United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J MARTIN COPELAND (Representative) Stockport Law Centre 85 Wellington Road South Stockport SK1 3SL
For the Respondent	MR PHIL ALLEN (Solicitor) Messrs Beachcroft LLP Solicitors St Ann's House St Ann Street Manchester M2 7LP


 


SUMMARY

Disability Discrimination – Reasonable adjustments

Where a Claimant submits a grievance relating to a continuing discriminatory act, s32 Employment Act 2002, and Schedule 2 para 6 do not require him to serve a further grievance in respect of the same continuing act. The Employment Tribunal was also in error in failing to hold that the duty to make reasonable adjustments under the Disability Discrimination Act 1995 arose when he Claimant became permanently unfit for his existing work.


 


HIS HONOUR JUDGE SEROTA QC

1. This is an appeal by Mr A Smith, the Claimant, as we shall call him, against the decision of the Employment Tribunal at Manchester promulgated on 10 November last year, that the Respondent did not discriminate against him under ss3A and 4A of the Disability Discrimination Act 1995. HHJ Clark referred the matter to a full hearing on 17 January of this year. On 17 April I allowed an amendment to the Notice of Appeal and I made certain consequential orders in relation to notes of evidence and other matters.
2. Before I launch into the description of the factual background of this matter, may I say that my colleagues and I have been greatly assisted by the very helpful skeleton submissions by Mr Copeland on behalf of the Claimant, and by Mr Allen on behalf of the Respondent, and also for their very brief but helpful oral submissions as well. If we do not refer to each submission that was made to us it is not because we have not taken it into account, but we will deal with those matters that are pertinent to the Judgment that I am about to deliver.

Background

3. I turn with that in mind to the factual background of these proceedings. The Respondent, as is well known, is responsible for maintaining the track of the rail network. The Claimant was employed as a track maintenance worker for a number of years. The track maintenance work is described as very skilled manual work. The worker is required to be fit and to have good eyesight to enable him to carry out the essential duties of what is certified as being a safety-critical job.
4. The Claimant had the misfortune to suffer a number of strokes, and so far as we are aware he has not worked since October 2004. Indeed, he was not working at the time of the hearing before the Employment Tribunal but was still employed by the Respondent. We understand that in fact he resigned as recently as 19 March of this year.
5. The Claimant, as we have said, suffered a number of strokes. In November 2004 it was reported by his medical advisors that he had suffered brain lesions and would be unable to return to work as a track maintenance worker. There were indeed doubts as to whether he would be able to return to work and, if so, whether he would be able to return to safety-critical work. It is accepted, certainly from January 2005, that the Claimant has shown he was not fit for safety-critical work. On 21 February 2005 the Claimant suffered a third stroke. He underwent surgery for removal of a tumour and as a result his eyesight deteriorated significantly. A medical report at the time suggested that further medical assessment of his capacity would be required before he was able to return to work.
6. On 31 August 2005 the Claimant met with the Respondent. He was accompanied by a representative of the Royal National Institute for the Blind. He was told that his employment status was not at risk. There was a discussion as to the nature of his disability. The possibility of his return to work in some other capacity, such as working in an office, was floated. The issue of reasonable adjustments that might be required was brought to the Respondent's attention. It was accepted that there was a need for further medical assessment. The Claimant made clear to the Respondent that he would wish to find alternative employment but he would want that alternative employment to be in the South Manchester or Stockport area.
7. It was conceded by Mr Allen that it was apparent to the Respondent on that occasion that if the Claimant was to work in an office, and that appeared to be the only kind of alternative employment that might be available, he would require some IT skills. He had none.
8. There is a report from Dr Doherty, who reported on 23 September 2005 that the Claimant was unfit for his normal job by reason of his sight difficulties. He was not ready to return to work at all at present, and after retraining he would be fit only for office-based employment. He might be able to return to work in December although it looks as though January or February 2006 was contemplated by everyone as being the most likely dates when the Claimant would be in a position to return to some form of work. The Employment Tribunal was satisfied that from round about January 2006 the Respondent began to look for vacant posts it might offer the Claimant, although nothing seemed to have to come up until after February. The Employment Tribunal, at para 3.7 of its Decision, considered that it was regrettable that the Respondent did not communicate to the Claimant the steps that were being taken to find him some form of employment.
9. On 8 February 2006 the Claimant had failed to hear anything from the Respondent. He therefore wrote an important document, so far as this case is concerned, which we have at page 56 of the bundle. He wrote to Ms Amanda McCormick, who I believe was in the Human Resources department, that he was:

"…extremely concerned about the delay from the personnel department in writing to me with options of alternative employment. It is now eleven months since my operation and six months since our meeting in August of last year.

The traumatic experience of having brain surgery and now being left partially sighted would be eased dramatically if I had work to go to, but, as to this date Network Rail has not offered any sort of help and this has led to me feeling that my life has been put on hold.

I need to know quickly what is my situation with your good selves. I am willing to retrain and I feel I still have a lot to offer.

I am still the same person who carried out good work for Network rail albeit I cannot do my previous tasks.

I look forward to an early reply."

10. It is accepted that this letter amounted to the notification of a grievance within the meaning of the Schedule to the Employment Act 2002, to which we shall turn. Regrettably, Mr Smith's expectation of an early reply was not met. The Employment Tribunal refer to the fact that this letter inexplicably went unanswered. On three occasions however the Claimant enquired of the Respondent what progress had been made in relation to finding a vacancy and was told that no vacancy had appeared, although enquiries continued. He was not offered any specific training although, as we have said, it was clear from August 2005 that the Claimant would need IT skills if he were to be able to undertake any form of office work.
11. On 21 March 2006 we know that the Claimant was in fact interviewed for a post as a works data clerk. He was rejected, although it is clear from reading the witness statement of Mr Ducker that he would, had the Claimant had the necessary computer skills or knowledge, have been more than happy to employ him. However, the Claimant lacked those skills and knowledge; see paras 10 and 11 of Mr Ducker's witness statement which is in the bundle.
12. The Employment Tribunal conducted the case on the basis that it was only concerned with the period up to February 2006 when the Claimant submitted his grievance. The Employment Tribunal noted, and we now refer to para 3 of its findings, that it was accepted in closing submissions by the Claimant that the Employment Tribunal was only concerned with that period. We would also note that in the Claimant's ET1 (and we now refer to page 37) the complaint that he had made was:

"I have worked for Network Rail since October 2002. I became ill in October 2004 and underwent surgery for the removal of a brain tumour in March 2005. I have been left partially sighted and unable to return to my job as a trackman. My employer has done very little to help my return to work in some capacity.

I have had to write to them in February 2006 with my grievances and only after this was I invited for an interview for an office vacancy, having no experience in an office environment. No offer of re-training was offered to me, thus putting me at a disadvantage against other applicants.

I feel that after 15 months since notifying the company of my situation that they have discriminated against me. They have only contacted me after I have been in contact with them. Although they have not terminated my contract of employment, I feel they are hoping I will just leave.

I feel I have reason for the industrial tribunal to judge this as a matter of disability discrimination."

13. We also should note that the Claimant himself has sought out an IT course but this was only available in June 2006. This rather begs the question as to what kind of training the Respondent might have been able to provide having regard to its resources, Network Rail being of course a substantial company with many employees and as we were told, a staff wages bill in excess of £1bn a year.
14. At the Employment Tribunal, Mr Allen, on behalf of the Respondent, submitted that the Claimant was not entitled to rely on matters that had occurred after his grievance letter, as only failure on the part of the Respondent up to the date of that letter was relevant. If he wished to complain about matters arising after 8 February, he would have to issue a new grievance letter and in due course a new originating application. It is by no means clear what happened, but notes taken by the Respondent's solicitors, which we have seen, suggest that the point was raised by the Respondent's solicitors. The Employment Tribunal appeared to agree, and the Claimant's representative, Mr Copeland, was unable to deal with the submission which had not previously been raised. Consequently, the Employment Tribunal ruled in favour of the Respondent and the case was conducted on that basis.
15. We understand that Mr Copeland, who appeared on behalf of the Stockport Citizens Law Centre for the Claimant, has qualified as a member of the Bar but has never practiced as such. He is an advisor and case worker. In his closing submissions, which we have seen as they were in the form of a written skeleton argument, the Claimant made submissions in accordance with the ruling of the Employment Tribunal to which we have already referred. The Respondent has attempted to uphold that part of the decision and the correctness of the submissions he made to the Employment Tribunal. We consider that we are entitled to review that part of the Employment Tribunal decision because, as Mr Allen conceded, even if the advocates were both wrong as to the purport of the law, the Employment Tribunal was still obliged to apply the law correctly. Further, we are in any event not satisfied that the Claimant did in fact agree with or concede the proposition put forward by the Respondent. His skeleton submissions were clearly premised on the basis of compliance with the earlier ruling of the Employment Tribunal.

The Employment Tribunal Decision

16. We now turn to consider further the decision of the Employment Tribunal. It asked itself four questions: first, was the Claimant a disabled person, and if so from what date was the Respondent obliged to make reasonable adjustments? Secondly, was there a provision, criterion or practice of the Respondent that placed the Claimant at disadvantage compared to those persons who were not disabled within the meaning of s3A of the Act? Thirdly, was the Respondent aware at the material time the Claimant was a disabled person? Fourthly, did the Respondent take such steps as were reasonable to prevent that provision, criterion or practice (frequently shortened to PCP) having that effect?
17. The Employment Tribunal then set out the facts as we have referred to them. It referred, albeit very briefly, to the relevant statutory provisions and to the decision of the House of Lords in the well-known case of Archibald v Fife Council [2004] IRLR 651. The Employment Tribunal, having regard to Lord Rodger's speech in Archibald, found that the Claimant was at a substantial disadvantage, as he could not perform the essential functions of his job and was liable to dismissal. The appropriate comparators were those employees who could perform their jobs and were thus not liable to dismissal. So much is not controversial. The Employment Tribunal found that there was a PCP, in that the Claimant was required to have sight to carry out his job and was therefore placed at a substantial disadvantage. He was not entitled to receive pay, his sick pay having been exhausted, and was liable for possible dismissal. We have not understood Mr Allen to seek to persuade us that that finding was wrong.
18. The Employment Tribunal then went on to find that the duty to make adjustments was engaged by December 2005 or, more realistically, January 2006. The Employment Tribunal accepted Mr Allen's submission that the Respondent's duty was to facilitate a situation where the Claimant was able to return to work and therefore cease to be a person who was not receiving pay and liable to dismissal. At para 10 of the Decision, the Employment Tribunal had this to say:

"10. …judging objectively what the respondents had done between December 2005 and February 2006 it is the unanimous conclusion of the members of the tribunal that the respondents had discharged the duty placed on them by section 4A in that they had taken such steps as are reasonable, by attempting to locate vacancies. Until such time as any potential vacancy could be established the further potential obligations under section 18B cannot be engaged."

19. Discrimination is defined by S3A of the Disability Discrimination Act 1995. We refer to S3A (1) and (2):

"(1) For the purposes of this Part, a person 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."

Breach of the duty to make reasonable adjustments gives rise to liability by virtue of S3A(6).

20. Section 4A deals with the duty of employers to make adjustments in respect of its employees in these terms:

"(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 the provision, criterion or practice, or feature, having that effect."

21. Section l8B sets out various matters to which regard should be had in determining whether it is reasonable for a person to take a particular step, so far as reasonable adjustments are concerned. Such matters as the practicability of the step in question, the financial and other costs which would be incurred by him in taking the step, the extent of his financial and other resources; and the nature of his activities and the size of his undertaking; (see 18B(1)).
22. Section 18B(2) gives examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments. We do not need to set these out but note that they include: "(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person)".
23. We now turn to the principal issues that arise on this appeal. The most significant point was whether or not the Employment Tribunal was correct to hold that the Claimant could only rely on matters in his originating application up to and including the date of his grievance letter. Section 32 of the Employment Act 2002 provides that an employee shall not present a complaint to an employment tribunal under a jurisdiction to which the section applies if—

"(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with."

The section applies to claims for disability discrimination. Accordingly by virtue of schedule 2 the Claimant was required before he could commence proceedings to "set out the grievance in writing and send the statement or a copy of it to the employer."

24. The Respondent submitted that the grievance letter, which we have already referred to, should be construed along the lines of the complaint being 'You have not helped me find a job to date.' The submission made was that every time lapse between the date of the grievance and some further consideration would require the Claimant to issue a new grievance letter. Therefore, in the case of a continuing complaint such as the complaint made here - that "I have not been helped to find a job and get back to work" – if, for example, a grievance letter is dated 1 January and there is no response and no action appears to have been taken by 1 April, the Claimant would be required to issue a further grievance to cover the position between January and April and if, despite that further grievance, nothing was done by 1 June he would have to issue a further grievance. If he had issued an originating application, he would then have to issue a further originating application and so on and so on.
25. Mr Allen did not shrink from saying that that was how the law stood. He submitted that all the Claimant could say in his original grievance was, you have not done enough for me to date; if the problem continues, the employee must go back to the employer with a further grievance letter and give the employer the opportunity to reconsider again. That, submitted Mr Allen, was what the statutory procedure required. An example of giving effect to this submission would be, of course, that the Claimant would be precluded from raising complaints as to the interview that he had for the post of data clerk. He could not complain, submitted Mr Allen, because as at the time of the grievance letter the post had not become vacant. The purpose, Mr Allen submitted, of the grievance procedures was to enable the Respondent to know what the grievance was and to consider it and attempt to deal with it before the issue of proceedings. It would not be able to consider matters after the grievance letter unless it received a fresh grievance letter.
26. Mr Allen sought to draw assistance from the decision of Elias P in the case of Canary Wharf Management Ltd v Edebi [2006] IRLR 416.

"21. Third, the content. The contrast between the standard and the modified procedure highlights an important feature of the way in which the complaint must be made under the former. As we have noted, there is no obligation to set out the basis of the claim. It is enough, therefore) that the employee identifies the complaint. The need to substantiate that with some evidence to justify it arises under the standard procedure at the second stage where the employee has to inform the employer what is the basis of the grievance. The only requirement, as section 32(2) makes plain, is that the complaint to the employer must be essentially the same complaint that is subsequently advanced before the Tribunal. As Burton J succinctly put it in the Shergold case:

'the grievance must relate to the subsequent claim, and the claim must relate to the earlier grievance.'

22. It is not even necessary that the employee should indicate that he wants or expects the complaint to be dealt with; he does not need to be actively invoking the grievance procedure, statutory or contractual. The paragraph is satisfied simply if the complaint is made. Once that occurs, the onus falls on the employer to arrange a meeting to deal with a grievance although the employee will then have to notify the employer of the basis of that grievance.

23. How then does one determine whether the relevant complaint has been made? In Shergold, Mr Burton J said this at paragraph 28 down to 'so far as Unfair Dismissal'

'…the statutory wording…very simple, and we believe that it was intended to be simple. Of course an employee, before this statutory procedure is invoked, must set out something in writing, because otherwise employers will not necessarily appreciate that there is a grievance to deal with, but they are not required to set it out in technical detail, certainly, so far as the standard procedure is concerned. The danger is obvious that the kind of pernickety criticism of the form or content of the 'writing' exemplified here can result in an employee being barred from the judgment seat entirely, as occurred here. It is, of course, equally important from the point of view of the employer that an employer should know where it stands, and it is as well for employers to appreciate that there is no requirement for excessive technicality in relation to the form in which a grievance is set out in writing, so that they can easily appreciate when they must fulfil their obligations under the 2002 Act and the 2004 Regulations; otherwise they might find themselves down the slippery slope leading to an automatically unfair dismissal…'

24. Mr Solomon for the Appellants has made a number of criticisms of this decision, and we will return to deal with those shortly. Suffice it to say that we agree with Burton J that in identifying whether or not the complaint is identical to that which has been lodged before the Tribunals, one must not approach the issue in a technical way. The law in this area is directed at employees who in many cases - perhaps most – will have no knowledge at all of the relevant law. The aim is to promote the use of appropriate procedures. It would be quite wrong to require the grievance to be made in any unduly legalistic or technical manner. At the same time, it must not be forgotten that an employer who receives a grievance and is at fault in failing to take matters further is at risk of paying additional compensation if the claim ultimately succeeds. Indeed, if it succeeds he will have to pay additional compensation to the extent of at least 10 percent. But he cannot fairly be expected to take matters further if he is unaware that a relevant complaint has been lodged."

During his submissions Mr Allen suggested that "strict" compliance with the requirements of the Schedule was required. We have some difficulty with that submission because it is clear from the passage that has been cited from Canary Wharf, and especially the citation from the decision of Burton J in Shergold v Fieldway Medical Centre (EAT/0487/05), that the grievance procedure is intended to be informal and the essential matter is whether or not the Respondent is put on enquiry as to the nature of the complaint made by the Claimant.

27. The essential distinction between the facts of the Canary Wharf case and the present case is that in that case Mr Edebi had presented a grievance in relation to unfair dismissal but had issued proceedings in relation to discrimination, I also believe on the grounds of disability (not having issued any grievance in relation to disability discrimination). It can be seen quite clearly that the complaints in that case, in the originating application, related to different causes of action, and are factually separate.
28. We can well understand that where the complaints are about specific acts or specific heads of claim - such as unfair dismissal, discrimination on the grounds of race, and discrimination on the grounds of sex - those must be set out in a grievance. To put the matter another way, a Claimant cannot raise a grievance about a specific incident of discrimination and then in his originating application seek to rely on other specific incidents. Similarly, he cannot raise a grievance, for example on the grounds of sex discrimination, and then in his originating application seek to rely on discrimination on the grounds of race, unless he has issued a further grievance letter.
29. The position is quite different, in our view, when what is complained of in the grievance letter, as in the instant case, is that the Respondent has not been assisting the Claimant to find employment. That is a continuing complaint. It is a complaint that looks forward as well as back. The employer knows perfectly well what the complaint is and what he needs to do, and in the instant case it is exactly that complaint that appears both in the letter of grievance and in the originating application. The only requirement in our opinion, as s32(2) makes plain, is that the complaint to the employer is essentially the same complaint as that advanced before the Tribunal. We would respectfully agree with Burton J in the Shergold case in the passage cited by Elias J in Canary Wharf Management v Edebi and would repeat Elias J's comments at paragraph 22.
30. The Employment Tribunal was tempted into error by the Respondent and we are satisfied that in this regard the decision cannot stand. We are satisfied that on a proper construction of the grievance letter and the provisions of the Schedule, the Employment Tribunal should have considered complaints up until the date of the presentation of the originating application. The decision therefore cannot stand.
31. The next issue that falls for consideration is at what date did the duty arise? The Employment Tribunal, as we have noted, considered that the duty arose late in the day although the precise date probably does not matter. In our opinion however, the Employment Tribunal failed to have regard to the decision in Archibald and in particular to what Lady Hale has to say at para 64:

"The duty to make adjustments was triggered where an employee became so disabled that in that case she can no longer meet the requirements of her job description."

So far as concerned the Claimant, that date was significantly prior to the date found by the Employment Tribunal. In our opinion, the Employment Tribunal's decision in that regard cannot stand either.

32. In practical terms the Employment Tribunal should at least have considered whether to start, for example, seeking to identify possible jobs at an earlier stage or whether it was appropriate to provide some sort of training, in particular, IT training. What precisely the employer should have done is of course a question of fact for the Employment Tribunal, but the Tribunal should have approached this matter on the basis that the duty arose when the Claimant became unable to perform his existing job.
33. The next point that arose is whether the obligation to make reasonable adjustments under s18B(1)(b) arose. This is perhaps linked to an issue as to whether or not the Respondent should have provided the Claimant with some form of IT training. In this regard, it is pertinent to note that we asked Mr Allen what reasonable adjustments had been made by the Respondent and he submitted in the present case it had met with the Claimant and also looked for identifiable jobs which were suitable within a narrow geographical area. That was all. Mr Allen accepted, as we have noted, that it was clear to the employer as early as 31 August that the Claimant would not be able to carry out any form of office work without IT training. He was unsuitable for office work because he lacked IT skills. Nonetheless, it was submitted to the Tribunal and it was submitted to us that there was no obligation to provide any training until a job had been identified. Mr Allen strenuously argued that there was no duty to train simpliciter, at least to improve the Claimant's position on the labour market, but it was sufficient to train him for a job as and when an opportunity for that specific job arose. The Employment Tribunal accordingly found the s18B(1)(b) duty had not arrived as at the date of the grievance letter. That decision cannot stand because, as have already noted, the Employment Tribunal was under an obligation to consider matters thereafter.
34. In our opinion the Employment Tribunal should have at least considered whether the duty to make reasonable adjustments did extend to training the Claimant in basic IT. It was clear that he would never be able to undertake a job unless he had some skills. It was certainly arguable, and the Employment Tribunal had not considered this point, that it was somewhat unreasonable for the Claimant to try and find a job and then, if that job was identified to train up the Claimant. He was simply unlikely to get jobs for which he lacked the necessary training, as the position when he applied for the post of work data clerk made quite clear.
35. The Employment Tribunal was wrong to exclude consideration as to whether appropriate training could have been a reasonable adjustment. We must stress that the question of what are reasonable adjustments is for the Employment Tribunal to consider having regard to the factors set out in s18B(1)(b) and we say no more than that any decision is going to be fact-sensitive and all matters must be taken into account, including the Respondent's resources and size. We note that the Employment Tribunal does not appear to have taken specific regard of this particular matter. We heard from submissions from both parties on the effect of the decision of the House of Lords in Archibald. The Claimant appeared to suggest that what in that case the Respondent had done in seeking to find alternative posts would apply in all cases and this one in particular. Mr Allen on the other hand submitted that Archibald was a case about competitive interviewing and was not an authority for the proposition that an employer must take all the steps taken in that case.
36. We consider that the question of what adjustments should be undertaken, in any case, is always fact-sensitive and the Employment Tribunal should consider the words of the statute and, in particular, the words of s18B(1)(b) in determining what adjustments were reasonable in any particular case.
37. We accept that the question of training or even the creation of a particular job will depend on the facts of every case. We accept that the decision in Southampton City College v Randall [2006] IRLR 18 was a decision that was fact-sensitive and it is not authority for the proposition that the creation of a new job specifically for a disabled applicant can be regarded as a general applicability.
38. We note that it has been suggested that the decision of the Employment Tribunal in relation to whether or not the Respondent had made reasonable adjustments was perverse. It is unnecessary for us to decide this matter, and we do not. We also note the submission that the Employment Tribunal failed to give adequate reasons as to why training was not an appropriate adjustment. We say no more about this in the light of what we have said above.
39. It follows from what we have said that the appeal is allowed and the case must be remitted to the Employment Tribunal.
40. It was submitted, on behalf of the Respondent, having regard to the decision of Elias P in Sinclair Roche & Temperley v Heard [2004] IRLR 763, that the matter could, and should, be remitted to the same Tribunal as heard the case to begin with. There is no suggestion that the Employment Tribunal was biased. We should assume, as indeed we do, that the Employment Tribunal had a professional approach and could deal with matters remitted to it. further, the evidence that had already been heard by the Employment Tribunal would not be wasted if the case was remitted to them so it would be proper for us to remit the matter to the same Tribunal, which would be entitled to hear further evidence, but in particular in relating to matters after the grievance letter had been sent on 8 February.
41. We have considered this submission with care. However, we have come to the conclusion that as the Employment Tribunal has fallen into significant error on a number of matters and new evidence is necessary in any event. In the exercise of our discretion we shall remit the matter for hearing before a differently constituted Employment Tribunal.