United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P B DEAN (of Counsel) Instructed by: Messrs Mills & Reeve Solicitors Midland House 132 Hagley Road Edgbaston Birmingham B16 8PE
For the Respondent	MISS J EADY (of Counsel) Instructed by: UNISON 1 Mabledon Place London WC1H 9AJ


 


THE HONOURABLE MR JUSTICE KEITH

1. The Applicant, Mrs Teresa Cambridge, was employed by the Respondent, the Mid Staffordshire General Hospitals NHS Trust ("the Trust"). She was dismissed from her employment on 3 July 2000. She presented an originating application to the Employment Tribunal claiming that her dismissal had been unfair, that she had been unlawfully discriminated against, contrary to the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995, and that she had been victimised because of her disability. An Employment Tribunal held at Birmingham found that she had been unfairly dismissed and that she had been unlawfully discriminated against on the grounds of her disability; but it rejected her claims that she had been unlawfully discriminated against on the ground of her sex or that she had been victimised because of her disability. The Trust now appeals against the finding that she had been unlawfully discriminated against on the ground of her disability. All references in this judgment to sections of an Act are to sections of the Disability Discrimination Act 1995.
2. The relevant facts which the Tribunal found were that Mrs Cambridge was employed by the Trust as the team leader for reception services in the Physiotherapy/Occupational Therapy Department of Staffordshire General Hospital. On 5 March 1999 Mrs Cambridge arrived for work to find a number of workmen wearing dust masks and demolishing a wall in the reception area where she worked. After a while, Mrs Cambridge noticed that the air had become extremely dusty and that her throat was dry. The work was stopped after a health and safety representative from Mrs Cambridge's union (UNISON) arrived. Over the weekend Mrs Cambridge's symptoms worsened and they continued to worsen over the next few weeks. She was certified as unfit for work from 16 March to 4 August. During that time she underwent a nasoendoscopy and she was diagnosed as suffering from a bowing of the vocal cords and tracheitis.
3. On 18 May and 24 June Mrs Cambridge had meetings with her then line manager who wanted to discuss the possibility of Mrs Cambridge returning to work to carry out light duties. Mrs Cambridge thought that she was not able to do that. There was a sense at these meetings of what the Tribunal described as mounting pressure on Mrs Cambridge to return to work, and there was talk of "options" for "redeployment" and "termination".
4. On 4 August Mrs Cambridge was certified as fit for up to two hours work a day for a period of two weeks. On her return to work on 9 August her new line manager, Mrs Catherine Simpson, gave Mrs Cambridge details of an action plan which she had devised to ease Mrs Cambridge gradually back to work. Although Mrs Cambridge worked to the action plan for the next few weeks, she was finding it difficult to use public transport or to avoid using her voice at work, and she found scents like perfume and air fresheners at work exacerbated her condition. These factors combined to cause her not inconsiderable stress.
5. Mrs Cambridge and Mrs Simpson met on 5 October to discuss the way forward. By then Mrs Simpson had been advised by Dr Smith, a specialist in occupational health, that Mrs Cambridge's symptoms would eventually resolve over the next four to six months, and that continued psychological counselling was likely to help. At that meeting Mrs Cambridge felt threatened. There was talk about her possible redeployment to a smaller department, though no specific post was mentioned. Mrs Cambridge was unwilling to go along with that suggestion because her counsellor had advised her that a change of post would be detrimental to her health.
6. At this meeting and others Mrs Simpson was being advised by Judith Gilbert, the Trust's Human Resources Manager. Mrs Gilbert had received very little training on disability issues and Mrs Simpson had received none. Although the Trust's guidance notes to managers on the handling of redeployment issues required managers to "consider making reasonable adjustments to working arrangements to enable employees with a health problem or disability to remain in/return to work", no thought was given to the practical implementation of that guidance. Neither Mrs Gilbert nor Mrs Simpson had given, so the Tribunal found, any thought to the possibility that Mrs Cambridge might be regarded as disabled or that the Trust might owe her legal duties if that was the case.
7. On 4 November Dr Smith advised that Mrs Cambridge should continue to work two hours a day. On 3 December he advised that that could be increased to three hours a day, but that Mrs Cambridge should revert to two hours a day if she had difficulty coping with more. By this time he had revised his estimate of the time needed for her full recovery to at least twelve months. As a result of that advice, Mrs Simpson decided that unless Mrs Cambridge could return to full-time working within a reasonable time she would recommend that Mrs Cambridge be dismissed. Mrs Gilbert agreed. The fact that Mrs Cambridge would remain entitled to full pay for another six weeks and would then be entitled to half-pay for another six months had, to use the words of the Tribunal, "passed them by." When they met Mrs Cambridge on 16 December they did not actually tell her what they had decided should happen. Mrs Simpson simply told Mrs Cambridge that she would be seeking advice from Dr Suarez – the Clinical Director of Clinical Support Services – who alone had the power to dismiss Mrs Cambridge. Mrs Simpson left it to Mrs Cambridge's union representative to explain to Mrs Cambridge that Mrs Simpson was going to recommend to Dr Suarez that Mrs Cambridge be dismissed. Mrs Cambridge was extremely distressed by this news, and she was certified unfit for work until 4 January as a consequence.
8. On 24 December (Christmas Eve) Mrs Cambridge was sent a substantial recorded delivery package. It contained a formal notice of a disciplinary interview with Dr Suarez on 7 January. It warned her that the outcome might be her dismissal, and it enclosed a copy of the management's case which ran to almost 90 pages and which Mrs Simpson intended to present to Dr Suarez with the support of Mrs Gilbert. Mrs Cambridge was required to submit a written response to that case by 4 January. Mrs Cambridge was devastated. In the event, the disciplinary interview did not go ahead, though the Trust had not considered whether it was or even might be appropriate for it to consider alternative solutions to disciplinary action to deal with Mrs Cambridge's incapacity. The disciplinary procedure was believed by the Trust to be the only means by which her incapacity could be addressed, and its invocation did not, in the view of the Trust, imply any misconduct on Mrs Cambridge's part.
9. Over the next few weeks meetings took place between Mrs Simpson and Mrs Cambridge's union representative to discuss the way forward. In particular, on 31 January a meeting took place between Keith Roberts (the Disability Employment Adviser) in which Mr Roberts put forward a number of possible initiatives including:

(i) Mrs Cambridge's referral to a consultant as to how her condition might be accommodated in her current post;

(ii) an ergonomic assessment of the workplace;

(iii) an independent occupational health assessment; and

(iv) a work preparation placement in alternative work.

The Tribunal said that Mrs Cambridge "felt unable to meet with Mr Roberts". We take it that the Tribunal was finding that Mrs Cambridge's condition was such that by then she was either physically or mentally unable to participate in a meaningful way in any of the initiatives which Mr Roberts had proposed.

10. Mrs Cambridge still continued to be certified unfit for work for long periods, and eventually the decision was made to reinstate disciplinary proceedings. On 12 May Dr Smith advised that Mrs Cambridge's condition had not improved, that it had deteriorated since she had heard of the reinstatement of the disciplinary proceedings, that she should not attend the disciplinary hearing, and that she was unlikely to recover sufficiently to return to her former job in the foreseeable future. Eventually, on 3 July, the reconvened disciplinary hearing took place. Mrs Cambridge was not fit enough to attend. Dr Suarez heard representations from Mrs Simpson and Mrs Cambridge's union representative, and concluded that Mrs Cambridge should be dismissed on grounds of incapacity due to ill health.
11. The Tribunal thought that the Trust had admitted that it had dismissed Mrs Cambridge for a reason relating to her disability, and that by dismissing her for that reason it had treated her less favourably than it would have treated others to whom that reason would not apply. The Trust had not admitted that, but the Tribunal would inevitably have come to that conclusion in the light of its findings of primary fact, in view of the construction of section 5(1)(a) by the Court of Appeal in Clark v TDG Ltd (trading as Novacold) [1999] IRLR 318. Accordingly, the Tribunal considered whether Mrs Cambridge had been subjected to any other detriment within the meaning of section 4(2)(d). It concluded that she had been subjected to a detriment when

(a) she had been told about her possible redeployment to a smaller department before "reasonable adjustments to [her current] working arrangements" had been considered;

(b) implicit and explicit threats of disciplinary action had been made to her at various meetings which preceded the package which she received on Christmas Eve; and

(c) the disciplinary procedure had been invoked against her by the formal notice which she had received on Christmas Eve.

12. Those findings are not challenged, and although the Tribunal did not expressly say so, the Tribunal must, we think, be taken to have found that the Trust had subjected Mrs Cambridge to those detriments for a reason relating to her disability, and that by subjecting her to those detriments for that reason, the Trust had treated her less favourably than it would have treated others to whom that reason would not apply. Thus, the Tribunal had to consider whether the Trust had shown that dismissing Mrs Cambridge and subjecting her to the detriments which they identified was justified. If the Trust could not show that, the Trust would have discriminated against her within the meaning of section 5(1), and section 4(2)(d) would have rendered that discrimination unlawful.
13. Before examining how the Tribunal addressed that issue, it should be recorded that the Tribunal also considered whether Mrs Cambridge had been discriminated against within the meaning of section 5(2). For that purpose, it had to decide (a) whether a "section 6 duty" had been imposed on the Trust in relation to Mrs Cambridge, (b) whether the Trust had failed to comply with that duty, and (c) whether the Trust had shown that its failure to comply with that duty was justified.
14. Section 6(1) provides:

"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."

The Tribunal held that the duties of Mrs Cambridge's post constituted "arrangements made by or on behalf of" the Trust, and that the place where Mrs Cambridge was expected to perform the duties of her post constituted both "arrangements made by or on behalf of" the Trust and a "physical feature" of the premises occupied by the Trust. The Tribunal found that Mrs Cambridge was unable to perform many of the duties of her post, and that two of the reasons why she was unable to perform many of those duties were because she was only able to work short hours and because the "physical feature of the specific place at which she was expected" to perform those duties caused her health to deteriorate. Although the Tribunal did not say so in terms, the Tribunal must have concluded that these factors placed Mrs Cambridge (to use the language of section 6(1)) "at a substantial disadvantage in comparison with persons who [were] not disabled". That finding is not challenged.

15. As a result of that finding, the duty of the Trust "to take such steps as it [was] reasonable, in all the circumstances of the case, for [it] to have to take in order to prevent [those factors] having [the] effect" of placing Mrs Cambridge at such a disadvantage was triggered. It is here that it is contended by Mr Paul Dean for the Trust that the Tribunal fell into error. The Tribunal, in effect, construed the words "to take such steps as…is reasonable…to prevent" Mrs Cambridge from being at such a disadvantage as including taking such steps as would enable the Trust to decide what steps would be reasonable to prevent her from being at such a disadvantage. Those steps included obtaining a proper assessment of

(a) Mrs Cambridge's condition and prognosis;

(b) the effect of her disability on her;

(c) the effect of her disability on her ability to perform the duties of her post;

(d) the effect of the physical features of her workplace on her and her ability to perform the duties of her post; and

(e) the steps which might be taken to reduce or remove the disadvantages to which she was subjected.

Only then would the Trust be able to come to an informed view about what steps it would be reasonable for the Trust to take to prevent Mrs Cambridge from being substantially disadvantaged. The Tribunal found that the Trust did not do that and the relevant finding of fact is in paragraph 38 of the Tribunal's extended reasons which read:

"[The Trust] failed to seek, obtain or act on a full and proper assessment of [Mrs Cambridge's] position at any relevant time. The only 'assessment' it sought was a prognosis from Dr Smith. Even he did not comply with the [Trust's] policies by seeking information from [Mrs Cambridge's] GP or Consultant at the relevant time. By the time it did seek to obtain appropriate reports, mid-way through the disciplinary process…the situation was effectively irretrievable: [Mrs Cambridge] was incapable of cooperating."

16. The principal criticism of the Tribunal at this stage of its reasoning is that the gloss which the Tribunal put on section 6(1) is unjustified. It is not warranted by the statutory language, and the effect of the gloss is to impose on the employer an antecedent duty which, once it has been performed, may establish that there are no steps which can reasonably be taken to ameliorate the disabled person's disadvantage. If the duty imposed by section 6(1) is to take such steps as are reasonable to ameliorate a disabled person's disadvantage, how can there be, so it is said, an antecedent duty which once carried out may show that no duty has in fact arisen because there are no steps which can reasonably be taken to ameliorate the disabled person's disadvantage? And if those antecedent enquiries reveal that there are no steps which can reasonably be taken to ameliorate the disabled person's disadvantage, all that the disabled person will have lost by the employer's breach of the antecedent duty (which the Tribunal identified) would be the prospect that those enquiries might have produced a different result. Although the Tribunal recognised that that was the logical consequence of its approach, the fact that the Tribunal concluded that Mrs Cambridge's loss had to be assessed by reference to the loss of that prospect, shows, so it is said, the flaw in its approach, because the law only recognises the assessment of loss by reference to the loss of a chance when liability has already been established.
17. We are not persuaded by this argument. If it were correct, it would deny section 6(1) practical application in very many cases. There must be many cases in which the disabled person has been placed at a substantial disadvantage in the workplace, but in which the employer does not know what it ought to do to ameliorate that disadvantage without making enquiries. To say that a failure to make those enquiries would not amount to a breach of the duty imposed on employers by section 6(1) would render section 6(1) practicably unworkable in many cases. We do not believe that that could have been Parliament's intention. The fact that the preliminary steps which the Tribunal had in mind are not referred to in section 6(3) is not decisive since the list of steps in section 6(3) is not exhaustive, and although section 6(4)(a) is, in terms of language, difficult to link in with preliminary steps of the kind which the Tribunal had in mind, section 6(4)(a) was only a consideration which the Tribunal had to have regard to, and it was not one which was to be treated as decisive. A proper assessment of what is required to eliminate the disabled person's disadvantage is therefore a necessary part of the duty imposed by section 6(1) since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. As the Tribunal said in paragraph 36 of its extended reasons:

"…in the absence of such an assessment it will often be impossible for an employer to know what adjustments might be reasonable, possible or effective."

The making of that assessment cannot, in our judgment, be separated from the duty imposed by section 6(1), because it is a necessary pre-condition to the fulfilment of that duty and therefore a part of it.

18. It follows that no doctrinal criticism can be made of the Tribunal's conclusion that Mrs Cambridge's loss should be assessed by reference to what the chances would be of establishing that steps could reasonably have been taken to ameliorate Mrs Cambridge's disadvantage to such an extent that she could have returned to her former post or been redeployed to an appropriate alternative post. It is true that the law only recognises the assessment of loss by reference to the loss of a chance when liability has been established, but that principle has not been infringed here.
19. Mr Dean complains that the Tribunal did not let the parties know that it was thinking of assessing Mrs Cambridge's loss by reference to the loss of a chance, and that it therefore failed to give the parties an opportunity to make submissions on the issue. We do not think that any injustice has occurred – certainly not to the Trust. As we have said, the Tribunal's approach to compensation is the logical consequence of its construction of section 6(1). Once its construction of section 6(1) has been shown not to be flawed, its approach to compensation could not have been flawed either. Since Mrs Cambridge was only denied those steps which an assessment might have established could reasonably have been taken to ameliorate her disadvantage, her compensation will have to be discounted to reflect the possibility that an assessment might have established that no steps could reasonably have been taken to ameliorate her disadvantage. If anyone could have complained, therefore, of not being given the opportunity to make submissions on the topic, it was Mrs Cambridge, because the Tribunal's approach to the measure of her loss potentially reduces her compensation rather than increases it.
20. Finally, on this part of the case, the Tribunal's finding in paragraph 38 is said to be perverse in the sense that it cannot stand with the Tribunal's findings about Mrs Cambridge's phased return to work in August 1999, the initiatives proposed by Mr Roberts at the meeting of 31 January 2000, and Mrs Cambridge's refusal to participate in any of those initiatives. However, we have already said that we have read the Tribunal as saying, in paragraph 11(nn) of its extended reasons, that Mrs Cambridge's unwillingness to participate in those initiatives was due to her condition, and that, as Mr Edwards pointed out in the course of the hearing, was borne out by the Tribunal's finding, in paragraph 32 of its reasons, to the effect that the receipt of the package on Christmas Eve had had a substantial adverse effect on the effect of her disability such that she was unable to cope with meetings and discussions. Her phased return to work in August 1999 did not mean that a proper assessment was not required of what needed to be done to see whether her working environment could be changed to accommodate her disability, or whether an alternative position was available which she could do despite her disability. In any event, the assessment could have been conducted without significant participation by her. Accordingly, we do not think that the finding which the Tribunal made in paragraph 38 of its extended reasons was one which it was not reasonably open to the Tribunal to make.
21. Having decided that the Trust was in breach of the duty imposed on it by section 6(1), the Tribunal had to decide whether the Trust had shown that its failure to comply with that duty was justified. The Tribunal concluded that the Trust had not satisfied it of that fact. There is no appeal from that finding. It follows, therefore, that the argument that the Tribunal erred in law in concluding that Mrs Cambridge had been discriminated against within the meaning of section 5(2) fails.
22. It is now necessary to return to the question whether the Trust had shown that dismissing Mrs Cambridge and subjecting her to the detriments which the Tribunal identified was justified for the purpose of determining whether she had been discriminated against within the meaning of section 5(1). In that context it is necessary to bear in mind sections 5(3) and 5(5). Section 5(3) provides:

"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(5) provides:

"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."

23. The Tribunal found that the Trust had not shown that dismissing Mrs Cambridge and subjecting her to the detriments which we have identified was justified. It reached that conclusion by two routes, either of which alone would have been sufficient. The first route was by relying on section 5(3). To the extent that the act of discrimination was Mrs Cambridge's dismissal, the Tribunal found that although her inability to perform the duties of her post and the cost of continuing to employ her constituted a reason for dismissing her which was material to the circumstances of her case, that reason was not substantial. The reason why that was not a substantial reason was because the Trust had failed to take such steps as were necessary to establish whether any steps could reasonably be taken to ameliorate Mrs Cambridge's disadvantage. This conclusion is challenged on the basis that it proceeds on an erroneous construction of section 6(1). Once that challenge fails, as it has done, this challenge must fail as well.
24. To the extent that the acts of discrimination were the acts by which Mrs Cambridge had been subjected to detriments, it is unclear whether the Tribunal found that budgetary considerations or Mrs Cambridge's inability to perform the duties of her post had been the reason why she had been subjected to the detriments. Whichever it was, though, the Tribunal must be taken to have found that it was not a substantial reason for subjecting her to the detriments. We do not think that that finding is open to challenge. No Tribunal could reasonably have concluded that the Trust could justify the detriments to which it subjected Mrs Cambridge on the ground of either budgetary considerations or her inability to perform the duties of her post. We can see why budgetary considerations might have inhibited the Trust from commissioning reports of the kind which Mr Roberts proposed at the meeting on 31 January, but the detriments to which Mrs Cambridge was subjected were the premature consideration of her redeployment, the threats of disciplinary action and the invocation of the disciplinary procedure. The Tribunal was entitled to find that no employer could reasonably have concluded that those acts could have been justified on the grounds of budgetary considerations or Mrs Cambridge's inability to perform the duties of her post.
25. The second route by which the Tribunal reached the conclusion that the Trust had not shown that dismissing Mrs Cambridge and subjecting her to the detriments was justified was by relying on section 5(5). We think that the only act of discrimination which the Tribunal was addressing in this context was Mrs Cambridge's dismissal, because the reason which the Tribunal gave for its conclusion did not relate to the other detriments which it had identified. The Tribunal found that Mrs Cambridge's dismissal would not have been justified even if the Trust had complied with its duty under section 6(1).
26. On the facts of this case, section 6(1) required the Trust to satisfy the Tribunal that the dismissal of Mrs Cambridge would have been justified if it had obtained an assessment on whether there were steps which could be taken to ameliorate Mrs Cambridge's disadvantage, and if that assessment established that there were no steps which could reasonably have been taken to ameliorate Mrs Cambridge's disadvantage. Because the Trust had not obtained such an assessment, it was unable to establish the latter. That is what we take to have been the Tribunal's process of reasoning from paragraph 34 of its extended reasons in which the Tribunal said:

"On the evidence we have heard the [Trust] has failed to satisfy us that it would have been justified in treating [Mrs Cambridge] as it did if it had complied with its duty to take steps to make reasonable adjustments under S.6. In the absence of a full and proper assessment by appropriate professionals it is effectively impossible to know what adjustments might have been appropriate and whether they might have enabled [Mrs Cambridge] to return to her post."

Again, this conclusion is challenged on the basis that it proceeds on the erroneous construction of section 6(1). Now that that challenge has failed, it follows that this challenge must as well.

27. There is one final matter. Section 53A deals with Codes of Practice issued by the Disability Rights Commission. Section 53A(8) provides:

"Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings, but any provision of a code which appears to a court or tribunal to be relevant to any question arising in any proceedings under Part II or Part III shall be taken into account in determining that question."

Paragraph 6.21 of the Code of Practice for the Elimination of Discrimination in the Field of Employment Against Disabled Persons of Persons who have had a Disability 1996 states:

"It would be justifiable to terminate the employment of an employee whose disability makes it impossible for him any longer to perform the main functions of his job, if an adjustment such as a move to a vacant post elsewhere in the business is not practicable or otherwise not reasonable for the employer to have to make."

The Tribunal did not refer to that passage in the Code of Practice in its reasons, but the fact that the Tribunal did not refer to it does not mean that it did not take it into account. In any event, even if the Tribunal did not take it into account, the Tribunal considered the very issue which this extract from the Code required it to consider by considering the issue which section 6(1) required it to consider.

28. For all these reasons, therefore, this appeal must be dismissed.