United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J TAYLER (of Counsel) Instructed by: Disability Rights Commission 2nd Floor Arndale House The Arndale Centre Manchester M4 3AQ
For the Respondents	MR PHILP COPPEL (of Counsel) Instructed by: Department for Environment Food and Rural Affairs Legal B2 - Civil & European Litigation Room 237 Nobel House 17 Smith Square London SW1P 3JR


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal from the Decision of an Employment Tribunal sitting at Exeter, whose Extended Reasons were promulgated on 21 December 2001, after a two-day hearing which had taken place earlier that month. The Applicant complained of discrimination, contrary to the Disability Discrimination Act 1995, and in particular alleged, firstly, a failure on the part of the Respondents to make adjustments, as they are required to do under section 6 of that Act, in relation to his working circumstances, and, secondly, he claimed that the Respondents discriminated against him by terminating his employment, when they would not have done so in the case of an individual who did not suffer from the medical condition from which the Applicant suffers. By a majority the application failed and was dismissed.
2. The background facts as found by the Tribunal were that the Applicant is Italian by birth, qualified as a veterinary surgeon in Italy in the mid 1980s, and subsequently came to England. For some time he has, unfortunately, been suffering from multiple sclerosis which results in him having, unfortunately, a very unsteady gait, and also the condition affects his physical ability to speak. This is in addition to the problems that the Applicant has, since his first language is not English, and he has some difficulty in understanding what is said to him, and in articulating his replies.
3. In February 2001, there was, as is well known, a serious outbreak of foot and mouth disease in this country, which particularly affected Devon. The Respondents expanded their organisation enormously in order to cope with the crisis, and in doing so recruited a substantial number of qualified veterinary surgeons to act as Temporary Veterinary Inspectors (TVIs); the Applicant was one such. Many of these inspectors recruited came from private practice, but a substantial number, of whom the Applicant was one, originally had come from abroad and did not have English as their first language.
4. They were appointed to the post under a written job description, and were required to have excellent communication skills, with a good knowledge of English, manual dexterity and the ability to carry out physical examination and testing of animals, premises, equipment and vehicles. They were paid a daily fee for each day worked, but the hours could be irregular and long. The appointment was subject to the qualification that either party might terminate on twenty four hours' notice. Work was offered to them, and at the height of the crisis, there was a continual need for them to be available every day, although they were not obliged to accept any particular offer of work, although many of them did so.
5. They were required to visit farms throughout Devon for the purpose of inspecting livestock, cattle, sheep and so-forth to try and identify the incidence of foot and mouth disease, so that the appropriate action could be taken. The Appellant would work together with a technician, not always the same person, and the Allocations Manager, Mrs Linda Farrant, herself a qualified vet, received reports from a number of technicians that they were unhappy at working with the Applicant. The problems were twofold: the Applicant found considerable difficulty in walking across typical farmland terrain, which by its very nature, was wet, soft underfoot and often very rough as a result of hoofprints. The Appellant frequently complained of pain in the foot, and appeared to experience considerable discomfort in moving around the difficult areas that he had to visit. He also fell over, although there was a dispute about the number of times that occurred. The Tribunal, however, found that the number was substantial, and on occasions, he had to be assisted out of the mud by his assistant and/or the farmer. The detailed examination of the animals, if required, was also difficult and physically demanding, although there is no suggestion from a technical point of view that the Appellant's veterinary skills were in any way deficient. There were also reports as to the difficulties with the Appellant communicating with the farmers with whom he was dealing, and despite the hopes of the manager, those communication skills did not appear to improve.
6. The Appellant had started this work on 26 March 2001. In the first few weeks, Mrs Farrant had tried to alleviate the problem, so far as the Applicant was concerned, by sending him to farms which she believed to be fairly small, and where she believed there were comparatively few animals to be inspected. However, she could not have any control over the physical conditions under which the inspection had to take place, or indeed, how many animals eventually had to be inspected.
7. On 26 April Mrs Farrant spoke to Mr Bennett, who was her immediate manager, to set out her concerns. Whilst he was aware in general terms of the Respondents' Equal Opportunities documentation, he did not consult it, nor did he take any steps to consult with an employment adviser. When first employed, the Appellant had told the officer that he suffered from a physical condition which affected his mobility, but it was not until Mr Bennett saw the Applicant on 27 April that the Appellant first told the Respondents that he was suffering from multiple sclerosis. It appeared that the Respondents' main concern at that time was the safety of the Appellant and the dangers to him of slipping and/or falling and/or being trampled on by an animal. Before speaking to the Appellant, Mr Bennett had received advice from his Personnel Department, to the effect that in view of the health and safety of the Appellant and of the technicians working with him, he could no longer be utilised as a TVI in the field. There was consideration given to a possible alternative position involving desk work, but Mr Bennett concluded that by reason of the Appellant's communication difficulties, it would not be a practical proposition to deploy him within the Allocations Section. He did not discuss the situation with the Appellant before reaching that conclusion. At the meeting on 27 April, the parties had a discussion; Mr Bennett set out his concerns, and indicated that the appointment would have to be terminated.
8. At the hearing before the Tribunal, the Respondents conceded that the Appellant fell within the definition of employee, within section 68 of the Disability Discrimination Act 1995. The Tribunal added:

"If it were necessary for us to reach a conclusion we would find that the applicant was self-employed in that capacity".

9. The Appellant's first complaint was that the Respondents failed to undertake adjustments required under section 6, being steps which they could have taken over and above the steps which they took of endeavouring to send him to small suitable farms. The Tribunal found that the Respondents had taken some steps to satisfy their duty in trying to re-organise the Appellant's duties, as we have explained, but in particular found that the Respondents ought to have taken further steps, in particular by referring the situation to a disability adviser, or seeking specialist advice or guidance. The Tribunal then found that this failure to comply with that duty was justified, being both material to the circumstances of the particular case and substantial, and by a majority found that the Respondents' failure was justified in the light, as they called it, of the "fast moving and difficult situation in which the Respondents were acting" arising out of the foot and mouth crisis. The minority view of the Tribunal was that the Respondents could and should have taken further steps to investigate alternatives for the Appellant, and therefore their failure was not justified.
10. The second limb of his complaint related to the termination of his appointment as a TVI, and again, the majority view of the Tribunal was that they were justified in their treatment because of the circumstances concerning the "very difficult situation in which the Respondents found itself" as a result of the crisis. The Tribunal commented that the Respondents had considered the possibility of an alternative post within the Allocations Section, although they did not discuss it with him, and that they rejected this because of the communication difficulties, which were in part attributable to his disability.
11. The minority view in the Tribunal was that before the Appellant was dismissed, there were other substantial enquiries which the Respondents could and should have undertaken before concluding that they could no long utilise his services in any capacity.
12. There is before us both an appeal and a cross-appeal which raises a number of interesting points on the proper construction and interaction of sections 5 and 6 of the Disability Discrimination Act. The cross-appeal, however, as a preliminary point, seeks to go behind the concession made at the original hearing, as to the Appellant falling within the definition of employee, and we propose to deal with that issue first.
13. The power of this Court to allow a new or conceded point of law to be raised should only be exercised in exceptional circumstances. In Jones -v- Governing Body of Burdett Coutts School [1999] ICR 38 Robert Walker LJ made the position clear at page 44B:

"These show that, although the appeal tribunal has a discretion to allow a new point of law to be raised or a conceded point to be re-opened, the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which, because the point was not in issue, were not sufficiently investigated before the industrial tribunal."

In Glennie -v- Independent Magazines (UK) Ltd [1999] IRLR 719, Lord Justice Laws at paragraph 18 put the position as follows:

"The Employment Appeal Tribunal possesses a discretion, which must be exercised in accordance with established principles, to allow a new point to be raised before it for the first time. It is a general principle of the law that it is a party's duty to bring forward the whole of his case at the proper time. The reasoning of Robert Walker LJ in Jones -v- Governing Body of Burdett Coutts School [1998] IRLR 521 is, with great deference, consonant with this. A new point ought only to be permitted to be raised in exceptional circumstances, as Robert Walker LJ held at p.44B. If the new issue goes to the jurisdiction of the Employment Appeal Tribunal below that may be an exceptional circumstance, but only, in my judgment, if the issue raised is a discrete one of pure or hard edged law requiring no or no further factual inquiry. There is a public interest, beyond the interests of individual parties, that statutory tribunals exercise the whole of but exceed none of the jurisdiction which Parliament has given to them upon such facts as are proved or admitted before them."

14. Whilst we accept that the issue as to whether or not the Appellant was an employee within the meaning of the relevant Act, is an issue which goes to the jurisdiction of this Court, is the issue before us a discrete one of "pure or hard edged law requiring no or no further factual enquiry"? Both parties have referred us to the definition of employment, under section 68 of the Disability Discrimination Act 1995 namely:

"employment under a contract of service or apprenticeship or a contract personally to do any work and related expressions are to be construed accordingly."

They compare this definition with the definition of "employee" and "worker" under section 230 of the Employment Rights Act 1996. In that Act, an employee is defined as:

"an individual who has entered into or works under …… a contract of employment."

A contract of employment is defined as:

" a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

Under section 230(3) A worker means an individual:

"who has entered into or works under (or, where the employment has ceased, worked under) -

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer or any profession or business undertaking carried on by the individual."

15. The Respondents contend that under either definition, there has to be an irreducible minimum of mutual obligation necessary to a contract of service which, on the facts as found by the Tribunal, did not exist. They point in particular to the appointment being on a strict temporary basis; to the offer of appointment not being a guarantee of work; to the TVI not being obliged to accept any offer of work, and the absence of other benefits, such as paid leave and holidays, and referred this Court to the decision of the House of Lords in Carmichael & Another -v- National Power PLC [1999] ICR 1226. In that case, following interviews, the applicants received letters offering and returned letters accepting employment on a casual, as required basis, as tour guides. The applicants were not obliged to take work, and the employers did not guarantee that work would be available. They were paid only for the hours they worked, and tax and National Insurance contributions were deducted. Lord Irvine of Lairg LC, said at page 1231B:

"The documents contained no provisions governing when, how, or with what frequency guide work would be offered; there were no provisions for notice of termination on either side; the sickness, holiday and pension arrangements for regular staff did not apply; nor did the grievance and disciplinary procedures. Significantly, as Kennedy LJ in his dissenting judgment with which I agree emphasised, in 1994, for example, Mrs Carmichael was not available for work on 17 occasions nor Mrs Leese on eight. No suggestion of disciplining them arose. The objective inference is that when work was available they were free to undertake it or not as they chose."

The House of Lords agreed with the original Tribunal finding that the applicants were not employees of the company. The Respondents contend that this issue can be determined from the Tribunal's findings and does not require any further factual enquiry.

16. The Appellant however, contends that there is an issue of fact to be determined, and that therefore this Court should not allow that issue to be opened. Mr Tayler contends that there may be sufficient mutuality of obligation, as a result of further consideration of the documents that passed between the parties, setting out the terms under which the Appellant was going to work, and also contends that each day's work may, in itself, satisfy the definition of "an employee", as, indeed, the Tribunal found, albeit without a detailed consideration of the legal and factual issues involved. Whilst the decision in Carmichael and the similarity of facts in this case provides persuasive authority for us, we note that it was a decision under the Employment Rights Act rather than the Disability Discrimination Act, and we are satisfied that there are further issues of fact which the Tribunal would have had to determine had the issue had been raised before them. Accordingly, following the reasoning in the Glennie case, we will not allow the Respondents to raise this fresh matter before us.
17. We turn then to the substantive point of the appeal in relation to sections 5 and 6 of the Disability Discrimination Act.
18. Section 4 of the Disability Discrimination Act 1995 provides that:

"(2) It is unlawful for an employer to discriminate against a disabled person whom he employs
….-
(d) by dismissing him, or subjecting him to any other detriment."

Section 5 provides that:

"(1) For the purposes of this Part, an employer discriminates against a disabled person if -

(a) for a reason which relates to the disabled person's disability, he treats them 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.

(4) For the purpose of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.

(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."

Section 6 provides that:

"(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 and other resources;
(e) the availability to the employer of financial or other assistance with respect to taking the step."

19. The Appellant's contention is that the Tribunal, in coming to a conclusion that the Respondents failed to take all reasonable steps to make adjustments, had to consider under section 6(1) "all the circumstances of the case", which would have included the circumstances of the foot and mouth crisis. He therefore contends that it would be perverse for the Tribunal to find that the Respondents' actions were justified under section 5(2)(b), using the selfsame excuse, namely the foot and mouth crisis, which they had or should have taken into account under section 6. He further contends that it cannot be right for a large organisation, such as the Respondents, to be able to use a crisis, such as the outbreak of foot and mouth disease, as an excuse for not complying with their statutory duty not to discriminate. The Appellant also points to the failure of the Tribunal to take into account the relevant parts of the Code of Practice: Disability Discrimination 1996. Under section 51(5) of the Disability Discrimination Act 1995

"if any provision of a code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question."

In Clarke -v- Novacold Ltd [1999] ICR 951, at 968F, Mummery LJ said:

"(6) The question whether treatment has shown to be justified is a question of fact to be determined on a proper self-direction on the relevant law. Such a self-direction includes taking into account those parts of the Code of Practice which a reasonable tribunal would regard as relevant to the determination of that question"

The Code contains general advice and guidance to help avoid discrimination under the headings of "Be flexible" "Do not make assumptions" "Consider whether expert advice is needed" "Plan ahead" and "Promote equal opportunities". Whilst these were not specifically referred to by the Tribunal, we do note that their principal complaint against the Respondents is a finding that they had not sought specialist advice such as a disability adviser, and we are certain that they very much had in mind the advice given in the Code.

20. The Code also provides examples where a failure to comply with a duty of reasonable adjustment could be justified, and they set out the following examples:

"4.34 ……An employer might not make an adjustment which it was reasonable for him to have to make because of ignorance or wrong information about appropriate adjustments or about the availability of help in making an adjustment. He would then need to justify failing in his duty. It is unlikely that he could do so unless he had made a reasonable effort to obtain good information from a reputable source such as contacting the local Placing Assessment and Counselling Team or an appropriate disability organisation

If either of the two possible adjustments would remove a disadvantage, but the employer has cost or operational reasons for preferring one rather than the other, it is unlikely to be reasonable for him to have to make the one that is not preferred. If, however, the employee refuses to cooperate with the proposed adjustment the employer is likely to be justified in not providing it.

A disabled employee refuses to follow specific occupational medical advice provided on behalf of an employer about methods of working or managing his condition at work. If he has no good reason for this and his condition deteriorates as a result, the refusal may justify the employer's subsequent failure to make an adjustment for the worsened condition."

21. None of those examples appear to us to impact directly on the decision that the Tribunal had to take in this case, namely whether the impact of the foot and mouth disease on the Respondents and the resulting crisis, provided justification for their failure to make reasonable adjustment, save that those examples would suggest that it would require, by way of justification, a supervening event, such as the actions of the employee or a third party.
22. For the Respondents, Mr Coppel contends that there may indeed be an overlap with matters that were taken into account in deciding whether there has been a failure to make reasonable adjustments, under section 6, which may also be taken into account in considering whether the failure to comply with the section 6 duty can be justified. He points in particular to the issue of cost, which can be taken into account, on the issue of justification under section 5(7)(a) and also on the issue of adjustment - see section 6(4)(c). He contends that the Tribunal can legitimately give different weight to the same factor, according to whether it is considering if there has been a failure to make reasonable adjustment or whether it is considering if the failure to comply with that duty was justified, and contends that the two issues have a different focus, and it is for the Tribunal to give different weight to the same factor, according to whether it is considering that there has been a failure to make reasonable adjustment, or whether it is considering that the failure to comply with that duty is justified assuming the factor is relevant to both.
23. For example, it is plain that the Tribunal in paragraph 23, in deciding that there had been a failure to make reasonable adjustments, and referring to the circumstances of the case, said nothing as to the Respondents' particular problems, arising out of the crisis. On the other hand, the Tribunal, when it came to the consideration of justification, was prepared to afford much greater weight to the Respondents' resources in the particular circumstances of the crisis. Further, the Tribunal is assisted with regard to the breach of duty allegation under section 6 by the checklists contained in both subsections (3) and (4). There are thus many factors for the Tribunal to consider when assessing "all the circumstances of the case".
24. We accept the Respondents' contentions with regard to these matters, and reject the Appellant's notion that factors taken into account for the purposes of section 6 which result in a finding that there has been a failure to make reasonable adjustments, cannot, as a matter of law, be relevant to a finding that the failure to comply with the duty was justified; although on the facts of this case, it would appear that the Tribunal preferred to consider the impact of the crisis as giving rise to justification, rather than as part of the general circumstances of the case under section 6. The Respondents, in their cross-appeal, complain that the Tribunal should more properly have considered these matters as part of the circumstances of the case, under section 6 and should then come to a decision that there was no breach of duty. We are satisfied that the process of analysis conducted by the Tribunal in paragraphs 23 - 25 of their Decision was correct and reject the Respondents' arguments in their cross-appeal.
25. In particular, the Tribunal reminded themselves in paragraph 24 that the failure to comply with a duty can only be justified under section 5(3) if the reason for it is both material to the circumstances of the particular case (a repetition of the phrase found in section 6(1) ) and "substantial". They then went on to find in paragraph 25 as follows:

"…..We bear in mind that the respondents were in an extremely difficult situation. They were managing a crisis, the scale and extent of which was not at all clear at that stage and appeared to be developing at a very rapid pace. They were under considerable pressure from Press and public and the agricultural community. They lacked the time to make the detailed enquiries which might otherwise have been reasonable to find out what other action might have been feasible. The majority view is that the failure was justified in the light of the fast-moving and difficult situation in which the respondents were acting. We express no view as to the likelihood of any such further enquiries leading to the continuation of the applicant's appointment; it might still have been terminated in any event."

We agree with the analysis of the Tribunal on the issue of justification. We should point out that we would not wish our comments on this particular case to be regarded as in any way a licence to employers to put to one side the positive duties that they owe as employers to disabled employees, simply because they are under pressure in dealing with urgent or more pressing problems within their organisation. The circumstances of this particular case were, in our view, wholly exceptional, for the reasons that were clearly set out in paragraph 25 of the Decision and thus entitled the employers, in the very special circumstances of this case, to, as Counsel for the Respondents put it, "take their eye off other matters". For these reasons we reject the Appellant's contentions on this point.

26. Finally, we pass to the issue of the termination of the employment. There was no dispute that the Applicant had his employment terminated and was dismissed in circumstances which, prima facie would amount to discrimination. It therefore falls in the same way to the Respondents to show that the treatment was justified. In passing, we note that under section 5(5), if the employer had failed on his justification defence under section 6, his treatment of the Appellant cannot be justified for dismissal purposes, unless it would have been justified, even if he had complied with the section 6 duty. Once again, for the purposes of dismissal, have the Respondents justified the treatment on the basis that it is both material to the circumstances of the particular case and substantial? The majority view was that the Respondents were justified in treating the Applicant as they did, in that they could not simply continue to utilise his services as a TVI, and rejected the possibility of an alternative post within the Allocations Section we have previously mentioned. The Tribunal went on to say this:

"It is not for the Tribunal to substitute its judgment for that of the respondent. Whilst we have seen the applicant give evidence and will have inevitably formed out own view, we have to ask whether the view that the respondent took was one which a reasonable employer might have formed. The majority view is that the action in dismissing the applicant was justified having regard to the very difficult situation in which the respondent found itself."

27. Counsel for the Appellant has referred us to a passage in the speech of Pill LJ in Post Office -v- Jones [2001] ICR 805, where at paragraph 26 it stated thus:

"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, a test approved by Sir Thomas Bingham MR in a different context in R v Ministry of Defence, Ex p Smith [1996] ICR 740, 777-778, the employment tribunal could hold the reason insufficient and the treatment unjustified."

We do not read that paragraph as a formal requirement that there has to be medical evidence or other expert advice before the issue of justification can properly be determined, but clearly the absence of such material is a factor that the Tribunal should take into account. However, in the light of our decision as to the correctness of the Tribunal's approach on the issue of justification under sections 5(3) and 6, we cannot fault their approach on the issue of dismissal, and would accordingly dismiss the appeal and cross-appeal in this case.