United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P DRAYCOTT (of Counsel) Instructed by: Messrs Thompsons Solicitors Acresfield 8 Exchange Street Manchester M2 7HA
For the Respondent	MR N GRUNDY (of Counsel) Instructed by: Astrazeneca UK Ltd Legal Services Alderley House Alderley Park Macclesfield Cheshire SK10 4TF

SUMMARY

Disability Discrimination

Insufficiency of reasons for conclusion that dismissal was justified under section 5 (1) (b) of the Disability Discrimination Act 1995. Whether employer was in breach of duty to assess Appellant as part of duty under section 6 DDA. Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 556 considered and distinguished.


 


THE HONOURABLE MR JUSTICE BEATSON

1. The Employment Tribunal at Manchester held that Mr Groves was unfairly dismissed but that if he had been treated fairly he would have been dismissed 6 months later than the effective date of termination of his employment in any event and any compensation payable to the Applicant should be assessed accordingly. The Tribunal dismissed his complaint that he suffered discrimination on the grounds of his disability as not well-founded.
2. Mr Groves appeals submitting that the Tribunal erred in:

(1) rejecting his reasonable adjustments claim under the Disability Discrimination Act 1995;

(2) rejecting the disability claim itself; and

(3) limiting the Appellant's compensatory period to 6 months.

3. The facts of the case before the Tribunal are as follows. On 17 September 2001 Mr Groves injured his back as a result of an accident at AstraZeneca's workplace. He was signed off for sick leave and has not returned to work since.
4. On 4 March 2002 he was informed by his consultant that the results of an MRI scan showed that a course of physiotherapy and epidural injections would be appropriate for him since his condition was less serious than previously thought and surgery would not be required.
5. On 11 March 2002 there was a medical assessment by the Respondent's Occupational Health Officer, Dr Shackleton. This stated that it was difficult to be certain about the prognosis, the best thing would be for Mr Groves to obtain a second opinion from a different surgeon and that it would assist the management of the situation if the Respondent was prepared to pay for such examination and report.
6. On 13 March Mr Groves was given a letter by the Respondent stating that it was their intention to issue 12 week's notice of termination of his employment on 30 April 2002 if he had not returned to work by that date. On 22 March Mr Groves' manager, Mr Jarvis, in an internal email exchange, referred to Mr Groves not requiring a taxi to go to his appointment with Mr Shackleford, the Consultant to whom he had been referred, but that he would make his own way in his car.
7. On 25 March Mr Groves had his appointment with Mr Shackleford who reported inter alia that Mr Groves had a major problem of constant low back pain, right leg pain and the pain was increased with standing, walking, lifting, bending, driving for more than 15 minutes. Mr Shackleford concluded that:

"…with a lot of encouragement, this gentleman could get fit enough to return to the workplace but the whole situation at work is obviously very difficult at present and is quite adversarial."

8. On 17 April Dr Shackleton asked Mr Shackleford to address the issue of prognosis and on 22 April Mr Groves started his physiotherapy at Leighton hospital. On 30 April the Respondent handed the Appellant a letter confirming his dismissal on the grounds of capability. There was an appeal by the Appellant but the appeal was rejected on 12 June 2002. The Appellant had received his first epidural injection on 10 May 2002.
9. On 12 June 2002 Mr Shackleford produced his supplementary report dealing with the issue of prognosis stating that:

"…he could make a good recovery, regain his confidence and return to work. With this process even after injections is still likely to take in order of three months."

He also stated that:

"The longer he is on a waiting list, the longer he is out of work, the less likely his chance of returning to his former employment."

Dr Shackleton informed the Respondent of this prognosis.

10. Those are the facts that came before the Employment Tribunal, which heard the claim on 7 and 8 July and on 17 and 18 November 2003 when it delivered its Decision.
11. Mr Draycott appeared on behalf of Mr Groves. Mr Grundy appeared on behalf of AstraZeneca. We will deal with each of the three grounds of appeal and the response to them in turn.

The Reasonable Adjustments Appeal

12. By section 6 (1) of the Disability Discrimination Act 1995:

"(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."

13. The Tribunal dealt with this issue at paragraphs 55 and 56.

"55 The parties agree and the Tribunal accepts that the applicant was, at the relevant time, a disabled person for the purposes of the DDA. Because of his disability, the applicant was at a substantial disadvantage in comparison with persons who are not disabled so that the respondent owed a duty to the applicant in accordance with subsections 6(1) and (2) of the DDA. The Tribunal therefore considered the steps that the respondent took to determine whether the respondent complied with its duty under section 6(1) of the DDA. In doing so, the Tribunal had regard to the matters set out in subsection 6(4) of the DDA and the related Code of Practice.

56. In relation to the alleged acts of discrimination during the applicant's employment with the respondent, these related to the failure of the respondent to make reasonable adjustments to enable the applicant's return to work or to continue in employment in any event. The respondent maintained contact with the applicant during his absence although these contacts were not always appreciated by the applicant. The respondent was concerned to ascertain the applicant's medical condition and the prospects for his return to work. Transport to and from meetings with the respondent's doctor were arranged by the respondent as the applicant had difficulty in travelling. However, it was not presented with any medical evidence to suggest that the applicant was fit for work whilst still in the employment of the respondent or the type of work that he might have been able to undertake if he had subsequently been fit to undertake any work. There were references to the possibility of the applicant working from home but these were not supported by medical evidence. In any event, the type of work that the applicant might have undertaken would have required regular visits to the Macclesfield site to check on processes and the procedures that were being followed. In these circumstances, the Tribunal did not consider that there was any adjustment that could be considered that could enable the applicant to undertake work of any type in any location. The Tribunal therefore finds that the respondent did not fail to comply with its duty under Section 6 of the DDA."

14. That conclusion was made after a recitation in the factual section of the decision. Paragraph 26 states:

"26. The applicant saw Dr Shackleton on 8 March, 2002, and they discussed the possibility of the applicant returning to work on reduced hours. The applicant believed that he could work at a computer but Dr Shackleton did not accept this and informed Mr Jarvis that the applicant was "unfit for any form of employment". Dr Shackleton suggested that a further specialist option might be helpful. The applicant quoted Dr Shackleton as referring to him as being 'useless' in the context of his ability to work and the applicant took this to mean that Dr Shackleton did not consider that he was able to undertake any form of work."

15. Mr Draycott submits that this conclusion of the Tribunal is flawed. First, the Respondent did not have available to it a prognosis as to the Appellant's condition. Secondly, any assessment was made before treatment which only started on 22 April, after the notice to quit. Thirdly, there had been no risk assessment.
16. Mr Draycott relied on the decision in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566. This Tribunal held (paragraph 15) that the Employment Tribunal had not fallen into error in concluding that the employer in that case needed to get a proper assessment of the employee's condition and prognosis, the effect of her disability on her, the effect of her disability to perform the duties of the post and the effect of the physical features of her workplace on her and her ability to perform the duties of her post, and the steps which might be taken to reduce or remove the disadvantages to which she was subjected.
17. That was a case in which the employee had been certified as fit to return for work of up to two hours a day. Mr Draycott submits that what that case shows is that in the present case, since there was no such prognosis available before the decision to dismiss was made, and the employer did not wait until treatment had started and made no risk assessment, there was a breach of section 6. He submits that although paragraph 56 of the decision refers to the Respondent's concern to ascertain the prospects for the Appellant's return to work, and to ascertain the Appellant's medical condition, that was not enough. What had to be obtained was a prognosis and the Respondent did not wait for that.
18. Secondly, he submits that this conclusion errs in concluding that there was no evidence that the Appellant was fit for work since that involved the proposition that the burden was on the Appellant not the Respondent. He submits that the assessment available to the employers was that on 11 March, before treatment. That assessment was made shortly after the report that the condition was not as serious as originally anticipated. He submits that the Tribunal's conclusion that there was no adjustment that could be considered that would enable the Appellant to undertake work of any type in any location took an over-narrow approach because it was not looking and applying the principle that it was the employer's duty to carry out a preliminary assessment.
19. The third limb of this ground of challenge is that what is said in paragraph 56 is inconsistent with the finding of the Tribunal in paragraph 52 in relation to the fairness of the dismissal of the Appellant:

"52. It is the unanimous finding of the Tribunal that the applicant was dismissed by the respondent on the ground of capability. The Tribunal also unanimously finds that the dismissal was unfair. However, the Tribunal further unanimously finds that if the applicant had been treated unfairly he would have been dismissed after a further period of six months in any event. At the time when the applicant was dismissed there was not any evidence to show when, if at all, the applicant would be fit to return to work… The decision to dismiss the applicant was taken in accordance with the appropriate policy operated by the respondent in relation to sickness absence. However, at the time of his dismissal, there were indications that the applicant might be fit to return to work after about six months and he was just starting a course of treatment. Whilst the respondent considered a second opinion was needed in respect of the applicant's medical condition, the report from the additional consultant did not include a prognosis. The Tribunal therefore considers that it was unreasonable to dismiss the applicant on the date when he was dismissed and that an employer acting reasonably would have allowed a further six months to elapse which would have allowed for a reassessment of the applicant's medical condition, including an assessment of the effect of the treatment, and time to consider the consultant's prognosis. Had this happened, the Tribunal unanimously finds that the applicant's condition would not have been found to have improved sufficiently that he would have been classed as fit to return to work and his dismissal would have occurred at that time."

20. Mr Draycott submits that, since the factors taken into account in concluding that the dismissal was unfair relate to the absence of a prognosis, given the prospect that the Appellant might return to work within 6 months, there was a duty to explain the difference between the contents of paragraph 52 and the legal consequences thereof, and the contents of paragraph 56.
21. Mr Grundy on behalf of the Respondent submits first that the Tribunal had evidence of what had been done by the employers in seeking the assistance of their occupational health doctor agreeing to fund Mr Shackleford's opinion, assisting with transport, as seen in paragraph 26 of the decision which we have set out above.
22. Secondly, the evidence was that the Appellant was not fit. Until he was fit to do some employment a health and safety assessment could not be undertaken. The evidence was that, although the Appellant believed he could work at a computer, Dr Shackleton did not accept this and informed Mr Jarvis that the Appellant was "unfit for any form of employment".
23. Thirdly, the facts before the Employment Tribunal, which we have set out, enabled the Tribunal to reach the conclusion that there was nothing to be done. Mr Grundy submitted that the Tribunal applied the correct test in paragraph 55 (which we have quoted). It considered the matters set out in subsection 6 (4) of the Disability Discrimination Act 1995 and the Code of Practice. In addition to the information available on 11 March it had Mr Shackleford's report dated 25 March.
24. Mr Grundy submits that the submissions of the Appellant in effect sought to use the act of dismissing him as the reason for the breach of section 6 rather than the matters that are relevant to section 6. On the basis of the decision in Clark v TDG t/a Novacold [1999] IRLR 318, that, he argues, is not permissible. In that decision the Court of Appeal stated at paragraph 79 that it agreed with the Tribunal that "…the act of dismissing an employee was not in itself a breach of the section 6 duties."
25. Our conclusion on this first ground is that, first, there was evidence before the Tribunal upon which they could find that the Respondent was considering and assessing what it could do. Secondly, the submission that, as a matter of law, it was not open for the Tribunal to consider adjustments until a prognosis was available is not tenable. The circumstances of the Cambridge case differ. First, in that case the employee was certified as fit to return to work on a partial basis. Secondly, this Tribunal was considering whether the Employment Tribunal in that case was entitled to conclude that the steps required included an assessment of condition and prognosis. The Appellant's submission that the Tribunal also erred in considering that an assessment could be made before treatment commenced is similarly too broad.
26. We accept the Respondent's submission that the Appellant's argument is in effect that the disadvantage was the risk of dismissal and that there was a duty to consider adjustments before exercising the right to dismiss. In the light of Clark v TDG t/a Novacold, that is not a sustainable argument.

The Disability Discrimination Appeal

27. We turn to the second ground of challenge, the rejection of the disability claim itself. It is accepted that the Tribunal made the wrong comparison for the purpose of section 5 (1) (a) of the 1995 Act in comparing the Appellant with a person on long-term sick leave. Mr Grundy submits that notwithstanding that error the finding that in any event the dismissal was justified was not flawed. That finding is set out in paragraph 59 of the decision which deals both with section 5 (1) (a) and section 5 (1) (b). It states:

"59. With regard to section 5 (1) of DDA, the Tribunal unanimously finds that the applicant was considered for dismissal because of or for a reason related to his disability. However, the Tribunal also unanimously finds that the respondent did not treat the applicant, for a reason which relates to his disability, less favourably than it treats or would treat others to whom that reason does not or would not apply. Whilst the dismissal of the applicant at the time that he was dismissed was unfair, there was no evidence to suggest that the respondent would have treated anyone else, whether suffering from a disability or not, who was subject to the same attendance policy as the applicant, in any different fashion to the manner in which it treated the applicant. Obviously this disregards those employees of the respondent who had the benefit of permanent health insurance as they are not considered by the Tribunal to be relevant in the circumstances of this case. The applicant was unfit for work and was dismissed, as the respondent saw it, in accordance with the respondent's policy and the respondent would have treated any person without a disability but unfit for work in the same manner. In any event, the Tribunal unanimously finds that the eventual dismissal of the applicant was capable of being justified and fair."

28. Mr Draycott's submission is first that insofar as the last sentence of paragraph 59 is a finding of justification, it is insufficiently supported by reasoning. The issue was a complex one depending on factual matters on which the Respondent had to make an assessment and the Tribunal had to consider that assessment.
29. In paragraph 29 of his Skeleton Argument Mr Draycott submits that what he describes as, 'a bare assertion' in the last sentence of paragraph 59, amounts to an error of law in itself on the grounds that the Tribunal provided insufficient reasoning as to how it arrived at the conclusion.
30. Secondly, he submits that in view of the finding relating to unfair dismissal in paragraph 52 there was a particular need to explain why the dismissal was justified in terms of the disability legislation. He relies on the decision in Murray v Newham Citizen's Advice Bureau [2003] IRLR 340 and the decision of the Court of Appeal in Jones v The Post Office [2001] IRLR 384.
31. Mr Grundy submits that paragraph 59 should be read as a whole; that the reasons given in the body of paragraph 59 in relation to the section 5 (1) (a) test also apply to the last sentence in relation to the section 5 (1) (b) test. He accepted the suggestion that his submission required this Tribunal to read the words "in any event" at the beginning of the last sentence as "for these reasons".
32. He submits that first the test for justification under the disability discrimination legislation differs from that under section 98 of the Employment Rights Act 1996 and that the threshold for determining whether discriminatory treatment of a disabled person is justified is "very low": see Heinz v Kenrick [2000] IRLR 144 at paragraph 16.
33. He submits that taking account of the difference in the test and reading paragraph 59 as a whole, that the Tribunal did not fall into error in relation to its application of section 5 (1) (b) of the 1995 Act. He submits that the question for the Tribunal was whether the treatment was justified in the sense that the reason for it was both material to the circumstances of the particular case and substantial in terms of section 5 (3) of the Act.
34. Mr Grundy argues that the reasons in the decision of the Employment Tribunal are: first, that the Appellant was unfit for any work; second, that the Respondent acted in accordance with the attendance policy which was applicable to all employees; third, that the Respondent would have treated any person without a disability but unfit for work in the same manner; and fourth, that the Appellant's absence was placing stress on the team in which the Appellant worked which had to operate on reduced numbers during his absence so that it was necessary to recruit an alternative person on his team at the time.
35. The last of these factors is, however, not mentioned in paragraph 59. Mr Grundy gleans it from paragraphs 10 and 52 of the decision. He submits that we are entitled to look for the reasons that the decision as a whole.
36. Our conclusion is that the focus of the Tribunal in paragraph 59 was on the finding as to whether the treatment was less favourable for the purposes of section 5 (1) (a). It is, moreover, not at all clear from paragraph 59 that the Tribunal addressed the issue of justification under section 5 (1) (b) properly. If, as Mr Grundy submits, the Tribunal took all the matters listed for 5 (1) (a) purposes into account in its 5 (1) (b) exercise, then they took into account the position of a person on long-term sick leave without addressing the fact that the exercise under section 5 (1) (b) differs from that under section 5 (1) (a) because at most the fact of being on long term sick leave can be a factor under section 5 (1) (b) rather than a bar. Secondly, although we do not accept Mr Draycott's submission that Collins v Royal National Theatre Board [2004] IRLR 395 at 32 binds us, that decision is of analogous relevance. That decision held that it is not legitimate to establish as justification of a breach of section 6 by the use of factors properly relevant to the establishment of a duty under section 6. Effectively Mr Draycott submits that the argument is the same in relation to section 5 (1) (a) and section 5 (1) (b) so that it is not legitimate to justify a breach under section 5 (1) (b) by reference to factors properly relevant to section 5 (1) (a).
37. We conclude that if the Tribunal was going to take these factors into account in this different way for the purposes of section 5 (1) (b) it was incumbent on it to give an explanation. Without such an explanation there is a lurking doubt that it took into account something for section 5 (1) (b) in the same way as it had for section 5 (1) (a), i.e. that for section 5 (1) (b) it treated a matter that could only be a factor as a bar.
38. The threshold for determining whether discriminatory treatment of a disabled person is justified is different to that for unfair dismissal. In the circumstances, however, given the findings in paragraph 26 and their connection with the Appellant's disability, we have concluded that, applying the test in Meek v City of Birmingham District Council [1987] IRLR 250, the reasons set out in paragraph 59 are not adequate.
39. Accordingly, the Appellant succeeds on the second ground of the appeal. The consequence is, although subject to any submissions made, that the third ground of appeal, relating to compensation, falls away because the finding in relation to disability discrimination will be set aside. We observe in relation to this that, although we accept Mr Grundy's submission that there was evidence before the Tribunal upon which it could make the finding of fact in relation to the period of compensation and that the Appellant would have been dismissed 6 months after the effective date of termination, in view of the directions made by the Tribunal on 16 July we consider the parties should be allowed to instruct expert witnesses before determining the issue of compensation. The Tribunal had indicated that it was permissible to wait until liability had been concluded but did not do this. In any event this matter falls away.
40. For these reasons we allow the appeal and set aside the decision on disability. The matter is remitted in relation to the discrimination appeal. We see no reason why the matter should not be remitted to the Tribunal which heard the matter before.

[Discussion]

41. To clarify. What I said in relation to the discrimination finding of course stands. But the import of what I said in relation to our view on the compensation findings means that in relation to the unfair dismissal finding we consider that the Appellant should have the opportunity, should he wish it, to instruct witnesses so that the issue of the period of compensation can be determined. We rest that decision on the directions given in July. Ground 1 is dismissed. Ground 2 is allowed. Ground 3 is allowed in relation to the unfair dismissal claim.