United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GORDON MENZIES (of Counsel) Instructed by: Messrs Whittles Solicitors Pearl Assurance House 23 Princess Street Albert Square Manchester M2 4ER
For the Respondent	MISS RACHEL WEDDERSPOON (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors 4th Floor Brazennose House West Brazennose Street Manchester M2 5AZ

SUMMARY

Disability Discrimination

No error of law in decision by Employment Tribunal that there was (though constructive dismissal) no breach of duty by Respondent employee under s6 of the Disability Discrimination Act in relation to making adjustments prior to receipt of medical report. But remission (to be considered by same Tribunal together with remedies hearing for CD) because failure to address expressly (by reference to Code para 4.62) the period after receipt of medical report and prior to A's resignation.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This is an appeal by Mrs McCarthy (“the Applicant”) from the unanimous decision of the Tribunal at Liverpool, after a hearing in July 2003, in Reasons handed down on 30 October 2003, that, although she was unfairly constructively dismissed, she was not entitled to succeed in respect of her claim that the Respondent failed to make reasonable adjustments within section 6 of the Disability Discrimination Act 1995.
2. The relevant question for the Tribunal so far as section 6 is concerned is most concisely contained in section 6 (6) of the Disability Discrimination Act 1995, which says as follows:

“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 -

…

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

3. It is only if the Tribunal is satisfied that the employer could reasonably be expected to know of the disability that the question of breach of the obligation in section 6 to make reasonable adjustments, in relation to matters which place a disabled person at a substantial disadvantage in comparison with persons who are not disabled, arises.
4. Mr Menzies, who appears today for the Applicant, has put various authorities before us, but we are satisfied that we do not need to look at those authorities, simply by way, as they are, of examples, because of the clear terms of s6(6), which gives us, and gave the Tribunal, the right question to ask.
5. The case here primarily, it appears to us, related to constructive dismissal, because the Applicant resigned on 23 September 2002 from her employment by the Respondent solicitors, and indeed the Tribunal concluded that that resignation amounted to a constructive dismissal, and will be awarding compensation at a remedies hearing to be fixed. The letter, dated 23 September, to Nicola Graham, the Human Resources Officer of the Respondent firm, began:

“I am disappointed that, although I have received a letter from you relating to the firm's permanent health scheme, this did not refer to my last letter to you of 13^th September and I have received no separate response to that letter. I am aware from Dr McQuire that he sent a copy of his report to you on 13^th September 2002 and I would have expected a reply to my letter before now, particularly given that I was asking for a grievance hearing to take place prior to your suggested dated of 1^st October 2002.

Although my health has suffered over the last few months and I believe that this has been as a direct result of what has happened to me at work, I have for a long time hoped my work situation could be resolved and that I would be able to return, and my psychologist told me that such a return to work would help my recovery. However, as time has progressed I have become increasingly disillusioned with the way in which my grievance and my illness has been handled. There have been a series of delays, you continue to refuse to allow my psychologist to attend with me for support at any potential grievance hearing and I no longer have any confidence in you as employers.

Please accept this letter as notice of my resignation with immediate effect.”

6. The Tribunal concluded in paragraphs 12 to 16.1 of its Decision that the Respondent was in breach of the implied term of trust and confidence in regard to its treatment of the Applicant.
7. However, as was necessary, it gave separate consideration to the question of disability discrimination. It dealt with its conclusions in that regard in paragraphs 10 and 11 of its Decision, and it referred correctly to paragraphs 4.61 and 4.64 of the Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability (1996).
8. The facts were, so far as Dr McQuire is concerned, to whom reference was made in the resignation letter, which we have read, that the Applicant had gone off work sick on 23 April 2002, and never thereafter returned to work. The doctor's note that she produced, according to paragraph 6.7 of the Decision, stipulated nervous debility and the Applicant informed Ms Graham among other things that she was suffering from anxiety, stress and depression.
9. On 11 June 2002 she presented a comprehensive Stage 1 grievance raising 20 complaints, and she stated that she was taking antidepressants, was suffering from panic attacks and that she was being helped by a psychologist for her anxiety and stress, who was willing to provide a report on her condition. The Respondent agreed to activate the grievance procedure and that was done perfectly properly in the days that thereafter followed.
10. The Tribunal found in paragraph 6.10 that the Respondent requested the Applicant's consent to obtain a medical report from the psychologist to whom she had referred on 4 July and the Applicant's response on 18 July was to request that there should be a meeting with her psychologist in attendance to give her support. She expressed the view on 18 July that she was not satisfied with some of the responses given to her, and that she would like to bring a companion to the meeting, as she put it, her psychologist Dr McQuire.
11. The Respondent's response was that it was not part of the grievance procedure at that stage to permit attendance by the psychologist at the meeting for that purpose, and the Applicant confirmed her desire for a meeting and repeated her request for her psychologist to attend. Ms Graham's response was to decline to permit the psychologist, but to offer a meeting either at the office or at an alternative site; and that second request was acceptable to the Respondent, but she repeated that she wanted Dr McQuire for emotional support, not as a representative. Ms Graham's response, according to paragraph 6.14 of the Decision, was that Dr McQuire could accompany the Applicant to the chosen venue but could not attend the actual meeting in the light of the grievance procedure.
12. Then, at paragraph 6.15 the Tribunal records that on 13 September, by a letter which is in our bundle, the Applicant, as the Tribunal put it, 'in exasperation' again requested Dr McQuire's attendance at the meeting and invited the Respondent to reconsider her request once it had received his report. Dr McQuire had told the Applicant that he was going to deliver his report to the Respondent on that day.
13. The letter of 13 September reads as follows, after acknowledging the 4 September letter:

“I am extremely distressed to note that you will not allow me to bring Dr McQuire into the meeting with me. I do not see how a constructive meeting can take place without his presence and I do not understand why you are unwilling to make this alteration to the company policy on this occasion. It would certainly not satisfy my need for emotional support for him to be waiting outside the venue whilst the meeting took place…

As you were aware I had a meeting with Dr McQuire yesterday, and no doubt he will shortly be forwarding medical report to you. In our correspondence to date, although I have advised you of my symptoms you do not appear to me to have acknowledged the seriousness of my illness. Once you have received Dr McQuire's report, I would ask you to reconsider my request and to organise a meeting with Mr McQuire present at a neutral venue on the next possible date.”

It does not appear whether Dr McQuire in fact posted the report on that day, but he certainly posted it shortly thereafter and it is unchallenged evidence that it was received by Ms Graham on behalf of the Respondents on 20 September.

14. The Tribunal records in paragraph 6.15 that the Head of Human Resources, a Mrs Capstick, was not in the office and it was not possible for her to consider the report until after 23 September. In fact she considered it on 25 September, when Ms Graham immediately sent a letter to say that she had received Dr McQuire's medical report, and did agree to 'deviate', as it was put, from the Respondent's policy, and allow Dr McQuire to attend any grievance hearing. But, of course, by that stage, the Applicant had already sent the letter of resignation, on 23 September, and although in that letter of 25 September the Respondents asked the Applicant to reconsider her position she did not, and stood by her resignation and, as we have indicated, it was found to be a constructive dismissal.
15. It is apparent, as we have indicated, that once the Respondent did, through Ms Capstick, peruse the report, it agreed to amend the policy. At paragraph 6.18 the Tribunal records:

“Ms Graham replied on 25 September 2002, made her apologies, and gave her excuses for her failure to respond to the applicant's letter of 13 September 2002, which we do not doubt are true; having received Dr McQuire's report she offered to permit his attendance at a meeting… To quote from the applicant's evidence “that was too little too late”. The offer was rejected by her solicitors.”

16. The basis of Mr Menzies' appeal, it seems to us, fell into two parts. The first was a complaint in respect of the Tribunal's findings in relation to the period prior to the receipt of the report by the Respondents, as is clear on 20 September. The second relates to the period after 20 September and necessarily framed now not by the period to 25 September when the agreement to amend the policy was in fact given, but to 23 September when the Applicant in fact resigned.
17. Paragraph 11 of the Tribunal's conclusions reads as follows, after it had set out the relevant paragraphs (4.61 and 4.64) of the Code of Practice in paragraph 10:

“11 The respondent's first and primary contention is that the section 6 duty did not arise until they had received Dr McQuire's report, and so it is important for us to consider the information before them at the material times they were deciding whether or not he should attend a grievance meeting. On 11^th June 2002 the applicant described her condition. She made reference to Dr McQuire and invited the Respondent to seek a report. Her G.P. had been providing sick notes which said stress, anxiety, nervous debility possibly depression. None of those factors are of themselves mental impairments within the definition in the Act. It was therefore reasonable of the Respondent to seek medical advice on the issue. They requested the applicant's consent on 4^th July: they received it on 18 July: they commissioned a report on 7^th August and it had not been considered by an appropriate person – head of Human Resources – before the applicant resigned. We have had to ask ourselves whether from the information before the respondent the employer could reasonably be expected to know of the applicant's disability. Stress, anxiety, depression are not necessarily mental impairments within the Act. It was reasonable for the respondent to await receipt of Dr McQuire's report before considering whether to make an exception to their grievance procedure by permitting Dr McQuire to attend. In these circumstances the duty had not arisen before the applicant terminated her employment.”

18. That paragraph does not expressly address what we have described earlier as the two different questions now raised by Mr Menzies, broken up by the date of 20 September when the report was in fact received. Indeed, it does not refer to the actual date of receipt on 20 September. It appears, as indeed Ms Wedderspoon for the Respondents submits with force, to have at any rate implicitly concluded that it was acceptable for the Respondent to wait until the Head of Human Resources addressed the position, and to take the date in question as being the date when she read the report, and of course immediately commissioned Ms Graham to send the letter she did on 25 September, which was sadly too late, so far as avoiding a resignation was concerned.
19. We are entirely satisfied that, so far as Mr Menzies complains of the Tribunal's decision in relation to the period before the receipt by the Respondents, he has no arguable case that there has been an error of law. The Tribunal does not indeed address what appears to us to be the most significant point in favour of the Respondent, and that is that the very letter of 13 September sent by the Applicant specifically asks the Respondent to reconsider the request once it had received the report, which appears to us almost to rule out any suggestion that there could be a breach of the obligation under section 6 prior to the report being received. But in any event, quite apart from that, the Tribunal makes forceful and persuasive findings of fact that the Respondent was not, within s6(6) of the Act, to be reasonably expected to know of the existence of the disability prior to receipt of the report, never mind being obliged to take any steps by way of adjustment.
20. We turn then to part 2 of Mr Menzies' submissions, which relates to the period after receipt, which is not, of course, the date when Ms Capstick received the report, but when the Respondent received it. In this regard the Tribunal has not addressed a further paragraph of the Code of Practice, additional to those cited by it in paragraph 10 of its Decision, which reads as follows:

“4.62 If an employer's agent or employee (for example, an occupational health officer, personnel officer or line manager) knows in that capacity of an employee's disability, then the employer cannot claim that he does not know of that person's disability, and that he is therefore excluded from the obligation to make a reasonable adjustment.”

21. It is not clear whether the Tribunal considered that question, and decided that in the circumstances Ms Graham was not such an employee as to fall within 4.62 as to fix the employer with the necessary knowledge of the contents of the report, or whether it found that in fact she did have the knowledge, but that it was reasonable to wait for any steps to be taken in pursuance of that knowledge until 25 September, i.e. after the resignation. We think it unlikely, if the Tribunal had cast its mind in that regard, that it would have been able to reach a conclusion that Ms Graham was not a relevant employee such as a personnel officer, as referred to in 4.62; and, although of course the Code is not wholly binding, in the sense of requiring a Tribunal to reach a mandatory conclusion, in the light of that Code it appears almost impossible to us but that the Tribunal ought to have concluded that as at 20 September, the admitted date of receipt by Ms Graham, she, as a relevant employee, thus had the knowledge which led Ms Capstick to instruct her to write the letter five days later; unless of course there is some suggestion that the report (the contents of which we have not considered) was such that it required a more senior or discerning mind than Ms Graham's to understand its contents. But that does not appear to us to arise on the facts of this case, certainly as presently found by the Tribunal.
22. If, therefore, the date of receipt was on 20 September, and not on 25 September, then the Tribunal does not, in our judgment, appear to have addressed the next question which is whether, given knowledge on 20 September, the Respondent was in breach of its duty, as it was expressly found not to be prior to 20 September, in not making reasonable adjustments after 20 September, and prior to 23 September, when the Applicant resigned. That is a very narrow period of time, and it may well be that the Tribunal might have concluded that the Respondent was not in breach of its duty. On the other hand, it might have been influenced by the fact that the letter of 20 September made no reference to receipt of the report. On the yet further hand it may be that that letter of 20 September was written by Ms Graham before the post arrived on 20 September or before she had seen the report, which arrived on that day.
23. But this is a very short area of fact which appears to us to need consideration by the Tribunal. It will first of all need to decide definitively whether the report within para 4.62 was received for relevant purposes by the employer on that date, and, assuming it decides that in those circumstances the Respondent must be taken to have been apprised of the knowledge of the contents of the report on 20 September, then it must ask the question as to whether, in those circumstances, between 20 and 23 September there was or was not a breach of the duty under s6.
24. We are satisfied that this same Tribunal which decided all these facts so clearly and concisely should be seised of this one outstanding question on liability, and Mr Menzies and Ms Wedderspoon have neither of them sought to persuade us to the contrary. That has the added advantage that in that way no further costs or time will be wasted, because this Tribunal in any event has reserved the question of remedy and therefore the matter will require to go back to this Tribunal for that purpose in any event.
25. We therefore direct that the appeal be allowed to the extent that the issue as to whether there was a breach of s6 between 20 and 23 September should be remitted to the same Employment Tribunal to be decided, and that it should decide that matter at the same time as the question of remedy in relation to constructive dismissal and, if liability for the disability discrimination is established on the remission, then it can also decide the question of remedy in that regard at the same hearing.