United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS CATRIN LEWIS (of Counsel) Instructed By: Disability Rights Commission 2nd Floor Arndale House The Arndale House
For the Respondents	MS NAOMI ELLENBOGEN (of Counsel) Instructed By: Messrs Jacksons Solicitors Innovation House Yarm Road Stockton-on-Teess TS18 3TN


 


HIS HONOUR JUDGE J BURKE QC:

The Facts and Issues

1. This is an appeal by Mrs Susan Mallon against the decision of the Employment Tribunal sitting at Thornaby on Tees, chaired by Mr Garnon and sent to the parties with extended reasons on 2 July 2002. By that decision the Tribunal dismissed Mrs Mallon's claim against the Respondents, part of Corus UK Ltd (which used to be the British Steel Corporation), that the Respondents had been guilty of disability discrimination in their treatment of her.
2. Mrs Mallon is an experienced and qualified registered nurse with specialist qualifications in occupational health. She worked for ICI as an occupational health nurse for 21 years before being made redundant in December 2000. In 1993 she developed a mature onset diabetes which, until 1998, was controlled by oral medication; but in 1998 she had to turn to controlling her diabetes by self-injection of insulin. She became classified as an insulin controlled diabetic. However she had, to the date of the Tribunal hearing, always been aware when her blood sugar was falling out of the acceptable range; and she always used to carry with her lucozade tablets, milk and bananas so as quickly to boost her blood sugar level if necessary. The need to do so arose on two occasions while she was working with ICI as a lone worker after she became an insulin controlled diabetic.
3. After being made redundant by ICI and a short spell working for a National Health Service Trust under a temporary contract, Mrs Mallon applied for the post of occupational health nurse at the Respondents' Teesside site. The Tribunal found that the Iron and Steel Works at which the job which she sought was to be performed was a very hazardous workplace. Workers had to work in close proximity to heat sources; there was work done indoors and out of doors, at ground level and on high platforms; no doubt there was a large variety of workplaces over the eight to ten square miles of the site.
4. In each shift at the Teesside site there were three employees in the Respondents' Occupational Health Function. One was the senior nurse or shift nursing officer who was in charge of the shift and worked at Lackenby Medical Centre which was the base of the Occupational Health Service for the site and was where the records and more sophisticated equipment were kept. The third member of the team was a medical room attendant who was not a qualified nurse and who was also based at Lackenby. He or she would drive an ambulance as required which was kept at Lackenby. The second member of the team of three was the shift nurse; it was the job of the shift nurse for which Mrs Mallon applied. The Tribunal found that the shift nurse was based on her own at the Redcar Medical Centre, two miles away from Lackenby and was a "lone worker". The shift nurse would have a small car with flashing lights, sirens and medical equipment used as a first response emergency vehicle for any accident – or, no doubt, sudden ill-health – occurring at the Redcar plant which is part of the whole site. The Tribunal found that the shift nurse, based at Redcar, was called out to an emergency call about 20 times per year.
5. Mrs Mallon was interviewed for the shift nurse's job by the Respondents' Senior Medical Officer, Dr Wilson. He had held that position for 3 years and been employed by the Respondents and his predecessors for 22 years; and he had Occupational Health qualifications and experience which we set out in paragraph 12 of the Tribunal's Decision. In particular he was partly responsible for the production of guidelines on medical standards of fitness for occupations in British Steel, based on the DVLA standards and the recommendations of the Medical Commission on accident prevention. The Tribunal found that the guidelines and their source material were the product of highly informed and expert medical opinion. Dr Wilson was aware that, under these guidelines, insulin controlled diabetics were not allowed to drive heavy goods vehicles or public service vehicles and that it was recommended that insulin controlled diabetics should not drive an emergency vehicle or a taxi. Dr Wilson regarded the extreme conditions of the job for which he was interviewing Mrs Mallon as certainly no less than those which would be placed on an HGV driver and that it was his duty not to give to Mrs Mallon the job which she sought because to give that job to an insulin controlled diabetic would be to expose that job holder and all of the other workers to a known risk factor. The Tribunal found that Dr Wilson knew the workplace well and was amply well-qualified to reach the conclusions that he did. They said that he had taken a reasoned decision, with which the Tribunal fully agreed having heard his evidence, that it would be an act of crass irresponsibility to Mrs Mallon and to every other worker to allow her to take up the job of shift nurse.
6. When he interviewed Mrs Mallon, Dr Wilson did so without at first being aware that she was an insulin controlled diabetic. Her application form told him only that she was a diabetic whose condition was "well-controlled – no problem". There is no suggestion that in her application form Mrs Mallon was withholding information; at the interview she frankly told Dr Wilson that she was an insulin controlled diabetic. She had, Dr Wilson accepted, a very impressive CV; but he took the view that, however impressive her CV, he could not employ her as a lone worker in the post for which she had applied because of the risk arising from her insulin dependent condition. He therefore, no doubt not impolitely, terminated the interview when Mrs Mallon's condition emerged; she attempted to explain that her condition was well controlled and would not prevent her from doing the job she sought; but Dr Wilson stood firm and so the interview was brought to an end.
7. The Tribunal recorded that there was no issue but that Mrs Mallon was a disabled person within the meaning of that expression in the Disability Discrimination Act 1995 and that the Respondents had refused to offer or had deliberately not offered her employment for a reason which related to Mrs Mallon's disability. There was no issue, therefore, but that they would have been found to have discriminated against Mrs Mallon contrary to section 4(1)(c) of the Disability Discrimination Act 1995 unless, pursuant to section 5(1)(b) of that Act, they could show that the less favourable treatment of Mrs Mallon for a reason relating to her disability, as compared with others to whom that reason did not apply, was justified. The Respondents contended that their treatment of Mrs Mallon was justified.
8. Mrs Mallon further submitted that the Respondents were under a duty pursuant to section 6(1)(a) of the 1995 Act to make reasonable adjustments in the arrangements they made in respect of the shift nurse's job so as to prevent those arrangements placing her at a substantial disadvantage in comparison with persons not disabled. It was not in dispute that the Respondents did not make or seek to make any such adjustments; their case was that there were no adjustments which it was reasonable in all the circumstances of the case for them to have to take. Mrs Mallon's case was thirdly put forward on the basis that, by terminating the interview when it was in full flow and without at least finishing it before reaching a conclusion on her job application, Dr Wilson and therefore the Respondents had discriminated against her contrary to section 4(1)(a) of the 1995 Act in that they treated her in relation to the conduct of the interview, which was part of the arrangements which they made for the purpose of determining to whom the shift nurse job should be offered, less favourably than they would have treated others to whom the reason relating to Mrs Mallon's disability did not or would not apply. So far as that way of putting the case was concerned, the Respondents' answer was (1) justification (2) terminating the interview before it was finished was not part of the arrangements made for the purpose of determining to whom the Respondents should offer the job.
9. The Tribunal concluded:-

(1) That the Respondents were justified in refusing to employ Mrs Mallon in the job of shift nurse.

(2) That there were no reasonable adjustments which the Respondents could reasonably have been expected to carry out which would have altered that situation.

(3) (a) That the termination of the interview did not fall within the words of section 4(1)(a) of the 1995 Act because the termination of the interview was not itself an arrangement.

(b) The termination of the interview was in any event justified; since Dr Wilson was justifiably concerned that Mrs Mallon, because of her disability, could not be permitted to undertake the shift nurse's job, there was no point in continuing the interview which the Tribunal found would have "prolonged the agony" for Mrs Mallon.

(c) The termination of the interview did not put Mrs Mallon at a disadvantage.

10. We have described above the Tribunal's acceptance of Dr Wilson's views as to the extreme conditions in which the shift nurse's job would have to be carried out and as to his duty not to give that job to an insulin controlled diabetic. The Tribunal found that that view was not merely the view of Dr Wilson but of the overwhelming body of medical opinion in the area of health and safety at work. Even with a driver or assistant, if Mrs Mallon were to have a hypoglycaemic attack at the time that she was attending a patient in emergency, her driver or assistant would not know who to help first, the patient or the nurse supposed to be attending him.
11. The above conclusions on the facts are all to be found in paragraphs 11 to 17 of the Tribunal's Decision.
12. Mrs Mallon now appeals against all of these conclusions of the Tribunal upon the contentious issues between the parties which we have identified.

The Termination of the Interview

13. Miss Lewis, on behalf of Mrs Mallon, firstly submitted that the Tribunal erred in deciding, as they did in paragraph 22 of their Decision, that the termination of the interview was not part of the arrangements made for the purpose of determining to whom the Respondents should offer employment and therefore did not fall within section 4(1)(a) of the 1995 Act. She points out that the Code of Practice issued under the 1995 Act, at paragraph 5.2 advises as follows:-

"The word 'arrangements' has a wide meaning. Employers should avoid discrimination in, for example, specifying the job, advertising the job and the processes of selection, including the location and timing of interviews, assessment techniques, interviewing and selection criteria."

She draws attention to and relies upon the decision of the Employment Appeal Tribunal, presided over by Morison P, in Ridout v TC Group [1998] IRLR 628, in which it was accepted that the arrangements for the holding of an interview came within the meaning of arrangements for the purpose of that subsection. She argues that if an employer carried out an interview in a manner which disadvantages a disabled person – for example, by requiring a dyslexic to spell accurately – in so doing the employers would plainly be held to have discriminated under that subsection. By analogy she submits that terminating the interview prematurely is plainly part of the arrangements and that the Tribunal's decision to the contrary involves a misconstruction of the relevant statutory provision.

14. Miss Ellenbogen on behalf of the Respondents submits that when properly analysed, the argument put forward by Miss Lewis is not that the fact of termination constituted less favourable treatment but that the manner of the termination of the interview constituted less favourable treatment and that there was no warrant for the view that the manner of termination could be taken to be part of the arrangements under the relevant statutory provision; even if that is incorrect, the mere bringing to the end of an interview, she submits, is not an arrangement.
15. In our judgment the complaint, as we understand it, is not about the manner of the termination; there is no suggestion that Dr Wilson, in terminating the interview, did so in a manner different from that which he would have adopted in the case of anyone else who was not disabled where he believed that there were good reasons for terminating an interview; and there are no findings as to the manner of the termination – although Dr Wilson's evidence was that he terminated it as sympathetically as possible. The complaint here is about the fact of premature termination; and in our judgment the fact of premature termination of an interview is as much part of the arrangements falling within section 4(1)(a) as the conducting of the interview or indeed as a refusal to interview at all. We see no reason to distinguish between the early termination of an interview and, for instance, a case in which an interview was switched by the interviewer during its course into a format which the interviewer knew that the interviewee, because of a disability could not properly follow. In our judgment the decision to discontinue an interview before it has reached its natural end and the termination itself form part of the arrangements which the employer makes for the purpose of determining to whom he should offer employment; and in deciding to the contrary the Tribunal erred in law.
16. Miss Lewis' next point is that the Tribunal, in concluding at paragraph 22 of their Decision that the termination of the interview did not place Mrs Mallon at a substantial disadvantage, because precisely the same would have occurred in the case of others who were not disabled if something unexpected came up in the course of the interview which made it pointless to continue any further fell into error. The error which she submits the Tribunal made is what may, as shorthand, be called the Clark v Novacold error, ie the error of comparing Mrs Mallon's position with that of someone who was in the same situation but for a non-disability related reason when the correct question is – if Mrs Mallon did not have the disability which she had, would her interview have continued to the end?
17. We do not regard it as necessary to consider that submission, for two reasons. Firstly the Tribunal concluded that there was justification for less favourable treatment by early termination of the interview if such termination fell within section 4(1)(a) of the 1995 Act; and, if that conclusion stands, it matters not whether the Tribunal did or did not make the Clark v Novacold error. Secondly it follows from the point which we have just made that Mrs Mallon's case in relation to the early termination of the interview was not put as a failure to make reasonable adjustments under section 6(1) of the 1995 Act, which does require consideration as to whether the disabled person is at a substantial disadvantage – but it should be noted that for section 6(1) purposes a comparison with persons who are not disabled is required – but on the basis of discrimination under section 4(1)(a) and section 5 to which section 6(1) is not directly applicable and for the purposes of which it is not a necessary condition of success that the disabled person should be placed at a substantial disadvantage.
18. We propose therefore to turn to Miss Lewis' criticisms of the Tribunal's conclusions as to justification. She submits that the Tribunal took a paternalistic and legally impermissible approach by deciding that the Respondents were justified in terminating the interview and that Mrs Mallon was entitled to have her job application properly assessed and her suitability for the post fully considered without assumptions on Dr Wilson's part.
19. We are not at all persuaded by Miss Lewis' submissions on this issue, cogently as they were put. The reality was that Mrs Mallon could not guarantee that she would never have a hypoglycaemic attack. The Tribunal found that there was a known risk, established by the overwhelming body of medical opinion, that justified Dr Wilson in his view that he simply could not give the job to Mrs Mallon. That view was not only genuinely and reasonably held, as the Tribunal found, but was correct. They found, at paragraph 16, that:

"It would be an act of crass irresponsibility to the applicant and every other worker in the respondent company to allow any insulin controlled diabetic to take up the job of shift nurse."

The Tribunal found that had Dr Wilson continued the interview to its ordinary end he would have had to have subjected Mrs Mallon to a medical examination. As Dr Wilson said, the outcome of that examination would have been inevitable. The Tribunal concluded that not to have terminated the interview would simply have prolonged the agony.

20. In the light of those findings we have no doubt that it was open to the Tribunal on the primary facts to reach the factual conclusion that the early termination of the interview was justified. While a different Tribunal might have taken the view – although perhaps it might be thought to have been a surprising one – that Dr Wilson acted in paternalistic way, it was open to the Tribunal to resolve the issue of justification on the facts as they did; we can see no error of law in their approach to or resolution of that issue.
21. In her skeleton argument Miss Lewis submits that the continuation of the interview to its natural conclusion would have been a reasonable adjustment which the Respondents could and should have made. However, in oral argument she accepted that continuing the interview would not be an adjustment; and we need not say any more about this point.
22. We can well understand why Mrs Mallon was distressed not to have had a full interview; but in the light of the employer's assessment of the risk, which the Tribunal plainly found was wholly justified, prolonging the interview would have been of no value because it could not have influenced the outcome.

Refusal to Appoint

23. The thrust of Miss Lewis' submissions as to the refusal or failure of the Respondents to appoint Mrs Mallon to the post which she sought is that the Tribunal wrongly decided that the individual circumstances of Mrs Mallon's case did not need to be considered by them and that a blanket ban on employment of an applicant for the post which Mrs Mallon sought who was an insulin controlled diabetic could not be justified in the absence of individual and full medical assessment of Mrs Mallon's condition.
24. Miss Lewis drew attention to paragraph 19 of the decision in which the Tribunal accepted that, in considering whether less favourable treatment or a failure to make adjustments was justified, the Tribunal had to consider whether the reason for the treatment or the failure to make adjustments, as appropriate, was "both material to the circumstances of the particular case and substantial"; the circumstances of each particular case require consideration of the circumstances of both the employer and the employee; see paragraph 19 of the decision of the EAT in H J Heinz Co Ltd v Kenrick [2000] IRLR 144; but, she submitted, the individual circumstances of Mrs Mallon were not considered by the Respondents in this case.
25. Miss Lewis further relied upon two passages from the judgment of the Court of Appeal in Post Office v Jones [2001] ICR 805. That decision is the leading authority on the meaning and application of section 5(3) of the 1995 Act – and, by analogy, section 5(4) of the Act. Mr Jones was employed by the Post Office as a delivery driver; as in Mrs Mallon's case, he suffered from late onset diabetes and, after several years of oral medication and diet, his condition deteriorated and he became an insulin controlled diabetic. As a result he was told that he could no longer carry out driving duties. After consultation with their principal medical adviser, the Post Office offered to permit Mr Jones to return to driving which did not exceed 2 hours in every 24 hours; but he rejected that offer and claimed that the refusal to allow him to drive, save on the limited basis we have described, constituted disability discrimination. The issue for the Employment Tribunal was whether the Post Office's treatment of Mr Jones was justified. The Employment Tribunal did not consider whether the Post Office's risk assessment gave rise to a reason for their treatment of Mr Jones which was material and substantial but, instead, themselves tried the medical issue as to whether Mr Jones' condition posed a risk which was unacceptable. The Court of Appeal rejected Mr Jones' appeal against the allowing by the Employment Appeal Tribunal of the Post Office's appeal against the Tribunal's decision that the treatment of Mr Jones was not justified on the basis of their preference as to the medical evidence before them.
26. Pill LJ, having at paragraph 24 of his judgment said that in a case involving an assessment of risk Parliament did not intend to confer on Employment Tribunals a general power and duty to decided whether the employer's assessment of risk was correct, continued in paragraphs 25 to 27 as follows:-

"25 Upon a consideration of the wording of section 5(3) in context, I conclude that the employment tribunal are confined to considering whether the reason given for the less favourable treatment can properly be described as both material to the circumstances of the particular case and substantial. The less favourable treatment in the present case is the limit upon the hours of driving. The reason given for it is the risk arising from longer periods of driving. The employer obtained what are admitted to be suitably qualified and expert medical opinions. Upon the basis of those opinions the employer decided that the risk was such as to require the less favourable treatment. In order to rely on section 5(3) it is not enough for the employer to assert that his conduct was reasonable in a general way; he has to establish that the reason given satisfies the statutory criteria. The employer asserted in this case that the risk arising from the presence of diabetes is material to the circumstances of the particular case and is substantial. Where a properly conducted risk assessment provides a reason which is on its face both material and substantial, and is not irrational, the tribunal cannot substitute its own appraisal. ... .

26 ... Consideration of the statutory criteria may also involve an assessment of the employer's decision to the extent of considering whether there was evidence on the basis of which a decision could properly be taken. Thus if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence, or was an irrational decision as being beyond the range of responses open to a reasonable decision maker, ... the employment tribunal could hold the reason insufficient and the treatment unjustified.

27 The tribunal cannot, however, in my judgment, conclude that the reason is not material or substantial because the suitably qualified and competently expressed medical opinion, on the basis of which the employer's decision was made, was thought by them to be inferior to a different medical opinion expressed to them. Moreover, a reason may be material and substantial within the meaning of the section even if the employment tribunal would have come to a different decision as to the extent of the risk. An investigation of the facts by the tribunal will often be required but it cannot go to the extent of disagreeing with a risk assessment which is properly conducted, based on the properly formed opinion of suitably qualified doctors and produces an answer which is not irrational."

Kay LJ agreed with the judgment of Pill LJ. Arden LJ also agreed; at paragraph 36, she said:

"36 Section 5(3) uses the words 'material' and 'substantial'. In my judgment, those words cover different subject matter. 'Material' denotes the quality of the connection which must exist between, on the one hand, the employer's reason for discriminating against the employee and, on the other hand, the circumstances of the particular case. The circumstances of the particular case may include those of both the employer and employee. ... Under section 5(3), this connection must be 'material'."

And at paragraph 39, she continued:

"39 The second requirement in section 5(3) is that the reason should be 'substantial'. This means, in my judgment, that the reason which the employer adopted as his ground for discrimination must carry real weight and thus be of substance. ... It is sufficient if their conclusion is one which on a critical examination is found to have substance. Thus a reason which on analysis is meretricious would not be a 'substantial' reason. It would fail to meet the test in section 5(3)."

27. The overall effect of these judgments can, as we see it, be summarised in this way – that, in a case involving assessment of risk, the Tribunal is not to decide whether the employer's assessment of risk was correct but is limited to deciding whether the reason given by the employer for the less favourable treatment complained of can properly be described as material to the circumstances of the case, including the circumstances of both employer and employee, and substantial.
28. In the present case Dr Wilson made an assessment of the risk arising from Mrs Mallon's condition; that was, on the Tribunal's findings of fact, a properly conducted risk assessment taken on the basis of appropriate medical evidence; indeed, as the Tribunal expressly found, on the basis of the collective view of the overwhelming body of medical opinion in the area of health and safety at work. The reason given by the Respondents for their treatment of Mrs Mallon, namely the risk which had thus been assessed, was material; Miss Lewis did not seek to argue the contrary. The Tribunal plainly took the view that the reason was substantial because, having necessarily accepted that the terms of section 5(3) had to be satisfied, they concluded, inevitably on their primary findings of fact, that the treatment of Mrs Mallon was justified.
29. While Miss Lewis suggested that, in the absence of individual assessment of Mrs Mallon's condition, the reason could not be substantial, having regard to the findings made by the Tribunal as to the risk arising from any case of an insulin controlled diabetic in the circumstances in which the job which Mrs Mallon sought had to be carried out, any finding other than that the reason for Mrs Mallon's treatment was substantial would have been surprising, to say the least.
30. We were referred to a decision of the Employment Appeal Tribunal, which is as yet unreported, Murray v Newham Citizens Advice Bureau Ltd (EAT/554/01) in which, in the context of a complainant suffering from a schizophrenic condition, it was argued that the employers had made inadequate enquiries. The Employment Appeal Tribunal, presided over by H H J Serota QC, said, at paragraph 28:-

"28 It is clear that an Employment Tribunal is not permitted to substitute its views as to the merits of the decision of a prospective employer for those of the prospective employer. However, an employer must make such enquiries as are appropriate in the circumstances of the case. These circumstances are bound to vary infinitely."

And the EAT continued, in paragraph 29, as follows:-

"An Employment Tribunal should only interfere where the prospective employer's investigations are outside the reasonable range of responses by a reasonable prospective employer, in the circumstances."

31. The Tribunal in the present case came to the clearly expressed view that the Respondents had carried out reasonable investigations and made a reasonable risk assessment. At paragraph 19 the Tribunal accepted Dr Wilson's view that the very nature of the condition of insulin controlled diabetes, involving unpredictable episodes of inability to function, debarred all sufferers from that condition from certain types of job – including, on the Tribunal's findings, the job which Mrs Mallon sought. On the basis of the risk assessment which Dr Wilson made, which was not only not outside the range of reasonable responses but was based on the overwhelming body of relevant medical opinion, there was nothing which could have been achieved by any further medical investigation of Mrs Mallon. The Tribunal were not unmindful of Mrs Mallon's circumstances; they recited her medical history, insofar as it was relevant, in full; they indicated that at the outset they had been sympathetic to her case; but they reached the factual conclusion that the Respondents' treatment of Mrs Mallon was justified without misdirection as to the law. That was a conclusion which, on their findings of primary fact, it was open to them to reach.

Reasonable Adjustments

32. As to reasonable adjustments the Tribunal found at paragraph 21 that there was a total unavailability of reasonable and effective adjustments which could be made in this case; at paragraph 16 the Tribunal found that even if, which they found was not the case, the Respondents could reasonably have been expected to employ a driver or assistant to accompany Mrs Mallon at Redcar on a full-time basis, such provision would not have prevented or avoided the risk which would remain and that no adjustment of duties as between Lackenby and Redcar was remotely possible.
33. Miss Lewis submitted that, in this context too, the Tribunal had erred in failing to obtain and take into account individual assessment of her condition before concluding against Mrs Mallon on this issue.
34. It is clear from paragraph 20 of the Tribunal's Decision that there was argument before the Tribunal as to the approach which a Tribunal should take in a case in which the employer has not considered a step which subsequently it was said that the employers should have taken. Neither Miss Lewis nor Ms Ellenbogen addressed us on that issue, for good and sensible reasons. The Tribunal found as fact that there were no steps by way of adjustments which it was reasonably practicable for the Respondents to take. The only steps suggested by Miss Lewis, to which we have already referred, namely the obtaining of an individual medical assessment of Mrs Mallon's condition, would not have made any difference. There has been no suggestion that the Tribunal's finding of fact was perverse; it was a finding which, on the material before them, the Tribunal were entitled to make.

Conclusion

35. For the reasons we have set out above this appeal must be dismissed.