United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr J Laddie (of Counsel) Instructed by: EEF Legal Services Broadway House Tothill Street London SW1H 9NQ
For the Respondent	Mr D McWilliams (Trade Union Representative) Communication Workers Union 1 Clapham Square Leamington Spa Warwickshire CV31 1JH


 


SUMMARY

Disability Discrimination – Reasonable adjustments

Unfair Dismissal – Reasonableness of dismissal

Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke

Misdirection in law by ET as to employer's branch of duty to make reasonable adjustments, leading to finding of unlawful disability discrimination and unfair dismissal. Appeal allowed.

Case remitted to same ET for reconsideration.


 


HIS HONOUR JUDGE PETER CLARK

1. The parties in this case, which has been proceeding in the Manchester Employment Tribunal, are Mr Rudham, the Claimant and Romec Limited, the Respondent. We shall so describe them. This is an appeal by the Respondent against a reserved judgment of an Employment Tribunal chaired by Mr J N A Sherratt promulgated with reasons on 16 November 2006, following 2 days deliberation in Chambers. By that judgment the Tribunal upheld the Claimant's claims of disability discrimination and unfair dismissal. The critical issue in the appeal is whether, in finding that in one respect only the Respondent had failed in its duty to make reasonable adjustments contrary to the Disability Discrimination Act 1995 ("DDA"), the Tribunal took a wrong approach in law.

Background

2. The facts material to this appeal, as found by the Tribunal, were these. The Claimant commenced employment with the Post Office in 1990. His employment later transferred to the Respondent, which provides in-house services to what is now the Royal Mail Group. At the relevant times he worked as a Security Systems Maintenance Engineer. His work involved extensive driving and working at heights from ladders or steps. He worked alone, maintaining alarm systems. He covered an area including Surrey, Berkshire, Buckinghamshire and Oxfordshire.
3. He felt that his area of work was understaffed and that he was working under immense pressure. In January 2004 his GP signed him off sick with fatigue and malaise.
4. On 20 February 2004 he was seen by an Occupational Health Advisor Siobhan Clarke. She did not foresee his return to work in less than 6-8 weeks, whereupon he would require a rehabilitation programme.
5. On 2 April 2004 he was seen by another Occupational Health Advisor, Sarah Brian. She was unable to predict when he would be fit for work; she did not recommend a rehabilitation programme.
6. On 18 May 2004 the Claimant saw Dr Tony Williams, Consultant Occupational Physician. That doctor confirmed a diagnosis of Chronic Fatigue Syndrome (CFS), which he attributed to the Claimant's feeling that he had been overworked and could not work with the pressures that caused. Dr Williams recommended a rehabilitation programme working with another engineer, preferably local, for 2 hours a day every other day for 2 weeks; then 2 hours a day, 5 times a week for 2 weeks and then increasing 2 sessions to 4 hours for the following fortnight. During the rehabilitation period Dr Williams recommended that the Claimant assist a colleague rather then work alone, although he did not prohibit his driving a vehicle if he wished, even although he was taking medication. The aim was for the Claimant to then be in a position to work half shifts on his own, subject to a further assessment.
7. Pausing there, it is plain that the rehabilitation programme devised by Dr Williams made obvious sense; it allowed for a phased return to work for the Claimant. The Respondent accepted Dr William's recommendations and the Claimant returned to work under the terms of the programme on 12 July 2004.
8. The Claimant was next seen by Dr Manickarajah of Occupational Health on 2 August 2004. That doctor recommended an increase in the Claimant's daily hours of work over the next 3 months. On 10 September the Claimant took a day's sick leave and then continued working until 17 October. The following day he went off sick, never to return to work prior to his dismissal by the Respondent on 28 January 2005.
9. In the year 2004 the Claimant had a total of 245 days' sick absence in 3 blocks. He was absent throughout January 2005. Those absences were all related to his disability, as the Tribunal found it to be, that is, CFS.
10. On 8 December 2004 the Claimant was seen by Mr Nimmons, General Manager. We note from Mr Nimmons' witness statement that a medical report obtained in November 2004 concluded that the Claimant was unfit for work. Mr Nimmons told the Claimant that his sickness level was unacceptably high and dismissal was being considered. The Employment Tribunal record (reasons: para 44):

The Claimant explained that as he was going through the rehabilitation programme "as the hours increased I started to struggle, so I phoned the central sick line and reported off sick."

When asked by Mr Nimmons the Claimant said he did not know when he might be able to return to work. He struggled when working more then 2 hours a day and found it difficult doing physical rather than sedentary work.

11. Mr Nimmons decided to review the situation once he had received a report from a specialist. On 23 December 2004 Dr Schenk, Consultant Occupational Physician wrote to the Respondent, expressing the view that the Claimant would not manage a return to work in the near future and that the DDA would not apply. A further meeting between the Claimant and Mr Nimmons took place on 11 January. Mr Nimmons had not then received a letter from the Claimant's doctor. The Claimant reported that his doctor felt that he would benefit from shorter hours. He could not cope with working more than short hours every other day. The question of alternative work was raised by the Claimant's Trade Union Representative but, in the event, that possibility became immaterial.
12. Without seeing medical evidence from the Claimant Mr Nimmons proceeded to dismiss him by letter dated 20 January 2005. The reason given for dismissal was that the Claimant's continuing absence was managerially unacceptable and there was no evidence to suggest a return to work in the near future. Dismissal was on the grounds of capability.
13. Against that decision the Claimant, through his trade union, appealed. The grounds of his appeal were first, that the decision was made outside existing agreements and procedures; secondly, that the decision was taken without considering the Claimant's medical evidence and thirdly no account was taken of his condition under the DDA.
14. An internal appeal hearing took place before Mr Bramwell, HR Manager, on 16 February 2005. The Claimant's representative, Mr Murphy, said that the Claimant was looking to return to work on a rehabilitation plan similar to the one he was on earlier. There was discussion about the Claimant's proposed move to Scotland.
15. The Claimant's medical evidence in support of the appeal, not considered by Mr Nimmons, took the form of letters from Dr Fuller of the Chessington Community Mental Health Team, written to Dr Schenk, dated 13 and 17 January 2005. Those letters have been put before us. In his first letter Dr Fuller was of the opinion that the Claimant suffered from CFS and depression, attributable to stress in his private life rather than being work-related. When Dr Fuller had last seen the Claimant on 14 December 2004 he though that he was unable to work. No specific advice was offered. Improvement in terms of his fatigue and anxiety symptoms would be slow. Cognitive behaviour therapy and antidepressants were recommended. In his later letter, having spoken to the Claimant, Dr Fuller reported the Claimant as saying that his work environment did cause him stress prior to taking time off work. His work performance had been deteriorating over a period of 5 years.
16. Asked at the appeal hearing how he would see any further rehabilitation plan being structured the Claimant said that he was doing 2 hours every other day and increasing it until he was up to 3 full days when he had to go off sick again. After a few hours physical work, such as ladder work, it became dangerous for him to work. He would be fit for sedentary work. He was prepared to try alternative employment. He though he could return to full duties in time, but he did not know when.
17. Mr Bramwell took time to consider his decision. He obtained a further report from Dr Schenk dated 31 March. Dr Schenk stated that the Claimant was much better; however, he could not cope with full time work, being ideally suited to work in a simple location part-time. The doctor opined that he would be medically fit for his old job in the foreseeable future, but the timescale would be difficult to predict. Dr Schenk remained of the view that the Claimant was not disabled within the meaning of the DDA.
18. Mr Bramwell informed the Claimant that he had received that report on 1 April. During that telephone conversation the Claimant confirmed that he would definitely be moving to Scotland before the end of June. Mr Bramwell undertook to enquire as to vacancies within Romec OMS and Cleaning Services in Scotland.
19. On 12 April Mr Bramwell wrote to the Claimant dismissing his appeal. In giving his reasons Mr Bramwell did not mention the possibility of a further rehabilitation programme.
20. The Tribunal found that the Claimant made it clear at the appeal hearing that he was fit to return to work on rehabilitation, but not to his full duties and to do so ideally in Scotland but he could start in the South of England.

The Legislation

21. The Tribunal having found that the Claimant was disabled (DDA.s1) the following provisions of the DDA are material:

"3A Meaning of "discrimination"

(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 a 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 a reasonable 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.

4 Employers: discrimination and harassment

(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.

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

17A Enforcement, remedies and procedure

(1C) 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 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.

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;

….

(2) The following are 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-

….

(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment

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

22. As to unfair dismissal, the Respondent established a potentially fair reason for dismissal, capability. No question of automatically unfair dismissal under s98A ERA arose in this case. Thus the question for the Tribunal ultimately was one of reasonableness under s98(4).

The Tribunal's Decision

23. The Tribunal directed themselves economically as to "the applicable law". At paragraph 70 they said:

"70. In respect of the disability discrimination claim the relevant law is to be found within Sections 1, 3A, 4, 4A, 17A(1C) and 18B of the Disability Discrimination Act. In respect of the unfair dismissal claim the relevant law is to be found in Section 98(1) to (4)."

It will be noted that that list of relevant provisions in the DDA omits s4A, which we have earlier set out.

24. The Tribunal first considered whether the Respondent was in breach of its duty to make reasonable adjustments. 5 adjustments were suggested on behalf of the Claimant:

(1) transferring him to an existing vacancy

(2) assigning him to a different place of work

(3) extending the rehabilitation programme

(4) extending the contractual sick pay scheme

(5) considering ill-health retirement

The Tribunal rejected each of those proposed adjustments save for the third one mentioned; extending the rehabilitation programme. Their reasons for finding that in that single respect the Respondent failed in its duty to make reasonable adjustments are contained in paragraph 75 of their Reasons. We should set it out in full:

"75. Extending the rehabilitation programme was something put forward particularly at the appeal against dismissal as something that the claimant wanted. He wanted to continue a programme of structured rehabilitation that he had started previously but had been unable to continue due to a relapse. The question of rehabilitation having been mentioned quite strongly in the appeal process we were surprised to find that it was not mentioned by Mr Bramwell in his reasons for upholding the termination of employment as set out in his letter of 12 April 2005. In our judgment the failure to offer a further rehabilitation programme was a breach of the duty to make reasonable adjustments. Returning the claimant to the rehabilitation programme would have given the claimant the opportunity to prove himself or otherwise. We therefore take the view that the respondent failed to make a reasonable adjustment in this regard."

25. Having so concluded the Employment Tribunal went on to find (paragraph 80) that the Claimant was less favourably treated than an employee who was not absent from work and that less favourable treatment could not be justified because there was a failure to comply with the duty to make reasonable adjustments and it would not have been justified if the duty had been complied with. Thus the act of dismissal amounted to unlawful disability discrimination.
26. Further (paragraph 82) the Tribunal concluded that, based on their finding of failure to make reasonable adjustments, the internal appeal would have succeeded had the rehabilitation programme been extended. Accordingly the dismissal was unfair.
27. The Tribunal then added:

"83. The Post Office attendance procedure has been adopted by the respondent by agreement with the Communication Workers Union. The procedure is said to apply to frequent and/or lengthy absences from work because of medical conditions which do not justify medical retirement. The respondent submitted that this procedure was not applicable to the claimant's case. However, the claimant was subjected to warnings under the procedure in respect of earlier absences and he benefited from the rehabilitation provisions during his earlier long-term absence. Although the respondent said that the attendance procedure was not applicable we do not consider that we were given a satisfactory explanation as to why it was not followed thereby denying the claimant the benefits of potentially discounting his disability related absences and the rehabilitation process for employees returning from long-term sickness absence.

84. In making these findings we have taken into account the fact that the respondent is a large employer with some 5,000 employees throughout Great Britain.

The Appeal

28. By its Notice of Appeal, settled by Mr Laddie, the Respondent raises 2 grounds of appeal. First, that the Tribunal failed to identify the basis for concluding that there was a duty to make reasonable adjustments; secondly, in the alternative, that even if the duty existed the Tribunal erred in law in finding that, in one respect, the Respondent failed to comply with that duty. The relief sought in the Notice was a finding by the EAT that the Claimant was not discriminated against.
29. In his skeleton argument lodged prior to the hearing of this appeal Mr Laddie went further. He there invited the EAT to conclude that there was no evidential basis for the finding of failure to make a reasonable adjustment and that consequently the findings of disability discrimination and unfair dismissal must also fall, bearing in mind the Tribunal's reasoning at paragraphs 80 and 82.
30. Having considered Mr Laddie's skeleton argument Mr McWilliams objected to that submission. He contended that the Notice of Appeal challenged only the finding as to the Respondent's duty to make reasonable adjustments; not the Tribunal's conclusions as to disability discrimination and unfair dismissal. Mr Laddie ought not to be permitted to extend the scope of the appeal.
31. We heard argument on the point and decided to allow Mr Laddie to develop his submission. It seemed to us that the Tribunal's link between their finding of the Respondent's failure to make a reasonable adjustment and the findings of disability discrimination (paragraph 80) and unfair dismissal (paragraph 82) were self evident. Mr McWilliams was able to deal with the point, having been put on notice in Mr Laddie's skeleton argument. The justice of the case required that we should hear full argument.

Discussion

32. Whilst Mr Laddie was content to assume in the Claimant's favour that there was a duty on the Respondent to make reasonable adjustments and proceed on that basis to his second ground of appeal we should deal initially with the first ground.
33. Mr Laddie has drawn our attention to the analysis by HHJ Serota QC of the steps to be taken by a Tribunal in determining whether or not a duty to make reasonable adjustments arises in Smiths Detection-Watford Ltd v Berriman (UKEAT/0712/04/CK 9 August 2005). Although dealing with the predecessor to s4A (then s6 DDA) the principles remain good and were followed by HHJ McMullen QC in London Borough of Barnet v Ferguson (UKEAT/0220/06/DA 18 September 2006) paras 20-25.
34. In Berriman (paragraph 85), Judge Serota enjoined Tribunals to identify:

(a) the relevant arrangements, now provision, criterion or practice (PCP), made by the employer

(b) the relevant physical features of the premises occupied by the employer

(c) the identity of non-disabled comparators (where appropriate) and

(d) the nature and extent of the substantial disadvantage suffered by the Claimant.

35. It is right to say, looking at the written submissions of the parties' representatives below (neither Mr Laddie nor Mr McWilliams then appeared) that the Tribunal's attention was not drawn to the cases of Berriman and Ferguson, although we note that s4A was set out in full at paragraph 4 of the Respondents written closing submissions. Whilst not expressly stated in the Tribunal's written reasons we infer, particularly based on paragraph 71 of their reasons, that the Tribunal proceeded on the basis that:

(a) the relevant PCP was doing the full work of a Security Systems Maintenance Engineer

(b) the physical features of the premises are not applicable

(c) the relevant comparator is an engineer who is not disabled

(d) the substantial disadvantage lies in the fact that the Claimant, by reason of his disability, was unable to perform the full role of engineer whilst his comparator could. The Claimant was at risk of dismissal; his comparator was not.

In these circumstances the duty to make reasonable adjustments was triggered: see Archibald v Fife Council [2004] IRLR 651, paragraph 65, per Baroness Hale.

36. Did the Tribunal err in going on to find that in one respect, not extending the rehabilitation programme, this Respondent failed in that duty?
37. We agree with Mr Laddie that at para 75 Reasons the Tribunal asked themselves the wrong question.
38. In determining, for the purposes of s4A, whether extending the rehabilitation programme was a step which it was reasonable, in all the circumstances, for the Respondent to take in order to prevent the PCP placing the Claimant at a substantial (that is, more than trivial) disadvantage compared with his comparator, it was necessary for the Tribunal to consider the matters set out at s18B. The first of those is the extent to which taking the step would prevent the effect in relation to which the duty is imposed.
39. True it is, as Mr McWilliams submits, that extending the rehabilitation programme would have prevented the Claimant's dismissal in the short term; but that begs the critical question, would extending the programme have enabled the Claimant to return to full duties as an engineer, thus removing the disadvantage he suffered compared with the non-disabled comparator? That does not, in our judgment, require a definitive answer one way or the other. Of course if, as Mr Laddie submits, there was no prospect of a further programme succeeding in that aim, based on the medical evidence and the failure of the first programme, it will not be a reasonable adjustment. Conversely, if, in the judgment of the fact-finding Tribunal based on the evidence before it, there is a real prospect of an extended programme resulting in a full return to work it may be reasonable to expect the employer to take that course.
40. We are satisfied that this Tribunal did not embark on that enquiry. Instead, it thought it sufficient that an extended programme would give the Claimant an opportunity to prove himself or otherwise. That is the wrong approach. It was for the Tribunal to ask itself and answer the question, to what extent would an extended rehabilitation programme allow the Claimant to return to full time work as an engineer? Only after that question is answered can the Tribunal go on to answer the principal question, is that a reasonable step to take to remove the disadvantage suffered by the Claimant?

Disposal

41. Mr Laddie submits that the answer to those questions is clear on the facts. An extended programme had no prospect of success; thus it could not be characterised as a reasonable adjustment.
42. We see the force of that submission. We are told that at a subsequent remedies hearing the Tribunal approached compensation in this case on the basis that future rehabilitation would not be successful and that the assessment of loss proceeded on the footing that the Claimant would have retired on ill-health grounds. That said, we do not have the Tribunal's written reasons for their remedies judgment.
43. However, we are naturally reluctant to usurp the fact finding role of the Employment Tribunal. We prefer the submission of Mr McWilliams; that the matter be remitted to the same Employment Tribunal for further findings to be made in the light of our judgment.
44. Accordingly we shall allow the appeal and remit the matter to the same Tribunal chaired by Mr Sherratt to consider the following issues:

(1) was the Respondent's failure to extend the Claimant's rehabilitation programme a failure to make a reasonable adjustment on the basis we have identified?

(2) if so, the findings of disability discrimination and unfair dismissal will stand,

(3) if not, the finding of disability discrimination falls as does the finding of unfair dismissal as explained in paragraph 82 of the Reasons, but,

(4) even so, does the Tribunal nevertheless find dismissal unfair for the reasons given at paras 83-84,

(5) in the light of their further findings on liability, what if any adjustments fall to be made to their judgment on remedy?

These matters can, it seems to us, be dealt with by way of oral submissions without the need for further evidence. If the Employment Tribunal requires further evidence it must give notice to the parties.