United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DAMIEN BROWN (of Counsel) Instructed by: Messrs Graham Clayton Solicitors Hamilton House Mabledon Place London WC1H 9BD
For the Respondent	MS RACHEL WEDDERSPOON (of Counsel) Instructed by: Messrs Fox Brooks Marshall Solicitors Century House St Peters Square Manchester M2 3DN


 


MR RECORDER HAND QC

1. This is an appeal by Ms P. Shrubsole, the Applicant below, against a decision of an Employment Tribunal, (the "ET") sitting at Manchester on 27^th – 30^th November 2001 and again on 7^th – 8^th February 2002, a written decision, comprising Extended Reasons, having been promulgated and sent to the parties on 27^th February 2002. After hearing submissions from counsel on 28^th January 2003, we indicated that we would allow this appeal and remit the matter to the same ET but would reserve a reasoned judgment to be delivered in writing at a later date.
2. Ms Shrubsole had complained of unfair dismissal and disability discrimination. The ET found in her favour on the former but took the view that a fair dismissal would have inevitably followed relatively shortly afterwards and so compensation fell to be calculated by reference to a short period only; the ET rejected her case on disability discrimination. Ms Shrubsole appeals against both the rejection of her case on disability discrimination and the restricted nature of the finding in her favour on unfair dismissal.
3. As the ET found Ms Shrubsole had been employed by the Respondent, the Governors of Wellington School ("the School"), as a French teacher since 1991. The School is a "foundation" school in respect of which Trafford Metropolitan Borough Council, as Local Education Authority had certain "advisory rights" pursuant to Schedule 17 of the School Standards and Framework Act 1998 but the School was the employer for the purposes of the relevant employment protection and discrimination legislation.
4. Ms Shrubsole was:

"... a very capable linguist and a competent teacher ..."

(ET decision paragraph 5)

but her health had deteriorated as a result of a series of family bereavements to the point where by April 1999 she was:

"...in an emotionally fragile state and had become clinically psychologically vulnerable"

(ET decision paragraph 11).

After a meeting with the headmaster of the School, which raised criticisms about her performance and which coincided with a yet further family crisis (namely an accident involving her daughter), Ms Shrubsole consulted her General Practitioner and was certified, initially for a period of 2 weeks, as unfit to work due to stress. This certificate was succeeded by other similar ones of longer duration and Ms Shrubsole never returned to work. As was conceded at the ET hearing, Ms Shrubsole was suffering from a disability, "anxiety stress disorder", within the meaning of section 1 of the Disability Discrimination Act 1995 (the "DDA"). One specific facet of her emotional stress at this time was that she could not face meetings in order to discuss her absence "from a psychological point of view (ET decision paragraph 17) and:

"...had formed an uncontrollable "fear" of, or at any rate a deep-rooted reluctance to come face to face with.. the headmaster."

(ET decision paragraph 19).

5. The situation continued into the following year and, at a meeting of the Governor's Personnel Committee of the School held on 22^nd February 2000 and convened to discuss Ms Shrubsole's situation, the trade union officer representing Ms Shrubsole was in possession of a file, the cover of which the Governors present (or some of them or their representatives) were able to read. It disclosed that the category of advice to which the file had been assigned was that of "early retirement/infirmity" (ET decision paragraph 31). This led the headmaster and the School to conclude that it was Ms Shrubsole's intention never to return to work and on 28^th February 2000 the School wrote a letter of dismissal to Ms Shrubsole in the following terms (ET decision paragraph 36) :-

"...[the committee]...consider that you have made a decision not to return to work and it is with this prospect in mind that you are being advised by your union.

As a result the ... Committee decided unanimously to terminate your contract and give notice with immediate effect. ... Your contract will terminate on 30 April 2000"

6. Ms Shrubsole complained that her dismissal was unfair and that the School had discriminated against her as a disabled person by dismissing her (sections 4(2)(d) and 5(1)(a) of the DDA) and/or by failing to make adjustments in connection with that disability (sections 5(2) and 6 of the DDA). Proceedings were originally brought against both the School and the Local Education Authority but at some stage the case against the latter was abandoned and the case went on only against the School.
7. Both in respect of unfair dismissal and disability discrimination it was necessary for the ET to answer the question - what was the reason for the dismissal? In respect of unfair dismissal the question arises because of the terms of section 98(1) and (2) of the Employment Rights Act (the "ERA"); in respect of disability discrimination it arises because of the terms of section 5(1)(a) of the DDA. At paragraph 38 of its decision the ET had said:-

"... (c) the reason given by the respondent for the applicant's employment was their belief that she had made a decision not to return to work."

8. The ET then refer to the reason for dismissal at paragraph 43 of the decision in the following terms:-

"So far as the reason for the dismissal is concerned, this has already been identified above. The way in which the Tribunal viewed the reality of the reason, however, was that the Governors had concluded that the applicant because of her incapacity through illness to return to work, had concluded that she had no intention of doing so. The subsequent evidence given on behalf of the respondent that the true reason for dismissal related to the applicant's capability rather than her intention is not in truth as contradictory as it may at first sight appear but rather a different way of saying the same thing. In the Tribunal's view, it does not matter whether it was the applicant's intention not to return that was the reason (which would be some other substantial reason justifying dismissal) or her incapability of returning to work by reason of her illness. The Tribunal is content that the reason for dismissal be identified as being categorised under either or both of those headings even though the basic reason was in reality the same."

The underline is not our emphasis; it appears in the text of the original decision.

9. The only previous reference to the reason for dismissal is that in paragraph 38 of the ET's decision, as set out at paragraph 6 above. The analysis by the ET at paragraph 43 seems to have been in response to the argument put forward by the School that the ET should look behind the stated reason to the "real reason", namely ill-health incapacity. Its significance lies in the last sentence of paragraph 43; the ET concluded that whether the reason was expressed one way or another, it very much came to the same thing, namely that Ms Shrubsole's absence had led to her dismissal and that her absence had been caused by her illness.
10. The ET had no difficulty in concluding that the dismissal was unfair but, with the agreement of the parties, went on to consider whether, had the School:

"... acted fairly in the manner in which the applicant's case was dealt with, the outcome would have been any different having regard to the well-known case of Polkey v A E Dayton Services Limited [1988] ICR 142."

(Paragraph 45 of the ET's decision). The ET then made what it described at paragraph 46 of its decision as "... a significant finding as to fact." This was in the following terms:-

"Even prior to the events of April 1999, the applicant had, in the Tribunal's judgment, formed an adverse view as to Mr Watson's personality and style of management. Following the events in April 1999, and progressively until February 2000, her view of Mr Watson and her perception of the way in which he treated her situation or otherwise, was to make her feel too ill to contemplate it. Had Mr Watson adopted a different approach towards her from the outset, then things may well have been different. However, the unanimous conclusion of the Tribunal was that, whatever the rights and wrongs of Mr Watson's approach, his behaviour and actions were not such as to warrant objectively that sort of reaction from someone who was not in the psychological condition of the applicant. It must be remembered that she had been receiving treatment and attention from her General Practitioner in relation to matters of a personal nature and that she had developed what is accepted as being a recognised clinical disability, namely anxiety stress disorder. She was psychologically vulnerable in a manner that a "normal" teacher would not have been and it was that vulnerability which led to her reaction to and perception of Mr Watson's approach and conduct such as to render her ill. The Tribunal has formed the unanimous belief that, by the time the proceedings leading to the applicant's dismissal had come about, the applicant had made a conscious and definite decision that, whilstsoever Mr Watson was Headmaster at Wellington School, there was no way that she was going to return to teach there. Other than changing his personality and style of management (which he was not obliged to do) there was nothing in real terms that Mr Watson could do to change the applicant's mind about that."

11. In the succeeding paragraphs (i.e. 47 to 50), the ET concluded that, following on from its finding at paragraph 46 as set out above, Ms Shrubsole would not have returned to work and the School, by acting "... fairly in its procedures...", would have given notice of termination by the end of May 2000 to expire on 31^st August 2000 and that, accordingly, the compensatory award should be limited to the period between her dismissal and that date.
12. The ET then turned its attention to the allegations of disability discrimination. They set out some of the provisions of the sections 4(2), 5(2) and 5(4) of the DDA and referred to (but did not quote) section 6 of the DDA. There is no explicit reference to section 5(1) of the DDA.
13. At paragraph 54 of the decision the ET deals with Ms Shrubsole's case under the DDA in the following terms:-

" The respondent, the Tribunal finds, genuinely concluded that the applicant did not intend to return to work. The Tribunal finds that, from her own personal point of view, she was justified in coming to that conclusion because her metal condition was such that, whilstsoever Mr Watson was there, she simply could not do so. In the unanimous view of the Tribunal, therefore, there were no adjustments which the respondent could reasonably make to enable her to return in any capacity or on any basis, unless of course Mr Watson was removed from his position as Headmaster, which of course the respondent was not obliged to do."

14. That paragraph addresses the question of discrimination contrary to sections 5(2) and 6 of the DDA. Paragraph 55, however, deals again with the reason for dismissal. It reads:-

"Furthermore, since the reason for the dismissal was because the respondent believed (as the Tribunal finds justifiably) that the applicant had no intention of returning to work, the decision to dismiss the applicant was not related to the applicant's disability but to that decision."

Although the ET decision does not say so in terms, this paragraph must be addressing the issues raised under sections 4(2) and 5(1) of the DDA.

15. Having reached those findings the ET went on to conclude that the complaints of disability discrimination should be dismissed. Other complaints relating to breach of contract and a written statement of reasons were also dismissed but these do not now form any part of this appeal, having been dismissed at the preliminary hearing stage of this appeal, and we need not consider that aspect of the case any further.
16. Mr Brown, on behalf of Ms Shrubsole, argues that the ET has either misdirected itself as to sections 4(2) and 5(1) of the DDA; alternatively its decision is one that no reasonable tribunal properly directing itself on the evidence could have come to. There is before us, he submits, quite enough material for us to reach a conclusion on this matter and he invites us to substitute a finding of discrimination under section 5(1) of the DDA, subject to the issue of justification. If we accept that primary submission, he argues that it must follow the ET has failed to consider the question of justification under section 5(2) of the DDA and that the matter should be remitted for it to do so. Furthermore, although the ET has referred to adjustment, it has only done so from the point of view of Mr Watson and then only in the light of an erroneous decision as to dismissal without reference to the Code of Practice for the Elimination of Discrimination in the Field of Employment against Disabled Persons or Persons who have had a Disability issued on 25^th July 1996 pursuant to section 53(1)(a) of the DDA ("the Code") and without consideration of the relationship, which adjustment might have to dismissal and to justification. Thus, if the matter must be remitted on the question of justification, it should also be remitted for further consideration of the question of adjustment under section 6 of the DDA.
17. The amended Notice of Appeal also takes issue with the ET's approach to the question as to whether the compensatory award should be restricted to the period during which a fair procedure might have been carried into effect. At paragraph 42 of its decision the ET said:

"...at least from a procedural point of view and probably from a substantive point of view, the dismissal of the applicant was unfair."

Polkey, the Notice of Appeal argues, applies to procedural, and not substantial, unfairness and the ET has found, in effect, that the dismissal was both procedurally and substantively unfair so the Polkey approach should not have been adopted.

18. As Ms Wedderspoon points out in her skeleton argument, the Court of Appeal in O'Dea v ISC Chemicals Limited [1996] ICR 222 has indicated that drawing a distinction between substance and procedure may not be helpful. Mr Brown, seeing the force of that, did not develop this aspect of the Notice of Appeal. The issue of restriction of compensation was, he said, dependent on whether or not we accepted his submissions on the disability discrimination aspects of this appeal and, if so, whether, at the remitted hearing, the ET found the dismissal not to be justified; then the question of compensation would need to be reconsidered in any event.
19. Ms Wedderspoon agreed with Mr Brown's approach to this issue. On the issues relating to disability discrimination she submitted that the ET was entitled to reach the conclusion at paragraph 55 that the dismissal was not related to disability. The ET had found that Ms Shrubsole was dismissed because it was believed by the School that she did not intend to return to work; it was open to the ET to find that was not related to her disability, that was a finding of fact and paragraph 55 does not disclose any misdirection as to sections 4(2) and 5(1) of the DDA. On the question of adjustments, paragraphs 46 and 54 of the decision show the ET correctly addressing itself to that issue by asking what adjustments could have been made and reaching the obvious and unimpeachable conclusion that the headmaster could not be required to adjust his behaviour .
20. In Clark v TDG Ltd t/a Novacold [1999] IRLR 318, which we have been told by Ms Wedderspoon was not cited to the ET, the Court of Appeal's concern with the correct interpretation of section 5(1)(a) of the DDA focused on the phrase "that reason". It was accepted that Mr Clark had been dismissed for a reason, which related to his disability and we remind ourselves that at paragraph 53 of the judgment Mummery LJ, who delivered the unanimous judgment of the court, describes the question as to whether someone has been dismissed for a reason which relates to the disability as a question of fact. Thus there is nothing in Clark, which bears directly on the interpretation of:

"..for a reason which relates to the disabled person's disability...".

It is worth noting, however, that at paragraph 57 Mummery LJ recites the appellant's argument in these terms:-

"A contrary interpretation is submitted on behalf of Mr Clark. His argument is that "that reason" refers only to the first three words of the paragraph - "for a reason". The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression "which relates to the disability" are words added not to identify or amplify the reason but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able bodied person) to complain of his treatment. ..."

21. It is clear from the succeeding paragraphs of the judgment (paragraphs 58 to 72, particularly paragraph 63) that the court accepted this interpretation. We think it would be helpful for Employment Tribunals to remind themselves, when considering whether there has been less favourable treatment of a disabled person:

"... for a reason which relates to the disabled person's disability ...",

that those words are there to "

"...specify a link between the reason for dismissal and ..[the]...disability ...".

Thus understood, it becomes more obvious that the relationship between the reason for the dismissal and the disability need not be direct. To find that the employee has been dismissed because of their disability would axiomatically place the employer in breach of sections 4(2) and 5(1)(a) of the DDA but to conclude that the reason for dismissal was not the disability does not mean that the employee's case can be rejected without further inquiry; in such a case, it is then necessary to ask whether the reason for dismissal has a relationship to the disability in the sense that it is linked to it.

22. With that in mind we return to paragraph 55 of the ET's decision (set out in full at paragraph 13 above). There the ET identify the reason for dismissal as the School's belief that Ms Shrubsole did not intend to return to work. This reason, say the ET, was not related to her disability because:

"... the decision to dismiss the applicant was not related to the applicant's disability but to that decision".

As expressed, this seems entirely circular; better sense might be made of it by reading "that decision" as not referring to "the decision to dismiss" but to the School's belief as to Ms Shrubsole's intention; in other words substituting the word "belief" for the word "decision" as the last word of the sentence.

23. It seems to us, however, that even with such an elastic reading (or rather rewriting), paragraph 55 discloses that the ET has misdirected itself. Although the ET has identified the reason for dismissal as not being because of disability but due to a belief as to the intentions of Ms Shrubsole and has characterised it as not being related to her disability, there is nothing to suggest that the ET has considered, in terms of an examination of the nature of the reason for dismissal and the nature of the disability, whether there was a relationship or link between the reason for the dismissal and the disability. Here the belief as to the applicant's intent arose from the circumstance of her continued absence due to her anxiety stress disorder; this disorder kept her from returning to work. Thus the two had a relationship and were linked together. In our judgment, the finding by the ET that the two were not related must proceed from the erroneous perspective that the ET need not look any further than the characteristics of the reason for dismissal.
24. Mr Brown asked us to consider an alternative submission as to whether the ET erred in law on section 5(1)(a) of the DDA by reaching a decision, which was perverse in the sense that no reasonable tribunal properly directing itself could have reached such a conclusion on the evidence presented to it. We have reminded ourselves again that a decision under section 5(1)(a) is a question of fact and that allegations of "perversity" must be subjected to careful critical analysis. Nevertheless we have reached the conclusion that Mr Brown's submission is correct and that, if we are wrong to find any misdirection of the part of the ET, nevertheless its decision cannot stand. The ET has ignored, or failed to recognise the significance of, its own conclusion at paragraph 43 of its decision, namely that whether the reason is stated as the School's belief as to Ms Shrubsole's state of mind or is stated as her capability, it all comes to the same thing. The ET emphasised, by the underlining referred to at paragraph 7 of this judgment, that all this was:

"... because of her incapability through illness to return to work ...".

It seems to us that once this is recognised then the inevitable and only answer to the question - "was the reason for dismissal related to Ms Shrubsole's disability?" - is in the affirmative.

25. Thus we conclude that the ET misdirected itself as to section 5(1)(a) of the DDA; alternatively that on this issue, the ET reached a decision, which no reasonable tribunal properly directing itself could have reached. Mr Brown submits that we have before us all the material necessary for us to reach our own conclusion on the matter and he asked us to substitute a finding that Ms Shrubsole was dismissed for a reason related to her disability. We accept that submission. We repeat what we said in the preceding paragraph in the context of the perversity issue; it seems to us that the inevitable and only conclusion to be reached from the findings of the ET (and we have in mind particularly paragraphs 17, 18, 19, 36, 38, 43 and 46 of the ET's decision) is that Ms Shrubsole's dismissal was related to her disability. Accordingly we will allow the appeal on this issue and substitute a finding to that effect.
26. It follows from the ET's conclusion as to section 5(1)(a) at paragraph 55 of the ET decision that it never went on to consider the question of justification under section 5(1)(b) of the DDA. Ms Wedderspoon was able to point to the fact that the ET had found that the School was justified in its belief that Ms Shrubsole intended not to return to work. This is not, however, a finding that the dismissal was justified, only that the belief was justified and that is not the same thing. We do not have sufficient material to enable us to decide this issue nor does Mr Brown ask us to do so. He accepts that on this issue the matter must be remitted to the same ET for it to decide whether the dismissal was justified. He submits, however, that the question of justification has a bearing on the third DDA issue, namely whether there has been discrimination by a failure to make adjustments contrary to sections 5(2) and 6 of the DDA. He points out that the Code contemplates a connection between justification and adjustments; paragraph 6.21 of the Code refers to dismissal being justifiable if it is not practicable or reasonable to make any adjustments.
27. The question therefore arises as to whether, as Ms Wedderspoon submits, the ET has already found that it was not reasonable for the School to make any adjustments. The matter, she submitted, was conclusively dealt with by the ET in paragraphs 46 and 54 of its decision; the headmaster was not obliged to change his attitude towards Ms Shrubsole nor should the School be obliged to remove him; neither were adjustments, which could be reasonably required. That being so, she submitted, notwithstanding any errors that there might have been in the ET's decision as to the relationship between the reason for dismissal and Ms Shrubsole's disability, there was no point in any remission because inevitably the end result would be a finding that there were no adjustments, which could reasonably have been made and so the dismissal would be justified.
28. On the question of adjustment(s), Mr Brown argued that the ET's perspective was too narrow. The ET concentrated only on the question of the headmaster adjusting his attitude. This ignored other potential adjustments. Section 6(3) of the DDA gives as an example of adjustment the provision of supervision and this is amplified by Paragraph 4.20 of the Code, which refers to the provision of a support worker or help from a colleague in circumstances where the disability has led to a loss of confidence. This was a similar case to loss of confidence; what was needed here was some intermediary and the ET had erred by not considering anything except the headmaster and whether his attitude could or should be adjusted.
29. On this aspect of the appeal, we accept Mr Brown's submission. We agree that the ET misdirected itself as to the scope of adjustment and focused too narrowly on the headmaster. Accordingly we will also allow the appeal on the issues of justification and adjustment; the case will be remitted to the same ET for it consider whether the School discriminated against Ms Shrubsole because its dismissal of her could not be justified and whether it complied with its duties under section 6 to make reasonable adjustments and, if not, whether that failure to comply could be justified.
30. That leaves only the question as to the award of compensation in respect of unfair dismissal. We will allow the appeal against the finding as to the compensatory award on the basis that the question of the extent of the compensatory award will have to be reconsidered when the ET has decided the issues relating to disability discrimination. In the absence of any finding of disability discrimination there would be nothing wrong with the ET's approach; if there was to be a finding of disability discrimination then the remedies provided for under section 8(2) of the DDA would fall to be considered and the ET would need to ask itself whether, in such circumstances, the approach to compensation would be the same as had been adopted when only the remedies under the Employment Rights Act 1996 were under consideration.