United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellants	Mr C MacNeill, Advocate Instructed by- BT Group Legal Alexander Bain House 15 York Street GLASGOW G2 8LA
For the Respondent	Mr A Tarver, Representative Of- Communication Workers Union West of Scotland Clerical Branch 189 Dial House Bothwell Street GLASGOW G3 8UE

SUMMARY
UNFAIR DISMISSAL
Unfair dismissal – reasonableness of dismissal
DDA
DDA 1995 - Reasonable adjustment


 


LORD JOHNSTON:

1. This is an appeal from the Employment Tribunal sitting in Glasgow in respect of two findings, firstly, that the (applicant) respondent employee had been unfairly dismissed by the respondents, and, secondly, that the respondents had not discriminated against her, contrary to the Disability Discrimination Act 1995, in effecting that dismissal.
2. The background to the matter is that the employee became ill, suffering from a number of mental conditions, not least, agoraphobia, which, according to the undisputed facts at the time of her dismissal, prevented her from leaving home. She, thus, had not attended for work and had not done so for some time.
3. The appellants dealt with her in a sensitive and delicate way and endeavoured to solve the problem at a number of meetings. There is some dispute on the medical evidence as to the extent of the overall disabilities which the applicant was suffering beyond agoraphobia, but, in any event, the appellants finally determined in May 2003 that she would require to be dismissed and this was plainly related to her medical condition. Accordingly, the cause of dismissal was not in doubt.
4. For the purpose of this appeal the crucial part upon the Tribunal's decision is as follows:-

"Put briefly, it was the applicant's position that she was suffering from agoraphobia. The reports before the respondents made it clear that one barrier to resumption of employment on her part was the fact that she could not leave her house. The respondents should have had in mind the ease with which they could allow the applicant homework and ought to have considered it. The respondents had not acted reasonably in that the search for alternative employment had not been adequate.

We ultimately took the view that the respondents ought to have had in mind the possibility that the applicant might be fit to carry out home work. It is abundantly clear from the medical evidence in the possession of the respondents that a severe problem facing the applicant was a near total inability to leave her home. Bearing in mind that thousands of the respondents' employees work from home, and bearing in mind that it had been expressly stated that at least one of the applicant's problems related to the fact that she could not leave home, the tribunal took the view that the option of allowing the applicant to work from home was one that ought to have been explored by the respondents before taking the decision to dismiss her. It is true that the medical advisers suggest that the applicant was unfit for any form of work and that a literal reading of the advice tendered by them would suggest that the applicant was unfit for any form of work including - presumably - homework. Before accepting this advice at its face value, however, the tribunal took the view that a reasonable employer would not have failed to draw the attention of the medical adviser to the possibility of homework and would have given him details of the work that the applicant would have been expected to do, before taking the decision to dismiss. The tribunal accordingly reached the view that the dismissal was unfair.

It is fair to say, however, that the tribunal, particularly the chairman, found this case especially difficult. The applicant stated (and we accepted) that she was not aware of the possibility of working from home. That, no doubt, explains her failure to raise the matter at the meeting of 14 May. The same, however, cannot be said about the applicant's representative. He was perfectly well aware of the possibility of home work, but chose not to raise the issue at the hearing in May. Given that the applicant was not aware of the possibility of working from home, the conclusion must be that the trade union official did not discuss it with the applicant - an indication either that home working was truly not regarded as practical by him at that stage, or that, for tactical reasons he chose not to mention the possibility. Mr Muir's motives for not mentioning the matter were not explored in evidence and probably have no significance. The point is that; being aware of the possibility of homework, he did not mention it, and the chairman had considerable doubts about whether the dismissal was unfair. The careful arguments of the wing members, however, have persuaded the chairman that the dismissal was unfair. They point to the fact that the respondents are a large organisation, that the respondents employ thousands of people doing homework, and that, by definition, the applicant was suffering from a condition which prevented her from leaving home. The respondents must have been aware that an obstacle to the applicant's return to work was the fact that she had to leave home to do so Had there been any detailed consideration of the matter, the possibility of home working would have spontaneously occurred to any senior member of management acquainted with the respondents' working practices. (The foregoing statement is not a criticism of the said Mount. The tribunal accepted that she personally had virtually no experience of home working. It is clear that she treated applicant with great sensitivity and sympathy. She delayed taking action long after it would have been reasonable for her to commence a process of dismissing the applicant.) In any event the possibility of home working had been raised at the appeal stage and there could be no excuse for failing to give the matter detailed consideration then."

5. Mr MacNeill, Advocate, appearing for the appellants, argued, in effect, that the decision of this Tribunal was based on the alleged failure on the part of the employer to consider, investigate or offer homework to the respondent thus rendering the dismissal unfair inasmuch as a reasonable employer would not have so acted. Mr MacNeill's simple submission, in this respect, was the Tribunal had not considered the reasonableness of the employer's action but rather substituted its own view of what a reasonable employer might have done.
6. Mr Tarver, appearing for the respondent, submitted that the Tribunal had reached a correct decision upon the evidence, not least, having regard to the appellant's own procedures which involved homeworking, apparently, in respect of over 5,000 people. Accordingly, the Tribunal were entitled to conclude, that by not investigating that matter, the employer had not gone far enough before effecting dismissal, and, accordingly, acted unreasonably in the sense that dismissal was not a reasonable response at the time that it was effected.
7. We have no hesitation in concluding that the Tribunal reached a decision they were entitled to reach upon the evidence and were not substituting their own view. As has been said on a number of occasions, this is necessary for the Tribunal to express an opinion, which must be its own, as to the reasonableness of the employer's actions, and, while they must not place themselves in the position of the employer and declare what they would have done, here, the Tribunal have directly placed themselves in the position of the employer, as in respect of what was actually done, and then criticised it as being inadequate. The conclusion, therefore, in our opinion, of unfair dismissal is therefore warranted.
8. The other aspect of the case relating to disability discrimination raises more difficult questions.
9. The relevant legislation is as follows:-

"(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 him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified.

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

(a) he fails to comply with the 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) (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 purposes 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.

(6)………………………………………"

Section 6 (so far as relevant) provides as follows -

"(1) Where -

(a) any arrangements made by or on behalf of an employer, or

(b) (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)- Sub Section (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 under subsection

(1)-

…..

(c) transferring him to fill an existing vacancy;

…..

(e) assigning him to a different place of work;

(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 this step that would prevent the effect in question;

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

(5)……

(6) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know -

(a) in the case applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment;

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)."

10. The conclusions of the Employment Tribunal are not easy to follow in this respect, but, in summary, are to be found on page 12 as follows:-

"Against that background, we examined the two reports produced to us on the final date of the hearing, B1 and R118. We did not find either of these reports of great assistance. The report from the applicant's general practitioner is not detailed and gives no particulars of her condition at the relevant time. The report does not address the question whether the applicant would have been able to work, had she been able to work from home. That report stops short of saying that the applicant would have worked, and merely records that she would have considered the possibility of working from home, had that been offered to her. The report from the Occupational Health Service somewhat surprisingly does not say in terms that the applicant could not have done homework, though it could be argued that such a conclusion is necessarily implicit in the wording of the letter. The tone of the letter is somewhat defensive.

Bearing in mind all these factors, including the evidence of the applicant and such medical evidence as we have, we are not persuaded that any arrangement whereby the applicant required to work at her employer's place of business placed her at a substantial disadvantage. We are satisfied that the applicant suffered from a disabling condition only one symptom of which was an inability or fear of leaving home. There is some reason to believe that that condition would have disabled her anyway, even if she had not suffered from agoraphobia. Accordingly, without considering the terms of section 6 (6) we find that the respondents were not under section 6 duty. It follows that the applicant's claim that the respondents discriminated against her must fail."

11. The submissions on behalf of the respondent by way of cross-appeal in this respect are as follows:-

"a) Having accepted as the grounds for their finding of unfair dismissal that BT should have investigated the possibility of home working, the tribunal erred in not finding that BT also discriminated against Lynn Pelling, contrary to the 1995 DDA. The tribunal erred in law as the absence of such investigation meant of itself that a reasonable adjustment under S6 of the DDA - of home working, had not been considered. Lynn's disability was the cause of the requirement to consider homeworking, and it was an error for the tribunal to detach the finding of BT's unfair dismissal for want of an investigation into homeworking, from the duty on BT to investigate adjustments under the DDA.

b) The tribunal should have ruled that BT's insufficient explanation of their failure to investigate homeworking amounted to discrimination contrary to the 1995 DDA. The EAT held in Rowden v Dutton Gregory 2002 ICR 971 that if a Tribunal is not satisfied with an employer's reasons for its detrimental treatment of a disabled employee, it should draw the inference that that treatment was for a reason related to the employee's disability, and is not justified.

c) Having correctly ruled that the dismissal was unfair for want of an investigation into homeworking, the tribunal should have ruled that BT unfairly discriminated against Lynn Pelling as the duty to investigate this is on the employer. See Cosgrove v Caesar & Howie, EAT 2001 IRLR 653, which ruled that the duty under the DDA to consider adjustments and medical opinion is solely on the employer. So the tribunal erred in considering the behaviour of Lynn Pelling and her representatives as a factor in refusing unfair discrimination under the DDA In their Extended Reasons they wrote that Lynn Pelling and/or her union representatives should have both asked earlier than they did about homeworking, and also demonstrated that she might have been able to work from home.

d) The tribunal should not have tried to establish whether Lynn could have done homeworking. Wilding v BT, Court of Appeal 2002 EWCA Civ 349, ruled that a tribunal does not have to decide a) if an adjustment would have worked, or b) if medical opinion would have supported an adjustment, but simply that to comply with the DDA there is a duty on the employer to investigate a) and b).

e) The tribunal should have ruled in favour of unfair discrimination under the DDA because BT failed to secure adequate medical opinion. The need under the DDA for disability cases to involve medical advice is detailed in the Employer's Code of Practice, and the requirement on a tribunal to consider questions about medical advice is made clear in 1999 EAT case London Borough of Hillingdon v Morgan. In addition to the Wilding case mentioned, 2002 EAT case Surrey Police v Marshall, IRLR 843, ruled that failure by the employer to obtain suitably qualified and expert medical opinion about an employee covered by the DDA, and not considering medical advice which is available, are grounds to decide that unfair discrimination took place, contrary to the DDA before dismissing Lynn, BT did not 'expedite a specialist opinion' as their own medical officers had advised.

f) The tribunal did not sufficiently take into account the above factors when considering if Lynn suffered substantial disadvantage, in terms of the DDA S6 duties. The above points were all made at the tribunal, by the applicant's representative, in seeking to establish these factors caused Lynn to be unfairly discriminated against due to her disability. Instead they erred in apparently basing most of their reasoning of the discrimination aspects on the narrow grounds of testing the medical aspects of the requirement for her to work at the employer's place of work, instead of homeworking, and whether this placed Lynn at substantial disadvantage. In measuring this disadvantage they erred in their approach to the medical aspects of the case, and the conclusions they drew. Firstly in going too far in supposition about her condition, to reach a conclusion about its extent that they were not entitled or qualified to do. Secondly failing to adequately explain how their interpretation of her condition leads to the conclusion that there was no substantial disadvantage. Thirdly, without adequate explanation, justification or qualification, seemingly wishing to decide on Lynn's condition in the context of homeworking or working from the employer's place of work, then seemingly deciding that her condition did not have sufficient relevance in. this context, then ruling out disability discrimination on these grounds alone.

g) The basis for the tribunal following the track described in f) is Morse v Wiltshire County Council 1998 IRLR 352, and the statement leading on from the reference to Morse in the Extended Reasons document that the onus is on the applicant to prove substantial disadvantage to succeed under the DDA. This the applicant's representative did by arguing that the substantial disadvantage came from failure to investigate homeworking, and the subsequent loss of Lynn's job due to the employer's requirement for Lynn to work at a BT workplace, as this rendered her incapable of continuing in BT employment due to her disability, whereas an able bodied person could work at a BT workplace. Through lack of investigation of homeworking BT could not show whether the dismissal was justified (as the tribunal themselves agreed).

But in terms of which side onus of proof lies, the reporting of the Morse case makes clear also that tribunals must themselves consider whether employer behaviour in failing to comply with the DDA is unreasonable enough to substantially disadvantage the employee. Onus is not purely on the applicant. Also cases such as EAT 21/5/02 HM Prison Service v Beart make clear that the onus is on the employer to justify their discriminatory actions. The tribunal did not measure in terms of the DDA how substantial was the disadvantage caused by all aspects unjustified discrimination by BT, including the contribution of such discrimination towards Lynn's dismissal.

h) The tribunal should not have decided, as it seems to have in the lines following 46-48 of page 10 of the Extended Reasons document, that it could not be shown that a person suffering from a condition covered by the DDA which renders them unable to go out of the house is at a substantial disadvantage to an able bodied person who can work at a BT place of work."

12. In response, Mr MacNeill valiantly sought to defend the Tribunal's decision upon the basis that what the Tribunal had effectively determined upon the evidence, was that the various medical conditions from which the respondent suffered, did not result in her being in any form of substantial disadvantage in terms of section 6 discrimination, he recognising that in respect of the unfavourable treatment aspect, the question was an issue as to whether or not the dismissal, which was the relevant treatment, was justified.
13. With respect to Mr MacNeill's approach, we consider that the Tribunal has hopelessly misdirected itself in this respect, not least, by failing to appreciate the connection between the band of reasonable responses issue, in relation to unfair dismissal, and, the issue of reasonable adjustment in terms of section 5(2) and 6 of the Disability Discrimination Act.
14. It seems to us, that the less favourable treatment, being of course the dismissal, can only be justified if it can be shown that it was unconnected with the medical condition, or, unavoidable, (Jones v Post Office [2001] IRLR 384). It again, seems to us, that is very difficult to determine having regard to the fact that the reason for dismissal was the inability on the part of the respondent to go to her workplace because of her medical condition. Putting aside, however, for the moment, the question of justification in that respect, what seems to us to be critical, is that by being unable to leave the house to go to work, the respondent was plainly, in our opinion, at a disadvantaged state with regard to the requirement of the employer to work only at the workplace. Again, therefore, the case turns in this respect on the failure on the part of the employer to offer a reasonable adjustment, namely, investigation and possible offer of homework. The matter, therefore, turned on precisely the same issue that determined the question of unfair dismissal and must reach the same conclusion.
15. We consider that this is the only conclusion that is reasonably open to the Tribunal on this aspect of the case, and, accordingly, we are in a position to substitute our own view for that of the Tribunal, which, in any event, has been shown to have misdirected itself in this respect.
16. In these circumstances the appeal will refused and the cross-appeal will be allowed which will have the effect of quashing the decision in relation to disability discrimination and substituting a finding that the respondent did discriminate against the applicant contrary to the Disability Discrimination Act 1995, section 4.
17. There remains the question of remedy, and, accordingly, the case is remitted back to the same Tribunal for consideration of that question.