United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr G F Bathgate, Solicitor Of- Messrs Allan McDougall & Co Solicitors 3 Coates Crescent EDINBURGH EH3 7AL
For the Respondents	Ms C Carr, Solicitor Of- Messrs Brechin Tindall Oatts Solicitors 48 St Vincent Street GLASGOW G2 5HS

SUMMARY
DISABILITY DISCRIMINATION

Disability discrimination: reasonable adjustments


 


LORD JOHNSTON:

1. This is an appeal by the employee against a finding of the Employment Tribunal sitting in Edinburgh to the effect that she had not been subject to disability discrimination by reason of the failure of the respondents to make adjustments to her working arrangements.
2. The background to the matter is that the appellant worked as a support worker, which, in turn, led to a depressive illness, complicated by high blood pressure, particularly stress-related with regard to sleep-over duties.
3. The Tribunal records that the medical evidence available from the General Practitioner supported the view that the lady was unfit for the duties of support worker which included sleep-overs, and, that furthermore, she had suffered from stress-related problems following an assault in the course of her employment. She went off sick for a considerable period of time and the employer continued to question the medical position. The conclusion of the Tribunal is shortly stated as follows:-

"We were referred to the cases of Morse v Wiltshire County Council [1998] IRLR 352, British Gas Services Ltd v McCaull [2001] IRLR 60 and Cosgrove v Caesar & Howie [2001] IRLR 653. These make it clear that where the employer is dealing with a disabled person, who is placed at a substantial disadvantage by arrangements made by the employer in this case in the arrangements on which the employment is offered, the duty places the onus on the employer to give active consideration to the steps which might be taken by him. It is not sufficient to rely on the inability of the disabled person or his medical adviser to advance suggestions of steps which might be taken. It may well be that there are no steps which can be taken, but that judgment must be arrived at after active consideration by the employer. Following Cosgrove v Caesar & Howie the employer cannot simply rely on an indication that the employee is unfit and there is no prognosis of when she might be able to return to work.

We are however satisfied that in this case, given the state of the applicant's health, notwithstanding that things were beginning to improve, steps which the respondents might have taken would not have been effective in overcoming the disadvantageous effect of the very demanding requirement of support worker, which was the only form of employment which the respondents were in a position to offer."

4. Both parties referred us to two decisions of the EAT which were said to be contradictory, namely, British Gas Services Ltd v McCaull [2001] IRLR 60 and Mid-Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566.
5. The contradiction or inconsistency was said to arise from the fact that in the former case, the Tribunal held, in the context of making reasonable adjustments, that the proper approach for the Tribunal to take was an objective one based on what the employer did or had not done. In the latter case, the Tribunal held that the failure on the part of an employer to consider what adjustments might be made in the context of section 6 of the legislation, was in itself a breach and such should have been the approach of the Tribunal in this case.
6. For the record, it is clear the claim is brought in terms of section 5(2), and, consequently, section 6 of the legislation.
7. We are not necessarily satisfied that the two cases to which we are referred are necessarily inconsistent, although they do reflect a different approach. For our part, we consider it is impossible to separate out the duty to make adjustments from the implicit duty in that context to consider what adjustments could be taken, even if none are taken. To that extent, therefore, we would favour the approach of Mr Bathgate proceeding down the line of Mid-Staffordshire. On the other hand, it is equally clear from the McCaull case, that if the evidence discloses that there was nothing that the employer actually could do in the result, therefore, there was no discrimination.
8. We are satisfied in addition, however, that the employer's conduct must be looked at at the time when the question is, or should be considered, in relation to adjustments, and not for the purposes establishing a breach at the time of the Tribunal hearing.
9. However, what matters in this present case, is the Tribunal's finding in fact that at the material time the appellant's state of health was such that she was not fit to do the only job that the employer was able to offer. It follows that whatever approach is adopted in considering the legislation, in the final analysis, whether the Mid-Staffordshire case approach is followed, or that of McCaull, the conclusion must be as stated in McCaull:-

"An employer may have taken no steps but if it could not reasonably have taken any then he has a defence to have claimed discrimination being brought against it."

10. That is the position that we consider the Tribunal has reached in the present case, and, accordingly, we conclude that it was entitled to hold that there had been no discrimination in terms of the legislation.
11. In these circumstances the appeal is dismissed.