United Kingdom Employment Appeal Tribunal

APPEARANCES









 

For the Appellant	MS JOANNE CLEMENT (of Counsel) Instructed by: Messrs White & Case Solicitors 5 Old Broad Street LONDON EC2N 1DW
For the Respondent	MR PAUL EPSTEIN (One of Her Majesty's Counsel) Instructed by: Disability Rights' Commission Legal Services 2nd Floor Arndale House The Arndale Centre MANCHESTER M4 3AQ





SUMMARY

The Appellant is a qualifying body, subject to s. 14 of the Disability Discrimination Act. The Tribunal found that it had failed to make a reasonable adjustment in the arrangements it made for sitting an examination. In so doing the Tribunal misdirected itself on certain aspects of law. However, the EAT held that these directions were not material to their conclusion. Their findings were such that it was plain that they would have found a breach of the duty even had they directed themselves properly.

Observations on the burden of proof in reasonable adjustment cases.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. Ms Latif is registered blind and is a disabled person within the meaning of the Disability Discrimination Act 1995.
2. In September 2004 she became a member of Project Management Institute ("PMI"), the appellant to this appeal, and she registered to take the Project Management Professional (PMP) credential examination in May 2005. PMI is a not for profit corporation, based in Pennsylvania, USA. It is a qualifications body within the meaning of s 14 of the 1995 Act, conferring a project management qualification.
3. Ms Latif wanted certain adjustments to be made to facilitate her ability to prepare for and take the examination. Specifically, she sought accommodations in the examination arrangements. She made certain suggestions as to how this might be done. She asked that she be allowed to take the examination on her own laptop computer in the Examination Centre or, alternatively, that her screen reading software should be installed in the Examination Centre computer. She asked for a reader to support her in order to explain diagrams.
4. Some adjustments were permitted with respect to her taking the examination. PMI allowed a reader/recorder and gave her twice the usual time to sit the examination. She was not, however, allowed to take in her own computer. She passed the examination.
5. Nonetheless, she lodged three complaints of disability discrimination against PMI. Two of these complaints, unrelated to taking the examination itself, were rejected by the Tribunal and are no longer being pursued; it is not necessary to make any further reference to them. The third complaint, however, was upheld.
6. The successful complaint alleged that PMI had failed to make reasonable adjustments in relation to the arrangements which they had made for her sitting the PMP credential examination, notwithstanding that they had made some adjustments. The Tribunal found that this failure constituted a breach of ss14A and 14B of the Disability Discrimination Act 1995. PMI now appeal against that conclusion.
7. Ms Latif, who is supported by the Disability Rights Commission, accepts that in part the reasoning of the Tribunal was defective, but asserts that its conclusion was nonetheless properly reached on the basis of legitimate reasoning.
8. The aspect of the reasoning where Ms Latif accepts that the Tribunal erred was in applying the principle of law established in the case of Mid Staffordshire General Hospitals NHS Trust v Cambridge [2000] IRLR 566. In that case the EAT held that there was a failure to make a reasonable adjustment, and therefore a breach of the 1995 Act, if a respondent failed to carry out a proper assessment of a claimant's situation so that it could properly determine what was required to overcome the disadvantage suffered by the claimant.
9. In the later case of Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 (Elias P presiding) the EAT held that the Mid Staffordshire case wrongly stated the law and that the failure to carry out an assessment did not of itself constitute a failure to make a reasonable adjustment. If the employer makes such adjustment as in fact is reasonable, then whether that is achieved by chance or even in ignorance of the relevant legal duty, there is no breach of the law even although there was no assessment.
10. The Court of Appeal has not yet resolved which decision is correct. The point arose in Surrey County Council v Hay [2007] EWCA Civ 93 but in that case both parties sought to contend that Tarbuck was correct and given that there was no adversarial argument, the Court of Appeal felt that it would be inappropriate to express any view about the matter.
11. In this case Tarbuck was apparently reported the day before closing submissions were made to the Tribunal. However, the Tribunal chose (without referring to it) not to follow that decision. At that stage Ms Latif was contending that Mid Staffordshire was correct. Both parties now accept that Tarbuck is good law, and that is the premise on which this appeal will be determined.

The relevant legislation

12. Section 14A(1) provides, so far as is material:

"It is unlawful for a qualifications body to discriminate against a disabled person –

(a) in the arrangements which it makes for the purpose of determining upon whom to confer a professional or trade qualification…

13. Section 14B(1) then states:

"Where –

(a) a provision, criterion or practice, other than a competence standard, applied by or on behalf of a qualifications body; or

… places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the qualifications body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice, or feature, having that effect."

14. A statement of some of the factors relevant to assessing whether an adjustment is reasonable, and examples of the content of the duty to make reasonable adjustments, are provided by s18B(1) and (2) respectively. Many of the examples are only applicable in the employment context, but not all.
15. Section 18B(1) is as follows:

"(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 that step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking."

16. The only potentially relevant examples of the kind of adjustments that might be found in a non-employment context, and which are expressly mentioned in s 18(B(2), are as follows:

(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision or other support."

17. A material provision in the context of this appeal is s17A(1C) which contains a provision about burden of proof. It states:

"Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an 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."

18. Finally, s 53A(8) deals with the obligation to observe Codes of Practice which are produced by the Disability Rights' Commission. If a provision in a Code is relevant to any issue before a tribunal, it must be taken into account, although breach of the Code is not of itself unlawful. Certain provisions of the Code, potentially relevant to this case, are set out below.

The Tribunal's decision

19. The respondent accepted that its examination arrangements fell within s14(A)(1) amounting to arrangements for the purpose of determining on whom to confer the particular professional qualifications. It was also conceded that the rules which would normally apply operated as a provision criterion or practice which put the claimant at a substantial disadvantage in comparison with the non-disabled.
20. The issue was simply whether the respondent had taken all reasonable steps in the circumstances to prevent Ms Latif being placed at that substantial disadvantage.
21. PMI contended that the steps they had taken, namely the provision of a reader/recorder and allowing double time to take the examination, were reasonable and sufficient. They submitted that this was supported by the fact that Ms Latif passed the examination at her first attempt. They contended that the adjustments suggested by the claimant herself were unnecessary, unduly costly, posed a potential security risk, and gave rise to a real risk of cheating.
22. The Tribunal accepted that these were indeed "reasonable and justified objections" whilst observing that they may have been objections identified ex post facto rather than at the material time.
23. However, in the course of the hearing a new adjustment was identified by Mr Epstein QC, counsel for Ms Latif. It was put to witnesses for PMI and was the subject of submissions to the Tribunal by both counsel. It had never been suggested at any earlier stage that it might be a solution to the objections which PMI had identified.
24. The Tribunal concluded that it was an adjustment that ought reasonably to have been made. The nature of the adjustment was proposed as follows:

"……the difficulties and dangers are largely, if not completely, overcome by the suggested alternative, that of taking the exam on a stand alone computer at a Test Centre, on to which computer the exam questions had been entered in Word format, and with JAWS software installed. The costs involved in that process can properly in our view be described as modest, involving the transportation (perhaps) of a computer to the Test Centre, the time involved in installing Word and the exam onto the machine, and that involved in an appropriate individual marking the claimant's answers (as happens when a paper-based exam is taken). JAWS could be installed and uninstalled using the claimant's token, as Mr Christopherson did for the purposes of his report. Since it was confirmed that Thomson Prometric have an existing licence to use Word, we do not believe any additional license fee arises. Overall, it is difficult to see how the costs involved could amount to more than a few hundred pounds; to be compared with the actual costs incurred by the respondent in the claimant sitting the exam of US$495."

25. The Tribunal observed that had this adjustment been carried out, it would have significantly reduced the disadvantage and would indeed have also reduced the time which Ms Latif would have had to have been allowed to do the examination. They recognised that there would still be difficulties in dealing with diagrams but noted that this was a matter of relative unimportance since proportionally very few questions involved diagrams. In any event, the questions could have been selected so that Ms Latif was given questions involving only relatively straightforward diagrams. This would not, the Tribunal found, have given Ms Latif an unfair advantage.
26. Ms Latif had contended before the Tribunal that the PMI had proved to be insufficiently flexible in dealing with potential adjustments; they had followed their own previous practice when catering for blind examinees but did not listen to any suggestions from her or carry out any realistic assessment of her particular situation. It was also contended - although the Tribunal rejected this - that some adverse inference could be drawn from the fact that none of the PMI staff had any detailed knowledge or training in the operation of the DDA.
27. The Tribunal essentially accepted these criticisms. They remarked that PMI had treated the blind as a generic class rather than focusing on Ms Latif's individual needs. They did identify certain facts which supported that conclusion but it is not necessary to record them here.
28. The Tribunal placed significant weight on this factor when determining that the adjustment would have been reasonable. PMI contended that it was not reasonable to expect them to adopt this proposal since it had only emerged in the course of the Tribunal hearing itself. The Tribunal dealt with that submission as follows (para 5.2.13):

"Of course, it should be borne in mind that the "stand alone" computer suggestion was never raised in terms by the claimant at the relevant time. It may be objected that the respondent should not be liable for, or vulnerable to, clever yet hypothetical adjustments suggested by her Counsel. We do not consider that would be fair criticism. First, as noted, the onus is not on the claimant to make suggested adjustments at the relevant time; rather on the respondent to carry out a proper assessment. Secondly, we think that, had the respondent listened carefully to what the claimant was requesting and conducted a proper assessment, such a scheme, or something similar might reasonably be expected to have emerged, perhaps with a Reader to help with diagrams and provide back-up in the event of technical problems as the claimant originally suggested. It is worth bearing in mind that, as early as 25 January 2005, Ms Reekmans on behalf of the respondent at least flagged up the possibility of the claimant's software being installed on a Test Centre computer and that the claimant throughout indicated her strong preference for taking the exam by means of a computer that she operated, rather than via a Reader/Recorder. Had the respondent been willing to engage with the claimant's expressed needs, rather than "holding the line" on what was/was not allowed, we consider it likely that this scheme, or something similar, would have resulted."

The grounds of appeal

29. Ms Clement, counsel for PMI, has identified a number of distinct grounds of appeal. First is the misdirection, in the light of the Tarbuck case, that PMI was under a legal duty to carry out a proper assessment. It is submitted that this infected the Tribunal's conclusions.
30. Then there are allegations that the Tribunal failed properly to take account of three matters: the first was the fact that PMI is a qualifying body with more limited obligations to effect adjustments than an employer; the second was that the proposed adjustment had never been suggested by Ms Latif herself; and the third was that in providing Ms Latif with a reader, PMI had complied with a specific adjustment identified in the Code of Practice. A further complaint was that the Tribunal, did not refer to this fact at all. Finally, it is alleged that the Tribunal wrongly placed the burden of proof upon PMI to show that they had not made reasonable adjustments and that this again led the Tribunal to a false conclusion.
31. Apart from the admission with respect to the Tarbuck case, Ms Latif denies that the Tribunal was in error. She also adds, however, that even if the Tribunal did err in its approach to the burden of proof, it was of no consequence in the circumstances of this case.

Misdirection as to the duty to carry out an assessment.

32. Ms Clement says that the Tribunal's error, as it is now conceded to be, had a material impact on its analysis with respect to whether adopting the proposed new arrangement would constitute a reasonable adjustment. It was part of the reasoning which led the Tribunal to conclude that no reasonable adjustment had been made.
33. It is true that reliance on Mid Staffordshire was one of the factors specifically identified by the Tribunal, as the passage from the Tribunal's judgment, reproduced in para 26 above, makes clear. However, we accept the submission of Mr Epstein that the Tribunal would clearly have reached the same conclusion independently of that factor.
34. The Tribunal found that PMI had acted unreasonably in adopting an inflexible approach without adequately listening to what Ms Latif had to say. They also found - and this in our view is fundamental to their reasoning - that the proposed adjustment, or something like it, would have emerged had proper consultation occurred. In our judgment that was a sufficient basis on its own to justify its conclusion that there had been no reasonable adjustment in the circumstances of this case.
35. Mr Epstein submits, and we agree, that it is a good example of a situation envisaged by the EAT in Tarbuck (para 72), namely where a failure to carry out a proper assessment, although it is not a breach of the duty of reasonable adjustment in its own right, may well result in a respondent failing to make adjustments which he ought reasonably to make. A respondent, be it an employer or qualifying body, cannot rely on that omission as a shield to justify a failure to make a reasonable adjustment which a proper assessment would have identified.

Failure to take account of relevant factors.

36. Ms Clement makes three related submissions. First, she contends that the Tribunal failed to give proper recognition of the fact that PMI was a qualification body and therefore owed far less extensive duties than would be imposed on a typical employer. PMI was not concerned with the continuing relationship with an employee but a one-off interaction with a potential candidate seeking qualification. This, says Ms Clement, is a material circumstance when judging reasonableness. We agree that it is: s18A(1)(f) of the 1995 Act says in terms that the nature of a body's activities is relevant in that context.
37. However, we are equally satisfied that the Tribunal was fully cognisant of that fact in this case. They plainly recognised that PMI was a qualification body. No doubt the range of its activities, and therefore the potential scope of adjustments, would be much more limited than would be required of an employer. However, here the Tribunal was focusing on the very function which this qualification body does undertake, namely the assessment of candidates by examination.
38. A second alleged error is that the Tribunal failed to give any weight to the fact that Ms Latif, a well-educated and articulate woman, had not herself been able to identify any appropriate adjustment beyond those taken by the respondent. Ms Clement accepts that there was no legal duty on her to do so (see Cosgrove v Caesar and Howie [2001] IRLR 653) and that in an appropriate case it is open to the Tribunal to find that there is a failure to make a reasonable adjustment even though the suggested adjustment was not made at the time by a claimant. However, she says that it was highly relevant in this case and not specifically referred to by the Tribunal.
39. Again, the short answer here, in our view, is that the Tribunal was plainly aware of that fact. It dealt expressly with the case on the basis that the adjustment which it found ought to have been made was never suggested by Ms Latif and emerged only during the course of the hearing.
40. We agree with Mr Epstein that in reality both these grounds really mask a perversity challenge. That is, however, a very difficult to sustain as the well known case of Yeboah v Crofton [2002] EWCA Civ 794 IRLR 634 indicates. That test is nowhere near being satisfied here.
41. A third related ground is the alleged failure to refer to a particular paragraph of the Code of Practice. This is para 5.1(2) of the Disability Rights' Commission's Code which gives the example of the provision of a reader is a reasonable adjustment for a visually impaired person.
42. It is true that the Tribunal did not expressly refer to that paragraph of the Code, but it is equally clear that the paragraph had been drawn to the Tribunal's attention, and the fact that a particular matter is not mentioned in a tribunal decision does not mean that it was not taken into account: see Retarded Children's Aid Society Ltd v Day [1978] 1 WLR 763 at 768, 769. In any event, the Tribunal did expressly refer to that part of s 18(2)(B) which identifies the provision of a reader as a potentially reasonable adjustment, so it plainly had the point firmly in mind.
43. Moreover, the Code - and indeed s18(1)(b), merely identify certain reasonable adjustments. Neither is suggesting that no further step need be taken in any circumstances. The Tribunal was no doubt aware that PMI had complied with this obligation, but it was entitled to conclude that it was not in the circumstances all that could reasonably have been done.

Burden of Proof

44. We turn to the final ground. Ms Clement submits that the Tribunal erred in its approach to the burden of proof. This was specifically considered by the Tribunal who were persuaded by Mr Epstein that the proper approach was as follows (para 4.11):

" (a) Has the claimant proved facts from which it could be inferred that any provision, criterion or practice has placed her at a substantial disadvantage? If so,

b) Has the respondent on cogent evidence proved that

(i) there was no such provision, criterion or practice, or

(ii) the claimant was not at a substantial disadvantage; and

(iii) that there were no further or other steps that it could reasonably have taken in order to reduce or eliminate any such disadvantage?"

(Mr Epstein accepts that the word 'and' underlined in that paragraph must be an error: even on his approach, it ought to be an 'or'. This is because the duty to make an adjustment does not arise if the other two conditions are not satisfied.)

45. We observe in passing that we very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice, or demonstrating the substantial disadvantage. These are simply questions of fact for the tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the claimant. These are not issues where the employer has information or beliefs within his own knowledge which the claimant cannot be expected to prove. To talk of the burden shifting in such cases is in our view confusing and inaccurate.
46. In any event, whether that is so or not, the effect of this formulation is to place the burden of proof firmly on the respondent at all stages to show that no reasonable adjustment or further adjustment should be made.
47. Ms Clement submits that this is an incorrect application of the burden of proof provision as interpreted in the well known case of Igen v Wong. She accepts, as we have said, that there is no obligation on a claimant to suggest an adjustment at the material time, but contends that a tribunal can only properly find that there has been a failure to comply with this duty if it can identify at least by the time it gives its decision what adjustments the employer should have made in the circumstances.
48. She submits that merely establishing that an arrangement (to use the general word) places a disabled person at a substantial disadvantage does not amount to a sufficient prima facie case to shift the burden on to the respondent to demonstrate that no reasonable adjustment was possible. Under s17A(1C) the burden only shifts when the tribunal could properly infer the failure to make the adjustment in the absence of some explanation. She submits that there is no breach unless some reasonable adjustment which ought to have been made has not been.
49. Accordingly, unless there is evidence before the tribunal of an adjustment which at least on its face appears reasonable and would mitigate or eliminate the disadvantage, the burden does not shift. Furthermore, a respondent is entitled to know what it is alleged he has unreasonably failed to do. It would place an impossible burden on a respondent to have to prove that there were no other steps which he might reasonably have taken when none was identified.
50. In this connection Ms Clement relies upon para 4.43 of the Disability Rights Commission's Code of Practice: Employment and Occupation which provides as follows:

"To prove an allegation that there has been a failure to comply with the duty to make reasonable adjustments, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that such a duty had arisen, and that it had been breached. If the employee does this the claim will succeed unless the employer can show that it did not fail to comply with its duty in this regard."

This certainly implies that something more than the two conditions of an arrangement resulting in a substantial disadvantage is required before the burden shifts.

51. Mr Epstein contends that the approach of the Tribunal was right. He says that a respondent will generally be in a better position to provide evidence about reasonable adjustment. Here, for example, he suggests that the respondent knew what stand alone computers were available to it and whether one could have been used or not. However, he did recognise that there would be considerable difficulties facing a respondent if he had to show not only that any proposed amendments were unreasonable, but also had to identify to the satisfaction of the tribunal that it had examined and reasonably rejected all potentially available adjustments. He also accepted that the argument he was advancing meant that the provision in the Code of Practice we have cited was inaccurate.
52. Mr Epstein sought to gain support from the decision of the EAT (Lindsay J presiding) in the Cosgrove case. An employee had been dismissed after being absent for over a year with depression. She alleged disability discrimination. The Employment Tribunal dismissed her claim principally on the basis that she had suggested no adjustment to the employer. However, the EAT upheld the appeal. The EAT held - and we respectfully agree - that the fact that she had not suggested any adjustments at the time did not relieve the employer of the duty to consider the matter. As the EAT noted, a depressed employee is not in the best position to make such suggestions. The EAT held that if the employer had turned his mind to the question, then some adjustment might have emerged. Stress was plainly an important cause of the illness but this might have been reduced by transferring her, or by reducing her hours. On this basis it would normally have remitted the matter for further consideration on liabililty. However, the EAT was specifically asked by both parties not to do that, and it concluded that given the failure by the employer to address the issue, it would infer a breach of the duty.
53. We agree with Ms Clement. It seems to us that by the time the case is heard before a tribunal, there must be some indication as to what adjustments it is alleged should have been made. It would be an impossible burden to place on a respondent to prove a negative; that is what would be required if a respondent had to show that there is no adjustment that could reasonably be made. Mr Epstein is right to say that the respondent is in the best position to say whether any apparently reasonable amendment is in fact reasonable given his own particular circumstances. That is why the burden is reversed once a potentially reasonable amendment has been identified.
54. In our opinion the paragraph in the Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made.
55. We do not suggest that in every case the claimant would have had to provide the detailed adjustment that would need to be made before the burden would shift. However, we do think that it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not.
56. As to the Cosgrove case, that we think turned on the request by the parties not to remit the matter. In so far as it suggests that there could be a breach simply from a failure to consider the matter or be aware of the existence of the duty, then the decision can no longer stand in the light of Tarbuck and the EAT decision in British Gas Services v McCaull [2001] IRLR 60.
57. We accept, however, that the proposed adjustment might well not be identified until after the alleged failure to implement it, and in exceptional cases, as here, not even until the tribunal hearing. Indeed, in certain circumstances we think it would be appropriate for the matter to be raised by the tribunal itself, particularly if the employee is not represented. To take a simple example, where a Code provides an example of an adjustment which on the face of it appears appropriate, that is something the tribunal should take into account. We think that it would be perfectly proper for a tribunal to expect an employer to show why it would not have been reasonable to make that adjustment in the particular case, although of course the employer must have a proper opportunity of dealing with the matter.

Is the burden relevant here?

58. Accordingly, we think the Tribunal did err in its approach to the burden of proof. However, that is not the end of the matter. Mr Epstein submits that even if there was this error, it did not affect the actual decision. The fact is that the claimant did identify before the Tribunal a particular step which could on the face of it deal with the substantial disadvantage faced by Ms Latif, and the question then was whether PMI had acted reasonably in failing to take that step. It was not a case where PMI had to engage with a vague assertion that some step might have been possible though none could be specifically identified.
59. In this case evidence of the very specific potential adjustment and PMI's response to it was adduced before the Tribunal without objection from PMI, and the Tribunal was fully entitled to deal with it. Having done so, it was equally entitled to conclude, having weighed up the relevant factors, that this was a proposal that would in all likelihood have emerged had there been fuller consultation at an earlier stage, and that it would have been reasonable for PMI to have adopted it.
60. We accept that submission and reject Ms Clement's submission that the error infected the Tribunal's approach. We do appreciate that it will often be unsatisfactory for a proposed adjustment to emerge in this way late in the day. No doubt tribunals will have to be alive to the possibility that an injustice will arise if the respondent does not have a proper opportunity to deal with the matter, for example by an adjournment if necessary. In this case the respondent did have a full opportunity to deal with the point, and it is not being suggested otherwise.
61. Accordingly, whilst we consider that Ms Clement has properly identified certain errors of law in the approach of the Tribunal, we are also satisfied that overall its conclusion can be fully justified for the reasons it has given. Even applying the burden of proof in the appropriate way, in our judgment the Tribunal would necessarily have reached the same conclusion.

Disposal

62. The appeal fails. Whilst there were certain errors of law in the approach of the Tribunal ably identified by Ms Clement, we are satisfied that they did not infect its decision. The findings of the Tribunal are such that it is clear that it would inevitably have reached the same result even had it directed itself properly. Accordingly, there is no purpose in remitting the matter for further consideration.