties were and how best they could be accommodated. In the circumstances we see no basis for challenging as perverse the Tribunal's conclusions in relation to OH involvement. The appeal in relation to the findings of the Tribunal on the section 5(2) claim therefore fails.

21. (2) Section 5(1) and Less Favourable Treatment

Ms. Lewis submits, firstly, that the Tribunal erred in concluding that there was no less favourable treatment of the Appellant for a reason which related to her disability. She contends that in paragraph 6 the Tribunal used a "sick but non-disabled person" comparator or a "differently disabled non-absent person" comparator to determine whether the Appellant was treated less favourably and that this approach was held to be wrong by the Court of Appeal in Clark v Novacold [1999] IRLR 318.

22. The Appellant's complaint as to less favourable treatment related not only to her dismissal but to her treatment pre-dismissal, principally the use by the Respondents of the "Bradford score" system, as adjusted, in monitoring and managing her sickness absences. The two were clearly linked since the Appellant was, ultimately, dismissed for failing to meet her agreed attendance objectives set in accordance with the adjusted score system used by the Respondents. Under the "Bradford" system employees' attendance is monitored by the use of an individual attendance calendar and attendance scores, used to monitor frequency, duration and any patterns of absence. The system is applied to all absences for all employees.
23. Ms. Lewis submits that the Tribunal should simply have asked themselves: "Were the Appellant's absences for a reason related to her disability" and therefore "was the Appellant dismissed for a reason related to her disability?" The answer to both those questions is "yes" and therefore the Tribunal should have held that there was less favourable treatment of the Appellant within the meaning of section 5(1). (It is common ground that, apart from the absences on 12/04/01 and 03/10/01 all the other absences were, in fact, as a result of her disability).
24. Ms. Ashtiany for the Respondents, submits that the Tribunal were entitled to find as they did. The management of sickness absence is not per se less favourable treatment. Given the Respondents' attempts to manage her absences, the capability meeting and her subsequent dismissal for her failure to meet agreed attendance objectives, the Tribunal were entitled to conclude that their treatment of the Appellant was not for a reason which related to her disability but, rather, was the result of their application of a general absence policy to ensure reasonable attendance levels by all staff. This absence policy did not disadvantage disabled persons disproportionately, as the Tribunal held, and further it had been applied to the Appellant sympathetically. Ms. Ashtiany relies on the case of London Clubs Management v Hood [2001] IRLR 719 in support of these submissions and submits that there is no error of law on the part of the Tribunal in arriving at their conclusion.
25. In London Clubs Management v Hood the facts were these:

"Mr. Hood worked as an inspector on the gaming floor of the Golden Nugget, a casino run by LCM. His contract of employment contained the following provision relating to sick pay:

' Payment for absence through illness will only be made at the discretion of the club director (or equivalent at head office). Where payment is made it will be subject to the limits set out in the following table.'

The maximum sick pay for an employee of Mr. Hood's length of service, 24 years, was 26 weeks' full pay in any year. In 1995 Mr. Hood began to develop headaches which interfered with his sleep and affected his ability to cope with his job on the following day. He was referred by his general practitioner to a consultant who diagnosed migrainous neuralgia, or 'cluster headaches'. The diagnosis was made before November 1997.

In 1998 Mr. Hood was paid sick pay for 39½ days of sickness absence. It was not suggested by LCM that Mr. Hood's absences were not genuinely due to his headaches. At paragraph 9 of the decision the employment tribunal held:

'It appears that there was a high level of sickness amongst all employees. However, the club management became concerned in 1999 because there was not only a high level of sickness absence but a budget deficit as well for the Golden Nugget Club. For that reason Ms. Roberti, the manager, decided not to exercise her discretion to pay sick pay generally, although she did do so in particular cases, for example for a person who was injured at work. So at the beginning of 1999 she stopped paying Mr. Hood sick pay when he was absent due to his cluster headaches. She also stopped paying in relation to absences of all other workers in similar situations. The Tribunal has examined the records and we see no discernible difference between the treatment of Mr. Hood and the treatment of others in the same grade. The company continued to pay full pay to persons in the management grades because it was obliged to do so under their contracts. The company also continued to pay full pay under the contracts of employment to those workers who were still at work.'

26. The Tribunal concluded that on these facts the reason for Mr. Hood's treatment related to his disability and that he had been less favourably treated, in that:

"…the company did not pay Mr. Hood when he was absent due to his disability and that in not paying Mr. Hood while he was off work due to cluster headaches the company acted for a reason which related to his disability and treated him less favourably than it treated someone "to whom that reason did not or would not apply".'

27. Allowing the Respondents' appeal the EAT held (at paragraphs 12-16 of their judgment):

12. In Clark v TDG Ltd v Novacold [1999] IRLR 318, considering a complaint of discrimination under the Disability Discrimination Act 1995, s.5(1) Mummery LJ said at p.323 paragraph 52:

'The two questions posed by the statutory provisions are:

(1) Was Mr. Clark dismissed for a reason which relates to his disability?

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

In Clark the 'treatment' for the purposes of s.5(1) was dismissal. Mummery LJ considered that the answer to question 1) was clear. The dismissal of Mr. Clark was for his absence, which was a reason related to his disability. The judgment in Clark focused on the correct approach to question 2).

13 In its approach to s.5(1), the employment tribunal considered why LCM did not pay Mr. Hood wages ordinarily due rather than why it did not pay Mr Hood sick pay. Its reasoning was based on the premise that the treatment of which complaint was made was the failure to pay ordinarily due wages (as contrasted with sick pay) to Mr Hood. On that basis it reasoned that Mr Hood was not paid wages because he was absent, he was absent for a reason related to his disability, therefore the treatment was for a reason related to his disability.

14 In our judgment this reasoning is based on the wrong premise. The 'treatment' in respect of which complaint is made in this case is the non-payment of sick pay. This was the treatment of which complaint was made in the originating application, identified by the chairman at the interlocutory hearing in issue (a) and the treatment agreed by both counsel before us to be material for the purposes of s.5(1). Applying question 1) posed by Mummery LJ in Clark at p.323 paragraph 52, the employment tribunal should have considered whether Mr Hood was refused sick pay for a reason which related to his disability, rather than whether he was not receiving pay ordinarily due for that reason.

15 The employment tribunal found as a fact in paragraph 9 of its decision that in 1999 the manager decided not to exercise her discretion to pay sick pay generally and that it was for this reason that she stopped paying Mr Hood sick pay. It is to be noted that in contrast to its approach to the identification of the treatment complained of for the purpose of s.5(1)(a), the employment tribunal considered in paragraph 16 of its decision whether the failure to pay sick pay rather than the failure to pay wages ordinarily due was justified within the meaning of s.5(1)(b). It held:

'It is clear, applying Clark v Novacold, that the comparison must be with someone who was not absent and who was therefore receiving full pay. We are not satisfied that the treatment was justified. The burden of proof is on the company and, although there was some evidence that the budget of the Golden Nugget was overspent, no real attempt was made to show that failure to pay sick pay was justified by the financial situation of the company at large.'

There was thus a lack of correspondence between the treatment upon which the tribunal based its reasoning for the purpose of considering s.5(1)(a) and the treatment in respect of which it considered the issue of justification in s.5(1)(b). The conclusion reached by the tribunal on s.5(1) was also expressed in terms of failing to pay sick pay.

16 If the tribunal had asked the correct question, was Mr Hood refused sick pay for a reason related to his disability, on the facts found by it in paragraph 9 of its decision the only conclusion open to it would have been that the reason for the treatment was the application of the policy on sick pay. The reason does not relate to Mr Hood's disability. Accordingly, the finding that LCM unlawfully discriminated against Mr Hood under s.5(1) of the Disability Discrimination Act 1995 cannot stand. Because of the view that we take of the outcome of applying the correct question to the facts as found by the tribunal, a finding of discrimination under s.5(1) would be perverse.

28. The crucial paragraph upon which Ms. Ashtiany relies in the present appeal is paragraph 16. She submits that on the facts found by this Tribunal they were entitled to conclude that the reason for the Respondents' treatment of the Appellant (namely the application of the Bradford score system, as adjusted, to monitor and manage her absences and her subsequent dismissal for her failure to achieve agreed attendance targets) was the application of their "normal policy with regard to dealing with absences" and did not constitute "less favourable treatment of her because of her disability."
29. We agree that, on the specific findings of fact by this Tribunal, they were entitled so to conclude. We do not consider that the Tribunal failed to apply the principles established in Clark v Novacold as to less favourable treatment or mis-identified the comparator, as Ms. Lewis suggests, because they clearly conclude in the penultimate paragraph of paragraph 6(b), that the treatment she received was not for a reason relating to her disability. The first of the two questions posed in Clark was therefore determined against this Appellant in relation to the treatment she received and no issue arose on the second issue as to whether that treatment was less favourable.
30. The Tribunal's reference to the scoring system having the effect that "short-term absences pile up the black marks faster than long absences" must be read and understood in the context of the Tribunal's findings as to the sympathetic application of the normal scoring system to this particular Appellant. They found that her sickness record was extremely poor, showed frequent absences and that she could have been dismissed because of her absences, applying the normal Bradford score system, at the capability meeting held on 15^th June 2001. It is in fact common ground between the parties that, in February 2001, the Respondents had already re-based the Appellant's poor scores under its Bradford scoring system in order to allow her a further opportunity to improve her attendance. At the meeting of 15^th June, as the Tribunal found, an entirely new objective was set, away from the Bradford score system altogether (which is not in dispute), that the Appellant should not exceed 8.5% absence and that this would be reviewed on a monthly basis. Further the Appellant agreed that she could comply with this requirement. Unfortunately, she was unable to and she was subsequently dismissed. The Tribunal found that this amounted to a "sympathetic application" of the Respondents' normal absence and sickness policy and could not in any event be said to constitute less favourable treatment of her by reason of her disability. In our view they were entitled so to conclude on these facts and this ground of appeal therefore fails.
31. We wish to add this general observation. The experienced lay members of this Appeal Tribunal expressed some concern, during argument, about the possible effects of a strict application of the "Bradford Score" system to employees who are disabled within the meaning of the 1995 Act and about the risks of such application being considered to amount to discriminatory treatment in some circumstances. These concerns, we agreed, did not arise on the particular facts of this case, where the Tribunal found sympathetic adjustments to have been made and new absence targets set, outside the Bradford system, and with which the Appellant agreed she could comply. However, the strict application of such a scoring system might well require review in some cases involving sickness absences of employees who are "disabled persons" within the Act and whose absences arise as a result of their particular disability.
32. Ms. Lewis submits, finally, that the Tribunal erred in concluding in the alternative that, even if the Appellant had been treated less favourably for a reason related to her disability, that treatment was justified. The Tribunal's finding on justification is set out in the final paragraph of paragraph 6(b). They concluded, having regard to their earlier findings, that the Respondents' application of their normal sickness absence procedure resulting in dismissal was because of "substantial and material reasons as required by section 5(3) of the Act" and that "at all times the Respondents' actions were those of a reasonable employer."
33. Ms. Lewis submits that the Tribunal erred in failing to consider the section 6 duty in relation to reasonable adjustments to the sickness absence policy and further failed to consider whether the Respondents could have made such adjustments, in order to prevent the Appellant being disadvantaged by it. This should have been done before considering the question of justification of the less favourable treatment, in accordance with sections 5(2) and (5). She also submits that by referring to "a reasonable employer" the Tribunal confused and improperly ran together the tests for justification under the Act and for the fairness of a dismissal under the employment protection legislation.
34. In our judgment this ground of appeal must also fail, for the following reasons. Firstly, it is clear that the Tribunal found that the Respondents did make reasonable adjustments to the "Bradford score" sickness absence policy in the Appellant's case, which we have referred to above and which they would have had in mind when considering justification. It was these adjustments which led to the Tribunal's finding as to the "sympathetic application" of the policy to the Appellant. Secondly, it is clear that, in deciding whether less favourable treatment of a disabled employee was justified within the meaning of section 5(3), a Tribunal should consider whether the employer's decision was irrational or beyond the range of responses open to a reasonable decision maker, Jones v Post Office [2001] IRLR 384 CA. This Tribunal considered that the Respondents' decision satisfied this test for the reasons clearly set out in the earlier paragraphs of their decision.
35. For these reasons we therefore dismiss this appeal.