United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THOMAS KIBLING (Of Counsel) Instructed by: Messrs Graham Clayton Solicitors Hamilton House Mabledon Place London WC1H 9BD
For the Respondent	MISS ELEENA MISRA (Of Counsel) Instructed by: Kent County Council Legal & Secretariat Sessions House County Hall Maidstone Kent ME14 1XQ

SUMMARY

Interrelationship between Section 5 and Section 6 of Disability Discrimination Act 1995.


 


HER HONOUR JUDGE WAKEFIELD

1. This is an appeal by Ms Mary Hamill against a decision of an Employment Tribunal sitting at Ashford, Kent in January 2004 by which her complaints of unfair dismissal and disability discrimination were dismissed.
2. The background facts, which are very fully set out in the Extended Reasons for the decision sent to the parties on 18 February 2004, may be briefly stated for the purposes of this appeal. The Appellant was initially employed by the Respondent, Kent County Council, from 1 April 1988 as a full-time English teacher but from September 1988 worked four days a week as a Language Support Teacher in the Respondent's Minority Communities Achievement Service (MCAS). Between 20 August 2000 and 7 January 2001 she was unable to work by reason of ill-health, returning to work initially for two days a week and then three days a week from February 2001. Following a further period when the Appellant was away from work in mid-2001 and an incident on 29 June 2001 in which a pupil was involved, the Respondent commissioned and obtained in December 2001 a medical report on the Appellant's condition otherwise than through its Occupational Health Department. They then commenced the capability hearing on 21 March 2002 and from 27 March 2002 suspended the Appellant from teaching duties. In April 2002 the Appellant returned to work doing non-teaching duties but following the reconvening of the capability hearing on 29 May 2002 the Respondent took the decision to dismiss the Appellant with effect from 31 December 2002. An internal appeal, in the form of a re-hearing, in September 2002 was unsuccessful. Between May 2002 and the effective date of termination of the employment in December, efforts were made on both sides to find alternative employment for the Appellant with the Respondent but these were unsuccessful.
3. By an Originating Application presented to the Employment Tribunal in March 2003, the Appellant complained of unfair dismissal and disability discrimination. By the Notice of Appearance, the Respondent accepted that the Appellant was a disabled person within the meaning of the Disability Discrimination Act 1995 and that it had treated her less favourably because of her disability by dismissing her as a result of her illness. The Respondent claimed that such treatment was justified because the reason for it was both material to the circumstances of the particular case and substantial. The Respondent further denied any failure to comply with a duty to make reasonable adjustments under Section 6 of the 1995 Act, alternatively that any such failure was justified under the terms of Section 5(3) of the Act. So far as unfair dismissal was concerned, the Respondent claimed that the reason for the Appellant's dismissal was "her incapability due to ill-health" and that the dismissal was fair in all the circumstances.
4. The hearing before the Employment Tribunal occupied four days and the panel met for a further day to consider its decision. In the Extended Reasons the Employment Tribunal first identified the issues, then set out the sources of evidence before them before making, in paragraphs 14-53 their detailed findings of fact. These are followed by a summary of the parties' submissions and the relevant law. Finally, came the conclusions.
5. As to unfair dismissal, the Employment Tribunal concluded in paragraphs 62-66:

"Conclusions

Unfair Dismissal Claim

62. Having made the findings of fact set out above, the Tribunal concluded that the reason for dismissal was capability due to ill health. We then considered the decisions to dismiss taken by the Respondent both in May and in September 2002, given that the appeal hearing was a re-hearing. Firstly, we concluded that there was no procedural unfairness in either of the hearings. The Applicant was fully aware of the management case, was given every opportunity to put her views to the deciding authorities, was accompanied by her representative, and the procedure was altered to accommodate her, by completing the initial hearing by way of written questions and answers.

63. We then considered whether or not the decision to dismiss was fair in all the circumstances having regard to the matter set out in section 98(4) of the 1996 Act. We noted the Applicant's views about Dr McPherson's report and sympathise with her feelings of outrage that persons other than Occupational Health had been allowed to read that report. However, although she did dispute a number of matters in that report she did not dispute its conclusions. She had provided her own doctor's letters in order to give a more balanced view. However, Ms Wainwright took the view that there could be a risk to students. We concluded that it was not unreasonable for her to form that view given the content of the medical evidence before her and given the events of 29 June 2001. In doing so, we are mindful that we must not substitute our view, but consider whether a reasonable employer could have come to the same conclusion as Ms Wainwright. We are satisfied that there was sufficient material before her to support her conclusions.

64. We concluded that the Respondent had taken proper steps to establish the Applicant's medical condition. They had not followed their own procedure with regard to capability and therefore had no Occupational Health back-up to assist them in interpreting Dr McPherson's report. However, given that the Applicant did not dispute his conclusions, it was for Ms Wainwright ultimately to make a management decision about whether or not the Applicant's employment could continue, not simply in the light of the medical evidence but because of the evidence about the event in June 2001. We concluded that Ms Wainwright's decision to dismiss the Applicant was fair given the evidence before her. We could not say that no reasonable employer would have dismissed in these circumstances.

65. Turning to the decision of the appeal hearing to uphold the decision to dismiss, we were concerned that the Appeal Panel did not have any up-to-date medical information on which to base their decision. It was clear from Ms Gates' evidence that significant weight had been given to the incident on 29 June 2001, but we could not say it was unreasonable for the employer to do so. The Appeals Panel knew from the management report that Dr McPherson had suggested that there was a high likelihood of a reoccurrence of an episode connected with the Applicant's condition, and no doubt this alarmed the Appeals Panel. There had been a serious incident with a student (although no harm had been done); the Appeals Panel knew that the Applicant's condition required a stable environment and they also knew that her employment situation was to a large extent uncertain, because of the way in which the Service was now funded by schools; the Respondent could no longer guarantee a fixed placement for teachers within the Service.

66. We concluded that the Appeals Panel had weighed up all of these matters properly. They did not have up-to-date medical evidence largely because the Applicant did not want Dr McPherson's report to be sent to Occupational Health, and our view is that this was a mistake on her part as this could have been helpful for the Appeals Panel to have received Occupational Health's advice. On balance therefore, we were satisfied that we could not say that no reasonable employer would have dismissed in these circumstances. Therefore, we concluded that the dismissal was not unfair."

6. The conclusions as to disability discrimination are set out in paragraphs 68-77 of the Extended Reasons as follows:

"Disability Discrimination Claims

68. The Respondent accepted that the Applicant had been dismissed for a reason related to her disability. The issue for the Tribunal was, therefore, was the reason for the treatment both material to the circumstances of the case and substantial, and if so, was the Respondent under a duty to make reasonable adjustments under section 6 and had they failed to do so without justification.

69. We were satisfied that the reason for the dismissal of the Applicant was a reason both material to the circumstances of the case and substantial. The nature of the Applicant's disability, and the previous incident, meant that there was evidence of a risk associated with her continued teaching, and this was compounded by the fact that the Respondent could not guarantee a stable environment not only because of the way in which schools funded the Service but also because of the nature of the students to be taught. The potential effect of this on the Applicant's condition was also a significant factor.

70. We therefore concluded that the reason for the dismissal was justified by the Respondent.

Section 5(5)

71. We therefore had to go on to consider whether or not the Respondent was under a duty to make reasonable adjustments which would have eliminated the reason for the dismissal under section 5(5) of the Act. We concluded that there was such a duty, but there were no reasonable adjustments which could be made in these circumstances. The nature of the Applicant's work as a peripatetic language teacher could not be adjusted by the Respondent by any reasonable steps. Consequently, the dismissal had been justified by the Respondent.

Removal from Post

72. The Applicant also complained that she had been removed from her teaching duties between July 2001 and December 2002. The Respondent accepted that this was less favourable treatment for a reason which was related to her disability. The issue was whether this action was justified. We concluded, on the findings of fact which we had made, that such a decision was justified. It had been for a reason which was both material to the circumstances of the case and substantial and related solely to the reasons set out above for the dismissal.

Failure to Obtain Medical Evidence

73. The Applicant also complained that a failure to obtain (further) medical evidence was less favourable treatment for a reason related to her disability. We considered that it could be argued that a report or further report would not be necessary without the disability being present and therefore any decision refusing to obtain such a report could be said to be less favourable treatment for a reason relating to the disability. The Tribunal concluded however that the Respondent had justified that decision as they already had medical evidence, in a report from Dr McPherson, and as they had given the Applicant an opportunity for Dr McPherson's report to be reviewed by Occupational Health. Consequently, the reason for not obtaining further medical evidence was both material to the circumstances of the case and substantial.

Failure to make reasonable adjustments

Adjustments to Post

74. We reminded ourselves of the sequential steps recommended in the case of Morse (above). With regard to the Applicant's substantive post, the Tribunal considered that the Respondent's arrangements had placed the Applicant at a substantial disadvantage in comparison with non-disabled persons, in that the Applicant's disability required her to be given a stable and settled environment at work and the Respondent was unable to guarantee this. At the material time the Respondent knew that the Applicant was a disabled person. A duty was therefore imposed by section 6(1). We therefore had to consider whether or not the Respondent had taken such steps as was reasonable to take in all the circumstances in order to prevent that disadvantage. If not, was a failure to do so justified. Having considered the position, we concluded that there were no steps that the Respondent could reasonably have taken because of the nature of the Applicant's post, the nature of the children that she would be required to teach and the way in which the post was funded by schools, which meant that no guarantee could be given as to where she would be teaching them. Consequently, we found that there were no reasonable steps that the Respondent could have taken in these circumstances in order to prevent the disadvantage to the Applicant. If we are wrong about that, then we consider that the reasons set out above would constitute a reason for failing to comply with the duty which was both material to the circumstances of the case and substantial.

Failure to Identify Alternative Posts and Make Adjustments to Them

75. The Applicant complained that the Respondent had failed to make reasonable adjustments by failing to identify another suitable post for her. Having found that the Respondent had made efforts to do this, had assigned the Applicant as a level 1 candidate in their re-deployment procedure, written to relevant managers and referred vacancies to her, had met with the Applicant to discuss her requirements and had on occasions requested explanations from managers as to why the Applicant had not been offered posts, and had given the Applicant training as requested by her, we were satisfied that the Respondent had taken such steps as were reasonable in all the circumstances in order to comply with their duty under section 6 of the Act. The Tribunal notes that the redeployment process had improved when compared with that in operation at the Respondent's organisation at the time of Mingo (as above).

76. Lastly, the Applicant complained that the Respondent had failed to comply with their duty to make reasonable adjustments by failing to consider adjustments for available posts. We reject this argument on the basis that the duty had not arisen at the interview stage, and there were no reasonable adjustments which could have been made (or appeared to have been reasonable to have made) to the posts considered at the Tribunal hearing, for which the Applicant applied, which would have ensured that the Applicant was offered one of those posts. The reason that no offers were made had nothing to do with the Applicant's disability. Had she been offered any of those posts, we conclude that it would have been at that time that the Respondent would have had to have considered whether the duty arose if so whether there were any reasonable adjustments that could be made in order to ensure that none of the arrangements in place with regard to those posts placed her at a substantial disadvantage. In fact, that stage was never reached.

77. We therefore conclude that the Respondent had not failed to take such steps as were reasonable with regard to available posts."

7. By a Notice of Appeal, the findings both as to unfair dismissal and disability discrimination are attacked in many and various ways but in essence the principal criticisms are the following:

(i) Given the findings of fact as to the failure by the Respondent to follow its own capability procedure with no adequate explanation being given to the Employment Tribunal, it was a perverse finding that the dismissal was fair;

(ii) Given that the Respondent had conceded that the Appellant was a disabled person and had been treated less favourably for a reason relating to disability both in being removed from teaching duties and in being dismissed and given that the Employment Tribunal had found that there were defective procedures as regard both the obtaining of the medical evidence and the decision-making bodies not having access to all relevant medical evidence, it was perverse to find that the Respondent's conduct was justified within the meaning of Section 5(1)(b) of the 1995 Act;

(iii) That the Employment Tribunal did not apply the correct tests as regards the Respondent's Section 6 duty to make reasonable adjustments. What is said is that the Employment Tribunal "should have identified what adjustments could have ameliorated the Appellant's disadvantage and then considered whether it would have been reasonable for the Respondent to make them", especially having regard to the terms of Section 6(4) of the Act.

8. Having carefully considered the details of the grounds of appeal as set out in the Notice of Appeal and as amplified in the Appellant's Skeleton Argument and in oral argument on her behalf by Counsel before us at the hearing, we have not been persuaded that the Employment Tribunal fell into error as regards their analysis of the complaint of unfair dismissal under the terms of the Employment Rights Act 1996. The Tribunal clearly identified the departures by the Respondent from its capability procedure and its Occupational Health recommendations and set out clearly why they determined that these did not make the dismissal unfair. Likewise, in our judgment, they properly dealt with the irregularities as regards the obtaining of and consideration of the medical evidence. Their finding that the dismissal was fair in terms of Section 98(4) of the 1996 Employment Rights Act cannot be categorised as perverse.
9. We have also not been persuaded by the detailed arguments put forward on the Appellant's behalf as to perversity in the findings of the Employment Tribunal as to justification under Section 5(1)(b) of the 1995 Act. Once again, we find that the analysis of the Employment Tribunal is full and cannot be impugned.
10. The only aspect of the decision about which we have concerns is that where the Employment Tribunal deal with the duty to make reasonable adjustments in the context of alternative posts.
11. At the time of the Employment Tribunal hearing, there were not available the reports of the cases of Collins v National Theatre [2004] IRLR 395 and Archibald v Fife Council [2004] IRLR 651. We have had the advantage of reading the judgments and speeches in these cases and consider that had the Employment Tribunal been in the same position they would not have concluded as they did in the final sentence of paragraph 74 of the Extended Reasons already referred to and would specifically have considered the various matters referred to in Section 6(4) of the Disability Discrimination Act 1995 before reaching any conclusion as to reasonableness under Section 6(1) and justification under Sections 5(2)(b) and 5(4) of the 1995 Act. We specifically note that in her speech in the Archibald case Baroness Hale of Richmond said:

"The justification defence is special to disability discrimination. It recognises that there may be good reason for less favourable treatment or failings to make the necessary adjustments, but in each case this can only be shown if the reason for it is both material to the circumstances of a particular case and substantial (Section 5(3) and (4)). Furthermore less favourable treatment cannot be justified if an employer has failed to comply with his duty to make adjustments unless it would have been justified even if he had complied (Section 5(5))."

And in paragraph 71 of that speech Baroness Hale said:

"They did not address the question of reasonableness. They did address the question of justification under Section 5(2)(b), but did so without the benefit of the Court of Appeal's decision in Collins v National Theatre [2004] EWCA Civ 144; [2004] IRLR 395 that the justification must be something other than the circumstances which are taken into account for the purposes of Section 6(1). As the Council's redeployment policy is an important part of those circumstances, it should not be independently relevant as a justification under Section 5(2)(b)."

We therefore remit the case to the same Employment Tribunal for consideration of these matters. We appreciate that their conclusions, if different from those in the present decision, may impact on other aspects of that decision, including those in respect of which we have here expressed no concern.