United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	MR E MORGAN (Of Counsel) Instructed by: Messrs Davies Wallace Foyster Solicitors 5 Castle Street Liverpool L2 4XE
For the Respondent	MR MOHINDERPAL SETHI (Of Counsel) Instructed by: Messrs Beecham Peacock Solicitors 7 Collingwood Street Newcastle Upon Tyne NE1 1JE

SUMMARY

EAT upheld ET decision that on the facts of the case the Appellant employer was (a) fixed with constructive knowledge of the Claimant's disability and (b) failed to consider what reasonable adjustments should therefore be made.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from the Decision of an Employment Tribunal sitting at Newcastle upon Tyne on 6-9 September and 4 October 2004. The Chairman was Dr I J Watt and the members were Mr S Aisbitt and Mrs K Kennedy. The unanimous decision of the Tribunal was that:

(1) The claimant had suffered discrimination contrary to section 5(1)(a) of the Disability Discrimination Act 1995.

(2) The second respondent (The Department for Work and Pensions) did breach section 5(2) and section 6 of that Act by failing to consider reasonable adjustments.

The reserved decision of the Tribunal was entered in the Register and sent to the parties on 13 October 2004.

2. There was a subsequent remedies hearing on 19 January 2005 in the same Tribunal which awarded Miss Hall the sum of £2,500 for injury to feelings together with interest in the sum of £377.00 making a total award of compensation of £2,877.00. There is no appeal from the award of compensation.
3. We note that although there were two respondents before the Employment Tribunal, a Mr Graham and The Department for Work and Pensions, the reserved judgment of the Employment Tribunal makes no real mention of Mr Graham and no separate finding of discrimination was made against him and therefore no award of compensation was made against him. This appeal is only by the Department for Work and Pensions.

The Material Facts

4. The Employment Tribunal made extensive findings of fact contained in paragraphs 8.1 - 8.50 of its judgment. Suffice it to say that what is agreed is that the Claimant was a disabled person for the purposes of the Disability Discrimination Act 1995. As the result of her psychiatric condition she had to take medication. In mid-July 2002 the Respondent was employed by the Appellant as an Administrative Assistant. Prior to taking up her employment she had completed a Health Declaration Form in which she had declined to provide any information about disability or long term health conditions. In addition she refused permission for the Appellants to contact her doctor. The Tribunal found that although the Appellant therefore had a series of negative replies to questions of ill-health and disability which were linked to a refusal to let them have access to the Claimant's doctor or medical records it did not view this as a warning sign. The Tribunal found this surprising and because the Appellant had advised the Respondent in writing that:

"We will be making enquiries into your health, qualifications and references. If the outcome of these enquiries are satisfactory you will be informed and your appointment will be confirmed. If the outcome of the enquiries other than into your health are unsatisfactory your appointment may be terminated. In relation to the enquiries concerning your health, if the outcome is unsatisfactory or if in particular no reasonable adjustments can be made, your appointment may be terminated." Decision Paragraphs 8.5-8.6

5. In addition the Respondent had been interviewed by a panel including a Mr Colin Tarn who had known the Respondent for some time and indeed was acquainted with her former husband. Nothing was said by Mr Tarn about health or disability issues.
6. Within a matter of days after commencing employment there began a series of incidents where the Respondent clashed verbally with other members of staff. By 19 August 2002 the Appellant had been issued with an oral warning due to proven misconduct. She was warned that disciplinary action would be taken if she failed to maintain required standards of conduct.
7. At approximately the same date the Claimant was in the course of making an application for a disabled person's tax credit from the Inland Revenue. It was therefore necessary for her to complete a form to be presented to her employers. That was done. The form was seen by her manager, Mr Sherring, and sent by him to the Appellant's Human Resources Department. Neither Mr Sherring nor the Human Resources Department seemed to have considered the information on this form might have any relation to the Respondent's conduct at work. That conduct was disruptive and volatile. Incidents between the Respondent and other members of staff continued. These were both verbal altercations and minor physical contact. On 14 October 2002 Mr Graham suspended the Respondent. The disciplinary process was triggered and following a disciplinary hearing on 23 February 2003 the Respondent was dismissed by letter 28 February 2003. There was a subsequent appeal which was dismissed. The reason for the dismissal was that the Claimant had failed to comply with the departmental standards of behaviour by repeatedly refusing to comply with reasonable management requests and acting in a rude and threatening manner: Decision paragraph 8.47.
8. The Tribunal made certain findings of fact about the layout of the workplace which are relevant to this appeal and they are contained in paragraph 8.49 of Decision. It says this:

"8.49 Mr Hall, who is familiar with the Tyne View Building, then gave the Tribunal a description of the layout. He explained that it was entirely based on an open plan arrangement with very few persons having their own private office. Only the most senior managers such as himself would have an individual office. Mr Hall also explained that since the claimant worked there in 2002 greater numbers of people were now working in the area that the claimant had been employed in. Additional workstations had been provided. The area that had been used as a quiet area for the claimant's training was now fully occupied. It would have been very difficult in the view of Mr Hall to find anywhere that the claimant could have been accommodated separately to her team. Mr Hall's evidence in this regard was supported by that of Mr Graham, who indicated that before he had left to go to another position within the DWP he had had to surrender his own office area. Mr Graham was of a similar view to Mr Hall that it would be almost impossible to accommodate the claimant's requirements, particularly given the increased number of people working at the centre."

9. Finally, the Tribunal made certain findings of fact in relation to the Appellant's knowledge of the Respondent's disability. At paragraph 8.50 of its Decision it says:

"8.50 Mr Sherring, Mr Graham and Mr Hall said that they did not have any basis for suspecting that the claimant was a disabled person. None of them had seen the medical health declaration made by the claimant and at no stage had any of them asked Human Resources for sight of any background documentation of that kind. So far as Mr Sherring and Mr Graham were concerned they both had to agree that they were aware of the claimant's very unusual behaviour. They agreed to this behaviour had given rise to varying degrees of concern throughout the claimant's employment at Tyne View Park. Indeed, Mr Sherring, as noted above, claimed that he was spending wholly disproportionate amounts of time in either dealing with the claimant directly or dealing with the consequences of her conduct by having to speak to others. In August Mr Sherring and the H R Department had been alerted to the claimant's claim for disability tax credit but that had occasioned no enquiry by them. Ms Hart was alerted to the question of medication affecting the claimant. Both in her interview and in the notes of evidence she must have been stricken by the many references to mental health albeit mostly in colloquial terminology. All of these factors put the respondent on notice."

The Employment Tribunal's Conclusions

10. The Employment Tribunal then set out the provisions of the legislation and the Code of Practice: Decision paragraphs 9 -13. It then went on to consider the various questions which it had to consider. First, it considered the question of whether there had been less favourable treatment under Section 5(1)(a) of the Disability Discrimination Act 1985. It considered this in detail and decided that there was such less favourable treatment: Decision paragraphs 14-15. In doing so it specifically rejected the Appellant's submission that London Clubs Management Ltd v Hood [2001] IRLR 79 applied to this case.
11. Having concluded that there was a breach of Section 5(1)(a) the Tribunal turned to the question of justification. It decided that the Appellant had constructive knowledge of the Respondent's disability and that it was therefore not justified in treating the Respondent in the way that it did: Decision paragraphs 16-20.
12. Third, the Tribunal turned to the question of reasonable adjustments under Section 6 of the 1995 Act. It decided the Appellant did not take any steps in relation to the making of reasonable adjustments because it failed to address its mind to that question despite having constructive knowledge of the disability: Decision paragraphs 21-22.
13. Fourth, the Tribunal addressed the issue of justification for non-compliance with the Section 5(2) duty and referred to Collins v Royal National Theatre Board [2004] IRLR 395 and rejected the Appellant's argument that there were no adjustments that could be made. It noted that the possibility of removal of the Claimant to a quieter working area where contact with other employees was minimised was possible at the time of claiming there was no longer any possibility of finding such a quiet area and therefore that adjustment could not have been made. The Tribunal noted that Section 6(3) of the 1995 Act envisages a range of possible adjustments which the Appellant clearly did not address. It was its obligation to address those matters. Thus, it may have been possible within its organisation to find alternative employment for the Respondent at another place within its organisation: Judgment paragraphs 21-25.
14. However, the Tribunal did refer to medical evidence of Professor Eccleston who noted that without medication the Respondent could not function in the workplace doing the kind of administrative work that was required by the Appellant. In those circumstances the Tribunal held that whatever reasonable adjustment the Appellant had considered would have made no difference because of the Respondent's own conduct in deciding not to take medication. Therefore under Section 6(4)(a) of the 1995 Act it would appear that there would be no steps an employer could make in these circumstances in order to make a reasonable adjustment: Decision paragraph 26.
15. The Tribunal summarised its conclusions in this way:

"Conclusions

27 For all these reasons given above the Tribunal has concluded that there has been a breach of section 5(1)(a) and that the second respondent has discriminated against the claimant for a reason that relates to the claimant's disability by treating her less favourably than it treats or would treat others to whom that reason does not or would not apply.

28. For all reasons given above the Tribunal has concluded that there was a failure on the part of the second respondent to address the question of reasonable adjustments. Therefore, the second respondent was in breach of its duty and a finding against it must be made under sections 5(2) and 6 of the DDA 1995. However, at the same time the Tribunal is satisfied that no reasonable adjustment could have made for the reasons given by Professor Eccleston. Therefore, this is a breach in respect of which the only appropriate compensation should fall within the award for injury to feelings."

The Notice of Appeal

16. The Appellant was represented by Mr Edward Morgan of Counsel. The Respondent was represented by Mr Mohinderpal Sethi, instructed by the Bar Pro Bono Unit. We are grateful to both Counsel but particularly to Mr Sethi for appearing at such short notice.
17. There are five grounds of appeal and we propose to take them in the order in which they were argued before us.

Ground 1: The Section 9 DDA point

18. Mr Morgan submits that the Employment Tribunal made an error of law in paragraph 7 of its judgment when it held that the agreement made between the parties in paragraph (xii) of the third schedule referred to in paragraph 5 of the Tribunal's judgment was of no effect because the parties cannot agree retrospectively that the duty did not arise without withdrawing the complaint before the Tribunal. In support of this submission Mr Morgan relied on Section 9 of the Disability Discrimination Act 1995.
19. We do not agree that Section 9 has any relevance to this point. The third schedule purported to be the parties agreeing 12 matters of fact. It has no connection with any term in a contract of employment. Furthermore, although the Employment Appeal Tribunal drew the attention of Counsel to Chapman v Simon [1994] IRLR 124 it seems to us that the case has no application to the present case because it did not involve the Claimant going outside her Originating Application in order for the Employment Tribunal to make a finding that disability discrimination had taken place. Furthermore, even if we are wrong about that, we do not accept Mr Morgan's submission that this error had any practical effect on the result of this case. The Tribunal's findings in paragraphs 25 and 26 of its liability decision and in its remedies decision make it clear that because of the effective refusal of the Claimant to take her medication the failure by the Appellant to consider the Claimant for an alternative position would have been of no effect and therefore she was not entitled to any compensation in respect of such failure.

Ground 2: The Less Favourable Treatment Issue

20. Mr Morgan submits that the Employment Tribunal was in error in failing to follow London Clubs Management Limited v Hood [2001] IRLR 719: Decision paragraph 15. In that paragraph the Employment Tribunal say this:

"15 However in regard to the issue on the application of section 5(1)(a) the respondent relied on London Clubs Management Limited -v- Hood [2001] IRLR 719. That case concerned the general application of a sick pay policy to a whole group of employees that happened to include the claimant who was a disabled person. The distinction in this case is that we are not dealing with a contractual benefit but with a discretionary decision where the employer has to decide on how to respond to a particular set of circumstances in accordance with general policies and procedures. London Clubs Management Limited -v- Hood therefore does not apply in circumstances such as these. The policy on discipline in the workplace applies to all groups of workers in this employment. How that policy is implemented is a discretionary act at the various levels of management. The exercise of those discretions therefore are subject to the provisions of sections 5 and 6 of the DDA 1995."

21. Mr Morgan submits that the Employment Tribunal were in error in distinguishing the Hood case because there was no finding of fact that Ms Hall was treated differently in the disciplinary process from any other employee.
22. We disagree. As Mr Sethi points out the Employment Tribunal did make findings of fact in relation to differential treatment in the application of the disciplinary process: Decision paragraphs 8.18; 8.25-8.26; 8.31-8.32; 8.40. In our judgment the Employment Tribunal were fully entitled to distinguish the Hood case on the facts.

Ground 3: The Constructive Knowledge Issue

23. Mr Morgan submits that the Employment Tribunal were in error in imputing constructive knowledge of the Claimant's condition to the Appellant's: Decision, paragraphs 8.5 and 8.22. He makes that submission based upon the expert evidence of Professor Eccleston who when invited to express a view on whether or not a lay person would recognise there was something wrong said this:

""I would be foolish to say that there would be no one but I think the person would have to be reasonably sophisticated to pick these things up"." Decision paragraph 8.37.

24. We agree with Mr Sethi that in this case the Employment Tribunal made adequate findings of fact to justify its conclusion that the Appellant was fixed with constructive notice of the Claimant's condition: Decision paragraphs 16-20. This is an issue of pure fact and involves no error of law.

Ground 4: The Reasonable Adjustment Issue

25. Mr Morgan submits that the Employment Tribunal failed to direct itself as to the proper meaning of reasonable adjustment under Section 6 of the Disability Discrimination Act 1995. Mr Morgan submitted that the question here was: "Can there be a failure to make a reasonable adjustment which would not have worked because the Claimant would not take her medication?" In support of that submission he referred to the following authorities:

(1) London Clubs Management Ltd v Hood [2001] IRLR 719 at paragraph 20;

(2) Kenny v Hampshire Constabulary [1999] IRLR 76 at paragraphs 40 and 46;

(3) Morse v Wiltshire County Council [1998] IRLR 352 at paragraphs 29-33;

(4) Archibald v Fife Council [2004] IRLR 197 at paragraphs 25 and 36.

26. Mr Sethi relies on the judgment of the Tribunal at paragraphs 21-22 and in particular the last part of paragraph 22 where the Employment Tribunal said this:

"Given that the question under section 6(1)(a) is to consider whether the arrangements made placed the claimant at a substantial disadvantage in comparison with persons who were not disabled, the second respondent should have addressed its mind to those matters illustrated in section 6(3)(a) to (l). As established in British Gas Service Ltd - v-McCall it would be very difficult for an employer to justify the failure to take reasonable steps if he has not considered what steps should be taken. Therefore, the duty is on the employer. In this case the second respondent did not take any steps in relation to the making of reasonable adjustments in consequence, the second respondent must be held to be in breach."

27. We agree with the Employment Tribunal in its analysis of the law. In support of that analysis it is only necessary to refer to Mid Staffordhsire General Hospitals NHS Trust v Cambridge [2003] IRLR 566; and to paragraph 17 of the judgment of Keith J. Indeed, the words used by the Employment Tribunal in this judgment mirror the language of Keith J in that case.

Ground 5: The justification issue

28. Mr Morgan submits that there is nothing in the Employment Tribunal Decision which considers or properly considers the issue of justification. Alternatively he submits the Employment Tribunal approached the issue of justification in the wrong way. He relies upon the Decision of the Employment Tribunal in relation to fact finding: Decision paragraph 8.49; and then the Employment Tribunal's conclusion: Decision paragraphs 16-20. He submits that paragraph 16 does not engage with the facts of the case. It was about the application of a disciplinary policy. Furthermore, paragraphs 17-20 of the Employment Tribunal judgment deal with the question of knowledge and not justification.
29. We agree with Mr Sethi that one needs to read this ground of appeal with the fourth ground of appeal relating to the reasonable adjustment issue. Once the Tribunal have made the finding of fact (which is unchallengeable) that the Respondent did not take any steps in relation to the making of reasonable adjustments and were therefore in breach of their duty under Section 6 of the Disability Discrimination Act 1995 it was not necessary for it to make a finding that such a failure was justified. Having found that the Appellant was fixed with constructive knowledge of the Claimant's condition but that it had taken no steps to consider reasonable adjustments then justification becomes irrelevant. There was no error of law.

Conclusion

30. For these reasons there was no error of law on the part of the Employment Tribunal in this case and the appeal is therefore dismissed.