United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS JILL BROWN (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE
For the Respondent	MISS ELIZABETH MELVILLE (of Counsel) Instructed by: Messrs Thring Townsend Solicitors 6 Drakes Meadow Penny Lane Swindon Wiltshire SN3 3LL

SUMMARY

Disability Discrimination

Appeal of test for detriment allowed on basis that ET applied wrong test - case remitted on this matter to a differently constituted employment tribunal.


 


HIS HONOUR JUDGE PROPHET

1. Mr Wrona submitted a complaint of disability discrimination to the Employment Tribunal at Bristol. It was resisted by the employer, with whom he was still employed at the time of submitting his complaint, although he was then absent due to illness. Mr Wrona suffers from osteoarthritis in both knees and claimed in his application to the Employment Tribunal to be a disabled person for the purposes of the Disability Discrimination Act 1995.
2. Although the employer originally challenged that claim, by the time Mr Wrona's complaint came to be heard by an Employment Tribunal sitting at Bristol on 16 September 2003 with Mr C F Sara as the Chairman and Mr D Ellis and Mr G M Young as the lay members, the employer had conceded that Mr Wrona was a disabled person for the purposes of the 1995 Act. Also either before or at that hearing an amendment to the Originating Application had been accepted by consent to include an allegation of victimisation.
3. At the Employment Tribunal hearing Mr Wrona was represented by Ms J Brown of Counsel and the employer by Mr M Neild, solicitor. At today's full hearing of this appeal Ms Brown again represents Mr Wrona and the employer is represented by Miss Melville of Counsel. We would, with respect, wish to commend both Counsel for the clarity of their submissions to us today.
4. At the beginning of the Extended Reasons there is no reference to any possible issues having arisen in regard to time limits. In paragraph 15 of the Extended Reasons the Tribunal say:

"Strictly any such acts were out of time anyway, but we were minded to extend time to enable the December incidents to be pursued and treating the earlier ones as background to help us to decide whether the December acts were proof of a course of conduct which was discrimination."

5. Having ascertained the position with Counsel today, it is apparent that no point is taken by either side on the matter of time limits and that it is accepted that the December incidents constitute specific complaints which the Employment Tribunal had to decide in respect of discrimination, and that any earlier incidents to that were to be regarded as background matters.
6. What the Employment Tribunal does say at the beginning of its judgment is that the substance of Mr Wrona's complaint relates to what were described as a linked series of incidents involving Mr Wrona's treatment by fellow employees and by management.
7. In order to understand the appeal in this case it is necessary just to set out briefly the facts. Mr Wrona's employment with the employer began in 1997. In June 2001 he had a knee operation. When he returned to work following that operation he moved to the engine department which, not being a production line, was more suitable for his post-operative condition. It was also possible in that department for him to have a chair to enable him to sit down from time to time during the course of his work. Unfortunately for Mr Wrona the condition of both his knees deteriorated thereafter and in October 2002 he was diagnosed as having osteoarthritis in both knees.
8. The Employment Tribunal made and set out its findings of fact in respect of the series of incidents which they had earlier referred to, including ones in December 2002 which, as has already been noted, now constituted specific complaints for the Employment Tribunal's determination. In particular, there was an altercation involving use of the chair with one member of staff, Caroline Arthur. There was feeling expressed that there was nothing to justify Mr Wrona having a chair to sit on from time to time.
9. Following those matters the Employment Tribunal made further findings of fact relating to an internal grievance, but those details are not relevant to the matters of appeal which we have considered today. It may be said, perhaps, that it appears that the employer made a detailed investigation of those matters and the Employment Tribunal found that a Mr Ballamy dealt appropriately with the grievance.
10. It can therefore be said now that it was largely in relation to those further matters that the complaint of victimisation arose and it has been established here today that there is no appeal in respect of the dismissal by the Employment Tribunal of that complaint.
11. On disability discrimination itself, arising under section 5 (1) of the Disability Discrimination Act 1995, the Tribunal's judgment unanimously was that Mr Wrona's complaints were dismissed.
12. We have endeavoured to set out some statement of the findings of fact because apart from one matter (to which we will come in a moment) the essential thrust of the Notice of Appeal is that it was wrong of the Employment Tribunal to conclude that Mr Wrona did not suffer any detriment as a result of the matters that arose in December 2002. This was either because the acts were ostensibly hostile and directed against Mr Wrona's disability, or because the Employment Tribunal used the wrong test as to what constitutes a detriment.
13. We have found it necessary to look with care in particular at the second of those submissions. Although higher court judgments as to what constitutes a detriment for the purposes of discriminating legislation have not been consistent in the past, there was an important decision in the Jeremiah v Ministry of Defence [1979] IRLR 436 case. That judgment was endorsed by the House of Lords decision in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. The question essentially is whether a reasonable worker would or might take the view that as a result of the treatment he had suffered he had been disadvantaged in the circumstances in which he had to work.
14. Having set out that test in paragraph 13 of the Extended Reasons, the Employment Tribunal then embarked on an exercise of relating detriment to harassment, as defined in the Disability Discrimination (Amendment) Regulations 2003, which do not come into force until 4 October 2004, i.e. after the judgment of the Employment Tribunal. In particular, the Employment Tribunal said, at paragraph 14 of the Extended Reasons:

"Our view is that the judgment of the House of Lords in Shamoon is binding on us and that is the provision which we will construe, but we have to construe it in the light of that definition."

That is to say, the definition of harassment in the aforesaid regulations.

15. We are not able to accept that this was a proper self-direction. Miss Melville has conceded that there are difficulties in applying regulations which are not in force at the time of the judgment of the Employment Tribunal, and we can see no reason why the definition and test for detriment, as now set out in Shamoon, has to be construed in the light of a definition of harassment in regulations not yet in force.
16. Even if they had been in force, however, it seems to us that it cannot be right to construe a detriment as being in some way necessarily dependent on a definition of harassment, and although we have considered Miss Melville's submissions carefully we are not able to accept that the Employment Tribunal would necessarily have come to the same conclusion as it did by applying the correct Shamoon test, or that the Tribunal was entitled to put a gloss on that test having regard to the particular circumstances of this case.
17. It follows therefore that we are satisfied that the conclusion of the Employment Tribunal that there was no detriment arising from the December incidents is unsafe, and that is sufficient for us to allow this appeal and quash the judgment of the Employment Tribunal.
18. The further main point of appeal (the one that we indicated a little earlier was one which we would come to later) relates to allegations of bias. Ms Brown has helpfully indicated to us that having regard to our findings in respect of the matter of detriment she is content for that part of the appeal to be adjourned and that if there is no appeal to the Court of Appeal in respect of our judgment thus far, she will then withdraw that part of the appeal.
19. On that basis therefore, the course to be followed in this case is for the appeal to be allowed and the case to be reheard on the issue of direct disability discrimination by a differently constituted Employment Tribunal.