United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS L OMAMBALA (of Counsel) Instructed by: Messrs. Field Fisher Waterhouse LLP Solicitors 35 Vine Street London EC3N 2AA


 


SUMMARY

DISABILITY DISCRIMINATION

The EAT held that there were arguable errors in the ET's approach to the factual questions raised by sections 5 and 6 of the Disability Discrimination Act 1995 before their repeal.


 


THE HONOURABLE MR JUSTICE KEITH

1. The Claimant, Denise Macklin, was employed by the Respondent, the Department for Work and Pensions, until her dismissal in 2004. She presented claims of disability discrimination and unfair dismissal to the Employment Tribunal. An Employment Tribunal at Stratford found that she had been discriminated on the ground of her disability and that she had been unfairly dismissed. A Notice of Appeal was lodged by the Department with the Employment Appeal Tribunal. It was considered by Mr Recorder Luba QC. He directed that there be a preliminary hearing of the appeal so that there could be a proper assessment of which grounds of appeal warranted a full hearing. He directed that only the Department could be heard at the preliminary hearing, though he permitted Miss Macklin to lodge concise written submissions, if she wanted to, on whether any of the grounds of appeal have a reasonable prospect of success. She has not lodged any such submissions.
2. It was common ground in the Employment Tribunal that Miss Macklin is a diabetic. She was first diagnosed as suffering from diabetes in June 1989. It was also common ground that Miss Macklin had suffered from reactive depression since September 2001. She had wanted to amend her ET1 to allege that she had suffered from depression since December 1998, but the Employment Tribunal refused her permission to amend her ET1 to make that allegation. For its part, the Department accepted that both her diabetes and her depression amounted to disabilities within the meaning of the Disability Discrimination Act 1995 and that she had therefore been a disabled person.
3. The core facts found by the Employment Tribunal were that Miss Macklin had first been employed by the Department in October 1979. Between 1997 and September 2001, she had worked for the Department on various projects, and had been promoted to the post of Senior Executive Officer in June 2001. Her managers knew of her diabetes, though Miss Macklin had not declared herself to be disabled, and had not asked for her diabetes to be accommodated in any way, except on one occasion, when she was working in a tower block and was concerned about the arrangements for the evacuation of the building in the event of a fire.
4. On 20 September 2001, Miss Macklin went on sickness leave. She was never to return to work again. The illness from which she was suffering was depression. Various reports were obtained from the Department's Occupational Health Service to see when she could return to work and what could be done to help her, but eventually a decision had to be made about her future. The decision was made that she had to be dismissed. Accordingly, by a letter dated 2 April 2004, she was given thirteen weeks' notice of her dismissal on the ground of her absence from work through sickness.
5. The law which related to the claim of discrimination on the ground of disability was that which applied when the acts which were said to amount to discrimination took place. Accordingly, the 2004 amendments, which took effect on 1 October 2004, did not apply, and the relevant provisions were sections 5 and 6 of the 1995 Act before they were repealed.
6. The findings of the Employment Tribunal were made by a majority. On the issue of discrimination, the majority made similar findings in relation both to the period between 1997 and 2001 when Miss Macklin had been working on various projects, and to the period between 2001 and 2004 while Miss Macklin had been on sickness leave. The majority of the Employment Tribunal found that the arrangements on which Miss Macklin's employment had been afforded to her had placed her at a substantial disadvantage in comparison with persons who were not disabled. In those circumstances, the Department had been under a duty pursuant to section 6 of the 1995 Act to take such steps as had been reasonable for it to have taken in order to prevent those arrangements having that effect. The majority of the Tribunal found that the Department had failed to take those steps and that its failure to take them could not be justified under section 5. The Department's failure to take those steps was also the reason why the majority found Miss Macklin's dismissal to have been unfair.
7. In the grounds of appeal, it is contended that the majority of the Tribunal erred in law in its identification of the arrangements on which Miss Macklin's employment had been afforded to her, both in the period between 1997 and 2001 while she was working on various projects, and during the period between 2001 and 2004 while she was on sickness leave. The effect of that was to prevent the majority of the Tribunal from properly carrying out the exercise of determining whether, as a result of those arrangements, Miss Macklin had been placed at a substantial disadvantage in comparison with persons who were not disabled. Even without that supposed error, it is contended that the majority of the Employment Tribunal erred in law in its approach to the question of whether the arrangements had in fact placed Miss Macklin at such disadvantage. In addition, it is contended that the majority of the Tribunal erred in law in its findings about the state of the Department's knowledge. It is said to have considered whether Miss Macklin might have been placed under such a disadvantage, when it should have considered whether she was likely to have been placed under such a disadvantage, and whether the Department had known of that likelihood. For all those reasons, it is contended that the majority erred in law in concluding that the Department had been under a duty to take such steps as had been reasonable for it to have taken to prevent those arrangements having that effect.
8. But the grounds of appeal go further. If the finding of the majority that the Department had been under such a duty withstands the challenge to it, it is contended that the majority of the Tribunal nevertheless erred in law in its identification of the steps which the Department ought to have taken to prevent the arrangements placing Miss Macklin at a substantial disadvantage in comparison with persons who were not disabled. It is also contended that the majority of the Tribunal erred in law in concluding that the Department had failed to take such steps as it should have taken, and that the Department's failure to take those steps could not be justified. Finally, if the majority of the Tribunal had erred in law in any of these respects, it is contended that the finding of unfair dismissal cannot stand, because that finding is predicated on the finding that Miss Macklin had been discriminated on the ground of her disability, which itself is flawed, to the exclusion of all other factors which section 98(4) of the Employment Rights Act 1996 required the Tribunal to consider.
9. We think that some of these grounds are more compelling than others, but we do not think that we should distinguish between them for the purposes of deciding whether the appeal should be allowed to go to a full hearing. In our view, these grounds of appeal, when taken individually or cumulatively, have sufficient prospects of success to justify a full hearing to consider them.
10. The Notice of Appeal contains two other groups of grounds of appeal. In one group, it is contended that the majority of the Tribunal erred in its management of the hearing and fell into procedural error. We do not think that the actual grounds of appeal in this group should be characterised in that way. Rather, they are particular features of the flawed approach which the Department criticises the majority for in its earlier grounds of appeal. In the other group, it is contended that the majority of the Tribunal failed to give any, or any adequate, reasons for some of its findings. Again, we do not think that all the grounds of appeal in this group should be characterised in that way. Rather, some of them are the consequence of the flawed approach which the majority is criticised for adopting. In short, the grounds of appeal in these two groups are sufficiently linked with the previous grounds of appeal that it would not right to deny the Department the opportunity to argue them. It follows that the appeal will proceed to a full hearing on all the grounds in the Notice of Appeal, unless any of them are abandoned in the meantime.