United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0671/05/ZT

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

At the Tribunal

On 13 January 2006

Judgment handed down on 10 April 2006

 

 

 

Before

HIS HONOUR JUDGE McMULLEN QC

MR J C SHRIGLEY

MR D J JENKINS OBE

 

 

 

 

HIGH QUALITY LIFESTYLES LTD APPELLANT

 

 

 

 

 

 

MR SCOTT WATTS RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR RICHARD GREGORY (of Counsel) Instructed by: Messrs Griffith Smith Solicitors 47 Old Steine Brighton East Sussex BN1 1NW
For the Respondent	MR JOHN-PAUL WAITE (of Counsel) Instructed by: Messrs Duncan Lewis & Co Solicitors 1 Kingsland High Street London E8 2JSM

 

 

SUMMARY

Disability Discrimination: Justification

The Employment Tribunal had erred in its construction of direct discrimination under s3A(5) of the Disability Discrimination Act 1995 as amended when it failed to construct a correct hypothetical comparator for the Claimant who was an HIV+ care worker dismissed because of the risk of transmission to users of the Respondent’s health care facilities.  Further, the Tribunal had erred in finding that the Claimant had been treated less favourably when, in the absence of his area manager, his line manager had attended a meeting with him and with his director.  Such disclosure to her was not a breach of confidentiality. 

 

The Tribunal had not erred in its approach to disability related discrimination and to the duty to make reasonable adjustments under s3A(1) and 3A(2) for the Respondent had failed to justify its admittedly less favourable treatment of the Claimant who, following disclosure of his HIV+ status, was suspended and dismissed. 

 

 

HIS HONOUR JUDGE McMULLEN QC

 

1.                  This case concerns the separate duties of a health care provider to make reasonable adjustments for, and not to discriminate against, an employee whose disability consists of his being HIV+. There is also an issue as to how an employer should deal with these matters without breaching confidentiality.

 

2.                  These are the reasons of all three members for the judgment we gave at the oral hearing.  We will refer to the parties as Claimant and Respondent. 

 

Introduction

3.                  It is an appeal by the Respondent in those proceedings against a reserved judgment of an Employment Tribunal sitting over three days at Ashford, Kent (Chairman: Miss V G Wallace) registered with reasons on 5 October 2005.  The Claimant and Respondent respectively were represented, as here, by Mr John Paul Waite and Mr Richard Gregory, of Counsel. 

 

4.                  The Claimant alleged he was discriminated against contrary to the Disability Discrimination Act 1995.  The Respondent accepted that he was disabled, but denied discrimination.

 

The issues

5.                  The essential issues, as defined by the Employment Tribunal so far as is relevant to the appeal, were:

2.1 For a reason which relates to the Claimant's disability has the Respondent treated the Claimant less favourably than the Respondent treated or would treat others to whom that reason does not or would not apply?

2.2 The less favourable treatment relied upon was the Claimant's suspension; the disclosure of his condition to other staff members; his dismissal.

2.3 The Respondent accepted that the dismissal of the Claimant constituted less favourable treatment on these grounds; the issue for the Tribunal is therefore, in respect of the dismissal, and if the other matters are found to be less favourable treatment, has the Respondent shown that the reason for that treatment is both material to the circumstances of the case and substantial?

2.4 If so, does the treatment amount to direct discrimination under section 3A(5) of the Act, in other words, if less favourable treatment has been established by reference to a real or hypothetical comparator, has the Claimant proved facts from which the Tribunal could conclude that the treatment was on the grounds of his disability?

2.5 If so, has the Respondent proved that it did not treat the Claimant less favourably in any sense whatsoever on the grounds of his disability?

2.6 If the treatment does not amount to direct discrimination, was the Respondent under a duty to make reasonable adjustments?

2.7 If so, has the Respondent complied with that duty?

2.8 If they have failed to comply with that duty, would the treatment have been justified even if the Respondent had complied with that duty?

3. The issues for the Tribunal in respect of the claim of failure to make reasonable treatments were as follows:

3.1 Did a provision, criterion or practice, namely, that a care worker for the Respondent company could not be a person who was HIV positive, applied by or on behalf of the Respondent, place the Claimant at a substantial disadvantage in comparison with non disabled persons?

3.2 If so, did the Respondent have the required knowledge about the Claimant as a disabled person?

3.3 If so, has the Respondent taken such steps as it is reasonable to take in all the circumstances in order to prevent the provision, criterion or practice having that disadvantageous effect with particular reference to the provisions of section 188 of the Act?

 

6.                  The Tribunal decided in the Claimant’s favour on liability. The Respondent appeals.  Directions sending this appeal to a full hearing were given in chambers by Burton P.

 

The legislation

7.                  The legal provisions relevant to this case come from the Disability Discrimination Act 1995. This was substantially amended and substituted by Regulations in 2003 which took effect on 1 October 2004 so as to implement Directive 2000/78/EC Establishing a general framework for equal treatment in employment and occupation known as the EU Framework Directive. The events in this case occur either side of that watershed: the alleged breach of the Claimant’s confidentiality, and his suspension, were in August 2004 and he was dismissed on 6 October 2004. Also ministerial Guidance and Codes issued were issued under the Act.  It is conceded that the Claimant is disabled within the meaning of Section 1. He has symptomatic human immune virus infection, known as HIV+.

 

8.                  Section 3A defines discrimination:

“3A. – Meaning of Discrimination

(1) For the purposes of this Part, an employer discriminates against a disabled person if-

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

(3) Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

 

(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances including his abilities, are the same as, or not materially different from, those of the disabled person

(6) If, in a case falling within subsection (1)(a) person is under a duty to make adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty”. 

 

9.                  As can be seen, this consists of what can conveniently be divided into disability-related discrimination (s3A(1)), discrimination by not making reasonable adjustments for a disabled person (s3A(2)), and direct discrimination (s3A(5)). Only the first is qualified by the justification defence. In this case, the suspension, breach of confidentiality and dismissal are all said to be disability-related; and the dismissal alone to be direct discrimination, occurring as it did after the new legislation came into force.

 

10.              The reference in Section 3A(2) is to the separate right, explained in section 4A, arising from an employer’s duty to make what are now by statute called reasonable adjustments.

 

“4A Employers: duty to make adjustments

 

(1) Where

 

(a) a provision, criterion or practice applied by or on behalf of an employer, or

 

(b) any physical feature of premises occupied by the employer, places 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 provision, criterion or practice, or feature, having that effect.

 

(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know-

 

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or

 

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).”

 

In considering whether there has been a failure to comply with a duty to make reasonable adjustments, certain “steps” shall be considered:

“18B Reasonable adjustments: supplementary

(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step”.

 

11.              Examples of what steps it is reasonable to take are given in s18B(2).

 

12.              The forms in which discrimination occurs by employers include dismissal and detriment:

“4(2) It is unlawful for an employer to discriminate against a disabled person whom he employs-

….

(d) by dismissing him, or subjecting him to any other detriment”.

 

It is conceded that the action of suspension and dismissal of the Claimant fall within s4(2) if unlawful discrimination is proved. It was less favourable treatment for a reason related to his disability. So is disclosure of his condition if breach of confidence is shown.

 

13.              The reverse burden of proof applies in this case to all three acts complained of

“17A Enforcement, remedies and procedure

(1 C) Where, on the hearing of a complaint under subsection (1), the complying facts from which the tribunal could, apart from this subsection, conclude in the absence of adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act].”

 

14.              Codes of Practice may be issued by the Disability Rights Commission pursuant to section 53A.  The first of two Codes approved by Parliament came into effect on 1 October 2004. Employment and Occupation includes the following relevant passages (the examples are omitted as they are by para 1.14 merely illustrative of the principles):

“4.7 Treatment of a disabled person is ‘on the ground of’ his disability if it is caused by the fact that he is disabled or has the disability in question. In general, this means that treatment is on the ground of disability if a disabled person would not have received it but for his disability. However, disability does not have to be the only (or even the main) cause of the treatment complained of – provided that it is an effective cause, determined objectively from all the circumstances.

4.8 Consequently, if the less favourable treatment occurs because of the employer’s generalised, or stereotypical, assumptions about the disability or its effects, it is likely to be direct discrimination. This is because an employer would not normally make such assumptions about a non-disabled person, but would instead consider his individual abilities.

4.9 In addition, less favourable treatment which is disability-specific, or which arises out of prejudice about disability (or about a particular type of disability), is also likely to amount to direct discrimination.

4.11 Direct discrimination will often occur where the employer is aware that the disabled person has a disability, and this is the reason for the employer’s treatment of him. Direct discrimination need not be conscious – people may hold prejudices that they do not admit, even to themselves. Thus, a person may behave in a discriminatory way while believing that he would never do so. Moreover, direct discrimination may sometimes occur even though the employer is unaware of a person’s disability.

4.13 In determining whether a disabled person has been treated less favourably in the context of direct discrimination, his treatment must be compared with that of an appropriate comparator. This must be someone who does not have the same disability. It could be a non-disabled person or a person with other disabilities.

4.14 It follows that, in the great majority of cases, some difference will exist between the circumstances (including the abilities) of the comparator and those of the disabled person – there is no need to find a comparator whose circumstances are the same as those of the disabled person in every respect. What matters is that the comparator’s relevant circumstances (including his abilities) must be the same as, or not materially different from, those of the disabled person.

4.15 Once an appropriate comparator is identified, it is clear that the situation described in the example at paragraph 4.8 amounts to direct discrimination:

4.17 The comparator used in relation to direct discrimination under the Act is the same as it is for other types of direct discrimination – such as direct sex discrimination. It is, however, made explicit in the Act that the comparator must have the same relevant abilities as the disabled person.

4.18 It may not be possible to identify an actual comparator whose relevant circumstances are the same as (or not materially different from) those of the disabled person in question. In such cases a hypothetical comparator may be used. Evidence which helps to establish how a hypothetical comparator would have been treated is likely to include details of how other people (not satisfying the statutory comparison test) were treated in circumstances which were broadly similar.

4.19 It should be noted that the type of comparator described in the preceding paragraphs is only relevant to disability discrimination when assessing whether there has been direct discrimination. A different comparison falls to be made when assessing whether there has been a failure to comply with a duty to make reasonable adjustments (see paragraphs 5.3 and 5.4) or when considering disability-related discrimination (see paragraph 4.30).

Focusing on relevant circumstances

4.20  As stated in paragraph 4.14, direct discrimination only occurs where the relevant circumstances of the comparator, including his abilities, are the same as, or not materially different from, those of the disabled person himself. It is therefore important to focus on those circumstances which are, in fact, relevant to the matter to which the less favourable treatment relates. Although, in some cases, the effects of the disability may be relevant, the fact of the disability itself is not a relevant circumstance for these purposes. This is because the comparison must be with a person not having that particular disability

5.20  … it might be reasonable for employers to have to take other steps …

*conducting a proper assessment of what reasonable adjustments may be required

*employing a support worker to assist a disabled worker”.

 

 

15.              Guidance may be issued by the Secretary of State (for Education and Employment) pursuant to section 3.  Statutory regulations were produced on Matters to be taken into account in determining questions relating to the definition of disability in 1996.  It is important to distinguish this Guidance from the Guidance issued by the Department of Health relating to the employment of health care professionals with HIV in 1998 and 2005: HIV Infected Health Care Workers: guidance on management and patient notification DoH, 28 September 2005, described as Best Practice Guidance.  This is not a statutory instrument, nor issued under Section 3 but it is very important in this case. We have not seen the 1998 version. It was the subject of a consultation document for change in Scotland and in England and Wales in 2002, leading to revision in 2005. The relevant passages appear to us to be substantially unchanged from the 2002 draft. Although this draft was not directly seen by the relevant director of the Respondent (Mr Morley) in 2004, its substance is referred to and relied on by its risk assessor, Mr Wiggins, by the Claimant’s consultants Dr Isaac and Dr Evans, by his counsel, and by the officer of the DoH whose evidence was put to the Tribunal (Mr Rayment).

 

16.              It will be of more lasting use if we refer to the 50-page 2005 text, of which the following passages are relied on

“1.3 The guidelines replace the version issued in December 1998, AIDS/HIV Infected Health Care Workers: Guidance on the Management of Infected Health Care Workers and Patient Notification (Health Service Circular (HSC) 1998/226(.  The new edition of the guidelines reflects changes in NHS structures, experience of patient notification exercises and the recommendations of a joint working group of the Expert Advisory Group on AIDS (EAGA) and the United Kingdom Advisory Panel for Health Care on AIDS Workers Infected with Blood-borne Viruses (UKAP), which has reviewed the policy for notifying patients exposed to HIV infected health care workers.

1.4 This guidance continues to endorse the ethical guidance in the statements from the professional regulatory bodies, clarifies the duties of HIV infected health care workers, their medical advisers and employers, and outlines the procedures which should be followed if a patient notification exercise is being considered.

1.5 All health care workers are under ethical and legal duties to protect the health and safety of their patients. They also have a right to expect that their confidentiality will be respected and protected.

1.6 Provided appropriate infection control precautions are adhered to scrupulously, the majority of procedures in the health care setting pose no risk of transmission of the human immunodeficiency virus (HIV) from an infected health care worker to a patient. Employees with HIV could have a compromised immune status and hence be more susceptible to other infections. Employers should take this into account when assessing the possible risks of infection.

1.7 The circumstances in which HIV could be transmitted from an infected health care worker to a patient are limited to exposure prone procedures in which injury to the health care worker could result in the worker's blood contaminating the patient's open tissues. This is described as "bleed-back" in this guidance. HIV infected health care workers must not perform any exposure prone procedures. The majority of health care workers do not perform exposure prone procedures.

3.5 Exposure prone procedures are those invasive procedures where there is a risk that injury to the worker may result in the exposure of the patient's open tissues to the blood of the worker (bleed-back). These include procedures where the worker's gloved hands may be in contact with sharp instruments, needle tips or sharp tissues (e.g. spicules of bone or teeth) inside a patient's open body cavity, wound or confined anatomical space where the hands or fingertips may not be completely visible at all times. However, other situations, such as pre-hospital trauma care should be avoided by health care workers restricted from performing exposure prone procedures, as they could also result in the exposure of the patient's open tissues to the blood of the worker.

3.7 The final decision about the type of work that may be undertaken by an HIV infected health care worker should be made on an individual basis, in conjunction with a specialist occupational physician, taking into account the specific circumstances including working practices of the worker concerned. The occupational physician may wish to consult UKAP”.

 

17.              There is however a change in the approach to risk to patients who bite an infected worker. The 2002 text at para 3.4 had this instead of para 3.5 (above).

“3.4 ….. care of patients where the risk of biting is predictable (e.g. such as with a disturbed and violent patient or a patient having an epileptic fit) should be avoided by health care workers restricted from performing exposure prone procedures”.

18.              The 2005 text, which we infer from Mr Rayment’s email was extant at the time relevant to this case, includes at Annex A considerable insight into this problem.

“5.4 Biting

Staff working in areas posing a significant risk of biting should not be treated as performing EPPs. In October 2003, UKAP considered a review of the available literature on the risk of onward transmission from health care workers infected with blood-borne viruses to patients. The review showed that the published literature on this subject is very scarce. In follow-up studies of incidents involving infected health care workers working with patients known to be 'regular and predictable' biters, there were no documented cases of transmission from the health care worker to the biter. However, where biters were infected, there were documented cases of seroconversion in their victims and the risk of infection was increased in the presence of:

·       Blood in the oral cavity -risk proportionate to the volume of blood;

·       Broken skin due to the bite;

·       Bite associated with previous injury i.e. non-intact skin;

·       Biter deficient in anti-HIV salivary elements (lgA deficient).

Based on the available information, it can only be tentatively concluded that even though there is a theoretical risk of transmission of a blood borne virus from an infected health care worker to a biting patient, the risk remains negligible. The lack of information may suggest that this has not been perceived to be a problem to date, rather than that there is an absence of risk.

UKAP has advised that, despite the theoretical risk, since there is no documented case of transmission from an infected health care worker to a biting patient, individuals infected with blood-borne viruses should not be prevented from working in or training for specialties where there is a risk of being bitten.

The evidence is dynamic and the area will be kept under review and updated in the light of any new evidence that subsequently emerges suggesting there is a risk. However, it is important for biting incidents to be reported and risk assessments conducted in accordance with NHS procedures. Biting poses a much greater risk to health care workers than to patients. Therefore employers should take measures to prevent injury to staff, and health care workers bitten by patients should seek advice and treatment, in the same way as after a needlestick injury”.

 

19.              There is also provision in the DoH Guidance for confidentiality of information relating to a worker, but neither we nor the Employment Tribunal heard submissions on this passage.

 

20.              Whatever the precise status of this material at the time, the Tribunal heard evidence and made judgments on the material presented to it which seems to us to be substantially common ground.

 

The facts

21.              The Tribunal described the parties in their initial relationship as follows:

“7. The Claimant, aged 30 at the time of the Tribunal hearing, was diagnosed as being HIV positive in June 2000. At the time of the hearing his condition was controlled by anti-retroviral combination therapy, although the Tribunal finds that at the time he applied for his job with the Respondent he was not taking any medication for his condition. This was a planned break in medication undertaken in conjunction with his consultant's advice.

8. The Claimant applied for the post of support worker with the Respondent in January 2004. He completed a medical questionnaire (p.25) which did not specifically ask about HIV. In answer to the question "Do you take medicine regularly" he answered "No" which was accurate at that time. To the final question "Do you suffer from any other ailments" he also answered "No". The Claimant told the Tribunal that he did not consider his HIV status to be "an ailment", relying on the definition of "ailment” as a minor health issue. The Tribunal finds that the Claimant sought advice from the Terence Higgins Trust in relation to whether or not he should disclose his condition, and he was told that there was no obligation upon him to do so.

9. The Respondent company provides specialist services to people with learning disabilities, autistic spectrum disorders and those who sometimes present with severely challenging behaviour. They are described as service users. A support worker lives in a residential home with the service users and assists them in daily tasks and supports them with a range of activities. There was no dispute that the service users' behaviour is unpredictable and on occasions support workers are injured by service users.

Extracts from the accident report book in the bundle at pages 30-34b, 41 and 42 demonstrate that on occasions support workers are scratched and bitten, sometimes drawing blood, as well as punched and kicked.

10. The Claimant began work with the Respondent in March 2004. There was no dispute that he enjoyed the job, he performed very well and that his managers thought highly of him. On 16 July 2004 he was promoted to the post of acting shift leader (p.40).

11. Around this time (it is not clear whether this was before or after promotion) the Claimant felt secure enough at work to disclose his condition to the Respondent. He decided to take this step partly because an ex-partner was threatening to reveal his condition, and partly because his consultant had prescribed a new combination of medicines which may have had side effects on the Claimant. He did not anticipate that his disclosure to his employer would have any effect on his job”.

 

22.              The Claimant informed his manager, Ms McCarthy and allowed the Respondent to contact his treating consultant, Dr Isaac.  Dr Isaac described different stages of the Claimant’s condition as involving a high and low virus load.  When considering the risk, he said this:

"In summary, the risk of onward transmission of HIV from occupational exposure is very small, but in the event of injury resulting from exposure when HIV virus is high, post exposure prophylaxis can be offered, although its success rate is not 100%."

 

23.              On 10 August 2004, the Claimant was summoned to a meeting by Mr Morley, a director and Ms MacFadyen, his line manager.  The Tribunal preferred the Claimant’s account of the meeting as follows:

“17. ….Mr Morley also told the Tribunal that he would not consider employing anyone who was HIV positive as a support worker….

18. On balance, the Tribunal accepts the Claimant's version of the meeting on 10 August and finds that Mr Morley told the Claimant that in the light of Dr Isaac's report, the Respondent would carry out a risk assessment, but that it was likely that the Claimant would be considered high risk and that this would lead to the Claimant and the Respondent "parting company". The Tribunal also finds that Mr Morley asked the Claimant if he would agree to his HIV status being disclosed to the local Social Services Department and others who purchased the Respondent's services, and to a memo being issued to all staff informing them that they were working with a colleague who was HIV positive. The Claimant was not prepared to give his consent to this, particularly as no risk assessment had yet been carried out…The Tribunal finds it unsurprising that the Claimant left the meeting on 10 August feeling that he would be dismissed shortly”.

By the time of his suspension, after five months’ employment, he had received on six separate days scratches, superficial abrasions, deep lacerations and a bite from different service users. 

 

24.              On 16 August 2004 he was suspended on the ground of dishonesty regarding the non-disclosure of his medical condition.  The Tribunal was unimpressed by this since it was contrary to the reassurance given at an earlier stage.  A disciplinary hearing was fixed. 

 

25.              The Respondent apparently accepted the Claimant’s consultant’s view that he was low risk, but set up a risk assessment.  The Claimant was not invited to take part in the assessment. 

 

26.              The risk assessment was carried out by Mr Wiggins, a health and safety consultant, but it was not commissioned specifically in respect of the Claimant’s medical condition.  Mr Wiggins’ conclusion is this:

"At this business Occurrences of injuries resulting in broken skin and biting incidents are commonplace with documented cases where bites have required hospital treatment. The reason for a 4/5 severity rating is that with a disease such as HIV the period between infection and full blown Aids is measured in years. Therefore, there remains the possibility of a cure or treatment being developed in the interim that may prevent death or significantly prolong active life. Similar possibilities exist for other infectious diseases."

 

27.              The Tribunal noted that this did not reflect the NHS guidance and appears to have been accepted by Mr Morley uncritically.  He summoned the Claimant to a meeting on 5 October 2005 as to which the Tribunal found:

“35. … The Claimant attended with a colleague, Ms MacFadyen attended with Ms McCarthy. The notes of the meeting (pp 71-73) show that Ms McCarthy opened the meeting by almost immediately stating that the Claimant's position was "untenable" and that his employment would therefore be terminated "based on the independent risk assessment carried out by an independent health assessor". The Claimant was then allowed to read out his notes and there was some discussion about some of the points that he raised. The meeting lasted just under 1 hour.

36. The Tribunal finds that the reason for the Claimant's dismissal was, as expressed by Ms McCarthy and later by Mr Emberson at the appeal hearing, the contents of the risk assessment. Neither of them made reference to the Claimant's doctor's letter as being a reason for dismissal and the Tribunal finds that Dr Isaac's letter simply prompted the risk assessment and that it was not considered any further by the Respondent in assessing potential risks.

37. On balance, the Tribunal found that Mr Morley had decided that the Claimant should be dismissed, and that Ms McCarthy was given the task to convey that decision to the Claimant on 5 October. We find that this is the likely reason that she launched into the decision before the Claimant had an opportunity to put forward his views.

38. ….

39. ….This demonstrates to the Tribunal the very muddled thinking that took place during this episode…”.

 

28.              An appeal was lodged with the managing director, Mr Emberson, including a suggestion that the Claimant’s grievance about this treatment be dealt with at the same time.  The Tribunal found this:

“43. … Mr Emberson had made up his mind about the dismissal before hearing the Claimant’s grounds of appeal…He also goes on to say’ reasonable adjustments have been considered fully’…The Tribunal finds that such paperwork as there was not sent to the Claimant until the Tribunal proceedings began.  In addition, the Claimant asked to see evidence of consideration of reasonable adjustments; none has been provided”. 

 

29.              The appeal was adjourned so the Claimant could send further documents to the Respondent, but on 29 November 2004, at the reconvened meeting, Mr Emberson said “the dismissal still stood”.  The Tribunal found this:

“45. During the course of that meeting, which is recorded as lasting some 19 minutes, Mr Emberson confirmed that he recognised that the risk (of transmission) was small" but because of the behaviour of service users he made the decision to dismiss. He also said ‘any risk at all was not acceptable’ and ‘"even though the risk was negligible there was not other action he could have taken’”.

 

30.              The Tribunal first resolved the issue of confidentiality of information.  It noted that the Claimant had disclosed his condition to Ms McCarthy, his area manager, and had expected that information to travel upwards to senior management.  It did: it went to Mr Morley.  The letter from Dr Isaac was addressed to Ms McCarthy but at the time of its arrival, she was on sick leave and it appears to have been dealt with by Ms MacFadyen, in her taking it to Mr Morley.  Ms McCarthy appears to us to fall within the illustration given by the Tribunal of a breach of confidentiality by “inviting people to meetings to discuss the condition without the Claimant’s consent”.  The Tribunal found that this would not have happened to a comparator with a condition which similarly required to be kept confidential.  The Tribunal does not appear to make a finding that Ms McCarthy breached the Claimant’s confidence by telling the Claimant’s colleague, Mrs McGhee, to whom the Claimant also spoke, about his condition.  The Tribunal said this:

“It is not, however, possible for the Tribunal to say how far that information spread from the Claimant’s disclosure to colleagues and the Respondent’s disclosure”.

We accept Mr Gregory’s submission that this does not amount to a finding that the Respondent, through Ms McCarthy, breached the Claimant’s confidence by a disclosure to Mrs McGhee or, indeed, to any of the Claimant’s colleagues. 

 

31.              On the confidentiality point, the Tribunal decided that the Respondent had failed to prove that its justification was both material and substantial.  

 

32.              On the principal issue, the Tribunal decided as follows:

79. The Tribunal then turned to the question of whether the suspension and dismissal of the Claimant had been justified by the Respondent. The Tribunal were satisfied that the Respondent had not properly considered the information available to them. The Respondent had told the Tribunal that they relied upon the Scottish consultation paper. This would not have been unreasonable, given that its contents are the same or similar to the Department of Health guidance in force at the relevant time, if it had been apparent that the Respondent had actually read that guidance.

However, there was no indication that they had properly taken the contents of the guidance into account. They had not considered whether or not to appoint an occupational physician which seems, from the guidance, to be crucial in the maintenance of the infected health worker's employment, in order to consider reasonable adjustments and so on. The Tribunal was also satisfied that there were flaws in the risk assessment because it was not specific to the Claimant's condition. It was, inevitably, a very generalised risk assessment in respect of all blood borne diseases which in themselves must impact in various different ways and have different levels of risk. At no time was the Claimant involved in that risk assessment and his doctor's report was not properly considered other than to use it as a reason to obtain a risk assessment.

 

33.              Turning to the other issues in the case, the Tribunal decided as follows:

“80. The Tribunal's conclusions on the way in which the Respondent handled the suspension and dismissal lead to an inference that the approach by the Respondent, and Mr Morley and subsequently Mr Emberson in particular, was to find a way to dismiss the Claimant once he had disclosed his condition to them, rather than to explore properly and in detail the ways in which his services might have been retained.

81. From the evidence that we heard, we were driven to the conclusion that the failure in the process may well have been due to the attitude of Mr Morley and Mr Emberson that no risk was acceptable in respect of the Claimant's condition in conjunction with their particular service users. The Tribunal concluded that this constituted a failure to conduct adequate investigations or an adequate assessment of the situation. The Tribunal has reminded itself that it must not substitute its own view as to whether the reason relied upon by the Respondent is material and substantial. In this case, the Tribunal were satisfied that the risk assessment, although it may have been properly conducted, was not directed at the relevant and specific question in respect of the Claimant's condition, that the Claimant's doctor's opinion was not taken into account by the Respondent and the Respondent did not follow the guidance available to it to obtain the opinion of an occupational specialist. On that basis, the Tribunal concluded that the Respondent's response was not the response of a reasonable employer in the circumstances of this particular case and could not be said to be rational. The Tribunal does not (and indeed should not) suggest that the Tribunal would have come to a different decision as to the extent of the risk; the Tribunal has concluded that without a risk assessment properly focused on the Claimant's condition, without input from the Claimant himself into that risk assessment and without an occupational specialist's opinion, it is impossible to say what the outcome would have been. The Tribunal therefore concluded that no reasonable employer would have dismissed without having undertaken such detailed investigations (the test in Williams and Jones above).

82. As the Respondent has therefore failed to justify the less favourable treatment of the Claimant, the complaint of disability-related discrimination succeeds.

84. In constructing a hypothetical comparator, the Tribunal referred to the guidance set out in the Code. We considered whether the comparator, with the same abilities, skills and experience as the Claimant should have a communicable disease, in other words the effect of any condition that they might have would be the same, as had been argued by the Respondent. We concluded that the hypothetical comparator should be a person in exactly the same position as the Claimant without his disability (the wording of section 3A(5)).

85. We then considered whether or not the Claimant had proved facts from which we could conclude that his treatment had been on the grounds of his disability. We noted that he had been promoted on or around the time that he had disclosed his condition and was not immediately suspended. That does not suggest that there was any immediate panic about his condition. That leads us to conclude that the suspension and dismissal of the Claimant was more likely to have been on the grounds of the effect of his condition, in other words, the risk of transmission, than the condition itself. We concluded, however, that there was an inescapable causal link between the disability and the dismissal. The risk of transmission would not have been so crucial had the disability not been HIV. We concluded therefore that it was impossible to separate the condition from the effect of the condition in this particular case.

86. As the Claimant had proved facts to show that he was dismissed because of the effect of his condition, we" could conclude that he had been dismissed on the grounds of his disability. The Respondent had not proved that the suspension and dismissal of the Claimant was not in any sense whatsoever related to the grounds of the disability. The treatment therefore also constituted direct discrimination. Therefore, even if the Respondent had been able to justify the disability-related treatment, the claim would have been successful by virtue of the provisions of section 3A(4) and (5).

87. On the separate claim of failure to make reasonable adjustments (the issue at paragraph 3 above), the provision, criterion or practice relied upon by the Claimant was the requirement that no care worker in the Respondent's organisation should have HIV. The Tribunal concluded that there was such a provision, that was clear from the evidence of Mr Morley and Mr Emberson.

91. The Respondent also pointed to the risk assessment that had been carried out. However, the Tribunal concludes that the risk assessment was flawed, as set out above, and therefore did not constitute a reasonable step in the circumstances. Had the Respondent obtained specialist advice, as advised in the Department of Health guidance, and had that occupational specialist undertaken the risk assessment and discussions been held with the Claimant about possible reasonable adjustments, then the Respondent would have been on stronger ground. As none of that had occurred, the Tribunal concluded that the employer had not taken such steps as were reasonable in the circumstances. That complaint also succeeds”.

 

The Respondent’s submissions

34.              It was submitted on behalf of the Respondent that the Tribunal had failed to carry out the correct comparison.  In considering the circumstances relevant to making the comparison, it was important to establish whether or not the Claimant and the hypothetical comparator shared the same circumstances. 

 

35.              One of the circumstances was the risk of transmission of HIV to a third party.  The effect of the disability i.e. being HIV positive is a relevant circumstance since it has an effect on service users of the Respondent.  It was not put to relevant witnesses of the Respondent that they would have behaved differently had circumstances been different.  As Mr Gregory put it, in a comparison required by the statute it is necessary to consider the relevant circumstances with the HIV “label” removed so as to reveal whether or not the treatment of the Claimant was on the ground of his being HIV, or on the ground of the effect of his condition and, in either case, liability would be established.  Since the Tribunal had established that the treatment of the Claimant was on the ground of his being HIV+, the Tribunal had failed to establish the necessary causal link between the condition of being HIV+ and the risk of transmission, as compared with the risk of transmission of any other life-threatening disease to service users.  Thus, the Tribunal erred in upholding the Claimant’s case that there had been unlawful discrimination. 

 

36.              As to the claim of discrimination based on the failure to discharge the duty to make reasonable adjustments, it was contended that a correct application of s3A would yield that there had been a proper risk assessment and that there were no adjustments which could have been made.  The risk assessment had indicated that there was a predictable risk of a service user biting the Claimant and thus becoming infected by HIV.  The Tribunal had failed to consider what would happen had steps been taken pursuant to the duty under s3A(6).  The only conclusion was that nothing further could be done.

 

37.              As to confidentiality of information, the Tribunal had failed to give reasons for its conclusion. 

 

The Claimant’s case

38.              It is accepted by the Claimant that the only substantial point in the case was the appeal on the ground of direct discrimination.  If there were an error in this respect, it did not affect the Tribunal’s analysis of disability-related discrimination.  It was conceded that the correct comparator for the hypothesis under the statute was a person who was at the same risk of transmission of a life-threatening disease and with the consequences to a service user of that risk.  As to this, as Mr Emberson had concluded at the appeal, the risk was negligible.  The Respondent had adopted a prejudicial approach which led to its taking a severe course of action, based on a stereotypical view.  Mr Waite accepted that the judgment of the Tribunal was not well-reasoned, and on this point, if there were an error of law, the issue should be sent back to the Employment Tribunal for it to consider the proper comparator. 

 

39.              As to the claim based on the failure to make reasonable adjustments, the Tribunal had accurately reflected that this point had been made by Mr Morley for the first time in his evidence before the Tribunal.  He had not considered it at the relevant time. 

 

40.              In respect of the claim based on disability related discrimination, the approach required was that of the Court of Appeal in Jones v The Post Office [2001] IRLR 384 CA and Williams v J Walter Thompson Group Ltd [2005] IRLR 376.  This essentially requires the application of the unfair dismissal test (see paragraphs 26 and 28).  It had not been contended by the Respondent that the Tribunal had misunderstood this approach.  The Respondent had failed to engage a medical expert, which is crucial in the light of the relevant DoH guidance.  The question is: would a reasonable employer have gone beyond the guidance so as to require the dismissal of a health care worker performing the task required of the Respondent?  The Tribunal’s finding as to justification was correct.

 

Discussion and conclusions

41.              We will deal first with the simple issue of breach of confidentiality.  We uphold the Respondent’s submissions that the Tribunal has not demonstrated that the Claimant proved his case of breach of confidentiality.  We accept that when a correct comparison is made, it is a detriment for a person’s condition to be disclosed to others when a person who does not have that disability would not have had the condition disclosed.  Put simply, as at the period shortly after the disclosure to Ms McCarthy, pending the interview with Mr Morley, would there have been disclosure of a condition similar to HIV to others, or to other managers?  We are unable to disturb the Tribunal’s finding of fact on this point.  However, the Tribunal has not disclosed its reasoning for the conclusion of unlawful discrimination and so has erred.  Ms McCarthy, the area manager, was away on sick leave when Dr Isaac’s report came to the Respondent.  It is not suggested that it was improper for Ms MacFadyen to have brought this to the attention of Mr Morley.  We do not think it wrong for us to fill the gap by finding that a letter, not marked confidential, sent to the Claimant’s area manager, opened by his line manager, Ms MacFadyen, does not indicate a breach of confidentiality.  We consider that the Tribunal erred in holding that Ms MacFadyen fell within the scope of the Tribunal’s view that the Respondent was “inviting people to meetings to discuss the condition without the Claimant’s consent”.  Since he agreed that Ms McCarthy should deal with the matter, and knew that it would be handed upwards i.e. to Mr Morley, and that an open letter was written to Ms McCarthy by Dr Isaac, Ms MacFadyen’s attendance as his line manager in place of Ms McCarthy at the meeting with Mr Morley was not a breach of confidentiality, it follows that he suffered no detriment as a result of her attending the meeting and therefore there is no breach of the statute.  We substitute our view for that of the Tribunal’s on the basis of the material which was before it.

 

42.              As to the discussion of Mrs McGhee’s role, we hold that the Tribunal, by its finding (cited at 30 above) has held that the Claimant failed to prove his case.  We do not accept the contention of Mr Waite that there is a clear finding that there was disclosure to Mrs McGhee.  After all, the Claimant spoke to Mrs McGhee and it was for him to put forward material upon which it could be held that disclosure of his condition was made by the Respondent: see the facts in Webster v Brunel University cited in Igen Limited v Wong [2005] ICR 931 CA.  While paragraph 40 of the Tribunal’s reasons relate to its findings in respect of Ms MacFadyen, which include a finding of breach of confidentiality, they do not relate to such a finding in respect of the leakage of information to Mrs McGhee by the Respondent.  This point did not form part of the Notice of Appeal, yet it was argued on appeal and was the subject of a response in the Skeleton Argument on behalf of the Claimant.  We consider it properly was not a finding by the Tribunal and, therefore, concentrating solely on the involvement of Ms MacFadyen, we hold that there was no breach of confidentiality and thus no discrimination. 

 

Direct discrimination

43.              Three challenges are made to the findings of fact by the Employment Tribunal which are said to be perverse.  The bar is raised high against those seeking to make such arguments: Yeboah v Crofton [2002] IRLR 634 CA.  An overwhelming case must be made to show that the Tribunal erred.  First, while it is accepted that the Tribunal erred in fact in holding that it was not clear whether the Claimant was promoted before or after he made his disclosure, this knowledge, prior to the receipt by the Respondent of a letter by Dr Isaac, is insignificant.  The second criticism has more force.  It must be borne in mind that the issue under s3A(5), as applied to this case was whether the Claimant was suspended and dismissed because of his condition i.e. being HIV+, or because of the risk of transmission of that condition to others.  We accept the submission of Mr Gregory that the Tribunal’s findings at paragraph 39 and 85 are inconsistent.  Paragraph 39 is expressly in terms that the Respondent “was more concerned about the Claimant’s condition than the risk of transmission” and paragraph 85 is the conclusion that “the suspension and dismissal…was more likely to have been on the grounds of the effect of his condition, in order words, the risk of transmission, rather than the condition itself”.  In our judgment, these findings acquit the Respondent of direct discrimination under s3A(5). 

 

44.              We also considered that the third criticism of the Employment Tribunal’s reasons has substance.  This concerns the understanding and application of Dr Isaac’s letter in the decision making process.  It is plain that Mr Morley considered not just the risk assessment, but also the letter from Dr Isaac and his evaluation of the risk posed by the Claimant to others in the light of Dr Isaac’s report (see paragraphs 18 and 22).  We thus uphold two of the three points made by the Respondent that the judgment in respect of 3A(5) (direct discrimination) was perverse. 

 

45.              It may therefore seem unnecessary to deal with the dispute about the application of s3A(5) but lest we are wrong in relation to the previous submissions, we will decide it.  The contention is that the Tribunal misapplied the statutory test.

 

46.              The Tribunal had correctly identified direct discrimination under s3A(5) as an issue.  Having found in favour of the Claimant on disability-related discrimination, it “nevertheless went on” to consider direct discrimination.  Treatment of a person “on the ground” of his or her disability is more exact and narrower in scope than treatment “for a reason which relates” to the disability.  The treatment here is diagnosed as the dismissal.  The first question is the identity of a comparator.  No actual comparator was named and so the Tribunal correctly set about constructing a hypothetical comparator, in accordance with paragraph 4.1.3 of the code.  The comparator may be, but need not be, the same comparator as is envisaged for the purpose of disability-related discrimination.  For example, for direct discrimination, the comparator may be a person who does not have the Claimant’s disability, and may not have a disability at all.  The comparator might have a condition which falls short of the kind of impairment required to satisfy s1 of the Act.  This is because s3A(5) focuses upon a person who does not have “that particular disability”.  The circumstances of the Claimant and of the comparator must be the same “or not materially different”.  One of the circumstances is the comparator’s “abilities”, but since this is prefaced by “including”, it follows that more circumstances are relevant than simply the comparator’s abilities.

 

47.              The exercise is one of comparison for only then can there be a judgment that the treatment of one was “less favourable” than the treatment which would be afforded to the other. 

 

48.              The error which the Tribunal made in paragraphs 84 and 85 of its reasons was in failing to impute relevant circumstances to the hypothetical comparator.  The circumstances were not, as the Tribunal found, that the comparator should have a communicable disease.  Assuming, as the Tribunal correctly did, that the comparator has the same “abilities, skills and experience”, the comparator must also have some attribute, whether caused by a medical condition or otherwise, which is not HIV+.  This attribute must carry the same risk of causing to others illness or injury of the same gravity, here serious and possibly fatal.  If the Tribunal found that the comparator would have been dismissed, then the Claimant has not been less favourably treated.  The facts which it is necessary for the Claimant to have proved, in order to shift the burden of proof to the Respondent, is not only a workable model for the hypothetical comparator but also some evidential basis upon which it could be said by the Tribunal that the comparator would not have been dismissed.  With respect, the Employment Tribunal failed to do this, as is seen by paragraph 85. 

 

49.              We accept the submission that the Tribunal in this paragraph seems to consider that if the Claimant could show that his treatment was on the grounds of his disability, he would necessarily prove direct discrimination.  But the missing element is that the treatment was less favourable. Assuming, as the Tribunal found, that the reason for the dismissal was the risk of transmission and not simply that the Claimant was HIV+, the result of such a causal analysis is surprising.  For example, a surgeon with hepatitis, and a dentist with tuberculosis, suspended because of the risk of transmission, would be able to show that but for their having the disease, they would not be at risk of transmission, and would not have been suspended.  Nevertheless, on the Tribunal’s one-stage analysis, direct discrimination would be proved because the suspension was causally connected to the disease.  This is why the second, comparative, stage is so important.  Justification cannot be raised for the purpose of direct discrimination.  If the evidence showed that medical practitioners would be suspended if they had such a disease, then neither practitioner with their own particular disability could say that the suspension involved less favourable treatment. 

 

Disability-related discrimination

50.              We agree with the Claimant’s submission that, given the Tribunal’s finding in respect of disability-related discrimination, its finding on direct discrimination is of limited significance.  It must be borne in mind that the Tribunal made findings of disability-related discrimination independently of its findings in relation to the duty to make reasonable adjustments.  The Notice of Appeal, and Mr Gregory’s Skeleton Argument are based on the premise (for the purpose of this stage of the argument) that the Tribunal had correctly found that there was a breach of the duty to make reasonable adjustments.  The challenge is therefore to the way in which the Tribunal approached the issue of justification.  Although Mr Gregory in his Skeleton Argument criticises the Tribunal for “the illogical order in which it has reached its conclusions”, it is clear to us that it first dealt with disability related discrimination, and whether it was justified and then went on separately to consider the duty to make reasonable adjustments. 

 

51.              We accept that the threshold for justification is low: H J Heinz & Co Ltd v Kenrick [2000] IRLR 144.  The word “material” in s3A(3) shows the quality of the connection between the employer’s reason and the case in question and there must be a reasonably strong connection:  Jones v Post Office [2001] IRLR 384 per Arden LJ at paragraph 37.  Similarly, the word “substantial” means that “the reason for the discrimination must carry real weight and thus be of substance”: Jones (above) at paragraph 39.  Further, Arden LJ put it at paragraph 41

“They are not entitled to find that the employer's reason for the discrimination was not justified simply because they take the view that some conclusion, other than that to which the employer would have come came, would have been preferable. Nor can they conclude that justification has not been shown simply because they entertain doubts as to the correctness of the employer's conclusion. If credible arguments exist to support the employer's decision, the employment tribunal may not hold that the reason for the discrimination is not 'substantial '. If, however, the employers reason is outside the band of responses which a reasonable employer might have adopted, the reason would not be substantial.  In short, so far as the second limb of section 5(3) of the 1995 Act is concerned, justification is shown provided that the employer's reason is supportable.”

 

52.              We reject the criticism that the Tribunal substituted its view for that of the Respondent.  Applying what might be described as an unfair dismissal approach to this issue, the Tribunal plainly decided that the Respondent did not act reasonably because it failed to carry out a proper investigation or adequate risk assessment of the situation created by the Claimant’s condition.  The risk assessment actually carried out, and the documentation actually considered by the Respondent, provide in our judgment a sound basis for the Tribunal’s conclusions which must be ones of fact, upon that material.  Since the Tribunal gave itself a correct direction on the statute and on the authorities, its appreciation of whether the Respondent justified its treatment as being both material and substantial was a matter of fact for it. 

 

Reasonable adjustments

53.              The Tribunal covered much the same territory in its separate approach to the claim that the Respondent had failed to carry out reasonable adjustments pursuant to s3A(2).  We accept Mr Gregory’s submission that the Tribunal did not accurately define for the purposes of s4A(1) what was the “provision, criterion or practice” which was the subject of criticism.  It decided that it was “a requirement that no care worker…should have HIV”.  Mr Gregory submitted:

“It would be more clearly defined as a requirement that a support worker should not pose a risk of transmitting a serious medical condition (such as HIV) or causing injury to service users and/or other employees.”

We will gratefully adopt that clarification, and will not condemn the Tribunal for making an error of law. 

 

54.              It follows from the Respondent’s concessions that that this provision did place the Claimant at a substantial disadvantage in comparison with a person who was not HIV+.  It thus invoked the duty of the Respondent to take reasonable steps.  The Tribunal went along with the Respondent to some extent.  It is plain (from paragraph 90) that had the Respondent produced evidence that it had considered other jobs for the Claimant.  That might have been a factor, but no detailed assessment of this took place.  Secondly, no specialist advice pursuant to the DoH Guidance had been obtained about possible adjustments.  The finding therefore that “none of that had occurred” was a finding of fact open to the Tribunal to make and appears to us to have been correct on that material.  We cannot see that the Tribunal is open to criticism for having made its own assessment and hold that it discharged its duty to make an objective assessment of the steps reasonably required: Smith v Churchill’s Stairlifts plc [2006] IRLR 41 at paragraph 44 to 45.  Since it was the Respondent’s case that it had considered properly all relevant adjustments, the Tribunal’s finding to the contrary is a sufficient finding for the establishment of liability. 

 

Result

55.              The Tribunal’s finding that the Respondent was liable for disability-related discrimination by breaching the Claimant’s confidentiality is set aside.  Although this ground was based on a “no reasons” challenge, and it would be usual to send the matter back for reasons, it seems to us that in the light of the account we have given above, we hold that the Claimant has not produced facts from which the Tribunal could conclude that the Respondent acted unlawfully when Ms McGhee became aware of the Claimant’s condition.  If we are wrong about that, and the burden of proof shifted to the Respondent to provide an explanation, we consider that the Respondent would be likely to establish that the Claimant was not less favourably treated than a person who was not HIV+ when, in the absence on sick leave of his area manager, his line manager attended the meeting with the director. 

 

56.              The finding on direct discrimination relating to the dismissal is set aside and the Claimant’s case on this ground is dismissed.  To the extent of the two foregoing points, the appeal is allowed.  Otherwise the appeal, on disability-related discrimination and failure to make reasonable adjustments, as applying to the suspension in August 2004 and the dismissal in October 2004 is dismissed. 

 

57.              We would like to thank both Counsel for their very helpful oral and written submissions.