United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	MR RICHARD GREGORY (Of Counsel) Instructed by: Messrs Hammonds Solicitors 2 Park Lane LEEDS West Yorkshire LS3 1ES

SUMMARY

DISABILITY DISCRIMINATION

Reasonable adjustments

The Tribunal dismissed a disability discrimination claim, holding that the employers had not failed to make reasonable adjustments to accommodate the employee who suffered from asthma. The EAT dismissed the appeal and held that this was plainly a justified conclusion on the facts.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This is an appeal against the decision of the Employment Tribunal sitting in Brighton, in which it dismissed the appellant's claims for unfair dismissal and disability discrimination. The appeal is limited to a challenge to one area of the Tribunal's decision only. This is its conclusion that the employers have not failed to make reasonable adjustments within the meaning of section 4(2) of the Disability Discrimination Act 1995. Although represented by counsel below, Mr Kahn is not represented before us today. He no longer acts through solicitors and has not submitted a skeleton argument. He applied yesterday afternoon for an adjournment on medical grounds but that was opposed and for reasons we have given separately, that application was refused. Therefore we have to determine this case on the basis of the grounds of appeal. The respondents are represented by Mr Gregory of counsel.

The background

2. We will summarise the background evidence relatively briefly, focusing only on those aspects of the evidence which relate to the issue now before us.
3. The appellant commenced employment with Royal Mail on 10 January 2000 as a postman. He began to suffer from ill health in January 2001 and was diagnosed with asthma. He was referred to the Employee Health Service (EHS) and saw an occupational health adviser in July 2001. At that stage she noted that he was receiving medication and was going to seek further advice on ways to manage his condition. He was once more referred to the EHS in January 2002. On that occasion the occupational health adviser noted that he did not use his medication as prescribed. He was then off work with breathing difficulties resulting from his asthma in early October 2002 and subsequently suffered more severe asthma attacks between the end of July 2003 and 11 March 2004 when he went off sick and indeed remained off sick until his employment was terminated in August 2005.
4. The appellant had stated that even before the fresh bout of asthma attacks from July 2003, he had been finding it increasingly difficult to complete his "walk" (i.e. his round). During 2003 the appellant had wanted to be referred back to the EHS and he had been told to obtain a letter from his GP, which he did. The GP considered that the asthma symptoms were related to the work in the sorting office and wanted an occupational health assessment. This took some time to arrange partly because, for one reason or another, the claimant was unable to attend appointments which were fixed. He was offered an appointment in August but did not attend. Finally, he was seen on 8 January 2004 by Dr Webb, who wrote this:

"Following your referral I saw this man on 8 January 2004 in Brighton. His asthma is much improved but recently he has been troubled with sinusitis. This is settling and I am happy that he returns to his usual delivery work on 12 January without restriction. Asthma is a chronic medical condition for which action under the DDA could be appropriate. At present, none is needed. In our conversation he asked if there was any administrative/computer work available in Brighton or Chesterfield. He says he has previously worked in this field. I do not know how he finds out about vacancies in these areas. No further appointment is required as a routine with EHS."

5. Dr Webb had not seen a report from the GP in which the GP had identified the dust from a vent in the sorting office as being the likely trigger for the asthma attacks. The GP had recommended that he should be placed in a completely different work environment away from the particular sorting office, and from a particular air vent which appeared to be causing problems. The GP repeated, by letter dated March 2004, that in his view the appellant should be placed on clerical duties only and not remain in the sorting office.
6. Attempts were made to find alternative work for the appellant. In October 2003 he was given the opportunity of doing "collection" work, which would have involved driving but would have removed him from the working environment. He refused it. Attempts were also made to find him administrative work. There were no vacancies in Brighton, as the trade union representative confirmed. There was a vacancy in Sheffield, and he was offered that in early 2004, but he rejected that also.
7. The claimant was seen by a Mr Beard on 5 April 2004 when the employers were giving serious consideration to terminating his employment on ill health grounds. The appellant indicated that he would have to consider a claim for race discrimination.
8. Subsequently, Mr Beard's position was taken over by Mr Singh. He met the appellant on 23 June 2004. He pointed out that the appellant had refused a job as a delivery driver and also the Sheffield job, and reiterated that there were no administrative jobs in Brighton. The Tribunal found that the appellant had at that meeting stated that he "had no confidence in Royal Mail" and that he "would not be looking to work there again."
9. On 5 July 2004 he made a bullying and harassment claim against Mr Beard. That was investigated and rejected and an appeal was dismissed. Meanwhile, he had lodged his first claim under the Disability Discrimination Act and the Race Relations Act on 21 September 2004.
10. During the course of the investigation, however, he was offered work outside the Brighton office, but rejected the offers. This was initially in September 2004 when such an offer was made by Mr Waterman, who was investigating the bullying and harassment complaint. The offer was repeated on 23 November 2004 when at another meeting with Mr Singh, the appellant was told that he could work in other mail centres within the Brighton area, there being some 71 different delivery offices and mail centres. He also was told that he could go back to the Brighton office with some adjustment in his duties. He rejected each of these possibilities. His contract was ultimately terminated on 17 June 2005, with nine weeks' notice. His effective date of termination was therefore 19 August 2005.
11. He presented a second complaint to the Tribunal on 17 November 2005. He withdrew the claim for race discrimination, but added a claim for unfair dismissal.

The law

12. The concept of disability related discrimination is defined in section 3A(1) as follows:

"3A(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."

13. Justification is defined by section 3A(3) in the following terms:

"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."

14. Section 4A(1) of the Act provides the duty to make reasonable adjustments. It reads:

"Where –

i. a provision, criterion or practice applied by or on behalf of an employer, or

ii. 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."

15. Section 18B identifies certain criteria which should be taken into account when considering what, if any, reasonable adjustments should be made, and also gives some examples of the kinds of steps which might be taken. These include transferring the disabled worker to fill another vacancy: see section18B(2)(c ).
16. The failure to comply with a duty to make reasonable adjustment is itself a form of disability discrimination: see section 3A(2). Moreover, when considering the question of justification under section 3A(1), that must be tested on the assumption that any duty to make reasonable adjustments had been complied with. This is made clear by section 3A(6):

"If, in a case falling within subsection (1), a person is under a duty to make 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."

The Tribunal's analysis.

17. The Tribunal noted and rejected all the claims and the only area covered by appeal concerns the failure to make reasonable adjustments.
18. The parties had, prior to the case being by heard by the Employment Tribunal, agreed a list of issues which identified the areas where it was alleged that reasonable adjustments may have been made. They were as follows:

"2. Examples of such treatment include, in summary:

i. Refusal by Mr Beard of Mr Khan's requests to be put on light/indoor duties while allowing others to do so;

ii. Refusal by Mr Beard to refer Mr Khan to EHS and delay of referral until August 2003;

iii. Refusal by Mr Beard to accept Mr Khan's concern that the vents he was working under aggravated his asthma;

iv. Mr Beard giving Mr Khan an unjustified first stage disciplinary warning;

v. Failure to pay Mr Khan while he was unable to come to work;

vi. Dismissal.

Examples of such treatment include, in summary:

a. The examples at paragraph 2;

b. Failure to alter Mr Khan's hours of work;

c. Failure to assign Mr Khan to a different place of work;

d. Failure to train Mr Khan to allow him to move to a new area;

e. Failure to provide other supervision and support

And where old s5(2) applies was that failure justified under s5(4)?"

19. The Tribunal considered each of these matters. They found that as a matter of fact Mr Beard did not refuse to put Mr Khan on light duties while allowing others to do so; that he was not personally responsible for any delay there might have been in referring Mr Khan to the Employee Health Service from when the appellant first requested that he be referred in January 2003 until an appointment was fixed in August 2003 (which the appellant in any event did not attend.). Mr Beard told him to get a letter from his GP to initiate that process, and that was the advice he was given from various others.
20. The Tribunal also rejected the appellant's contention that Mr Beard refused to accept that the working environment had aggravated his asthma. They found, on the contrary, that Mr  Beard had moved the frame which was the area where the appellant had to prepare for his walk, so as to place him beyond the immediate vicinity of the vent.
21. As to the first stage disciplinary warning, the Tribunal accepted that it had nothing to do at all with the disability. The appellant, Mr Khan, had been warned because he was not wearing the right type of footwear and possibly as a consequence had injured his ankle.
22. Finally, the Tribunal considered that in the light of cases such as Nottinghamshire County Council v Meikle [2004] IRLR 703 (CA) and London Clubs Management Ltd v Hood [2001] IRLR 719 (EAT), it was not unreasonable to fail to pay Mr Khan while he was unable to work because of his illness. The employers had complied with their own sick pay provisions and paid him properly in accordance with those procedures.
23. As to the other matters, the Tribunal said this at paras 68 to 70:

"In respect of the failure to alter Mr Khan's hours of work, the Tribunal note that the Royal Mail, through Mr Singh and Mr Waterman, offered Mr Khan the opportunity to return to work on a rehabilitation basis. Mr Khan's response was a simple refusal. Although Mr Khan stated in an e-mail dated 29 November 2004, that he would be willing to return to work once he was recovered, the Tribunal is satisfied that, at that stage, Mr Khan had no real intention of returning to work with the Royal Mail.

Mr Khan complains of a failure to assign him to a different place of work. The Tribunal rejects this complaint. Within the Brighton office it was not possible to assign Mr Khan to work in any area where he would not have been in contact with the vents which apparently caused him problems. There were, in any event, no vacancies in any administrative roles for him to carry out in the area. He was offered the opportunity of working in other areas in other offices. He refused those offers. The Tribunal therefore rejects that part of Mr Khan's complaint.

Mr Khan complains of a failure to train him and allow him to move to a new area. We have heard evidence that Royal Mail was cutting jobs. There were no administrative jobs available in the Brighton office. There were a limited number of roles to be performed of an administrative nature in the Book Room. There were no vacancies available in the front office. In any event, the front office would have meant that the Claimant was still in contact with the vents. The Tribunal is not satisfied that the Royal Mail did fail to allow Mr Khan to move to a new area. We do not consider that it would have been reasonable to require Royal Mail to train Mr Khan in respect of another role, which as yet remains unidentified, in some other part of their organisation."

The grounds of appeal

The first ground of appeal.

24. There are three grounds of appeal. The first is that the Tribunal at no stage have identified the date when the appellant first became disabled within the meaning of the 1995 Act. However, as Mr Gregory points out, there was no reason why they should have done so. It was conceded that at all relevant times the appellant was a disabled person because of his chronic asthma. This is why it was not an issue which the Tribunal had to determine and was not identified in the list of issues. There can be no criticism of the Tribunal failing to make a finding on something which is of no materiality.

The second ground of appeal.

25. The second ground rests upon an observation of Lord Justice Hooper in O'Hanlon v Commissioners for Revenue & Customs [2007] IRLR 404 at para 23 when he said this:

"There is a close relationship between (disability related discrimination and failure to make reasonable adjustments form of discrimination). Section3A(6) provides that treatment can only be justified under subsection (1) if it would have been justified even if the employer had complied with any duty to make reasonable adjustments. It follows that logically it makes sense to consider the question of reasonable adjustment disability discrimination first. This was made clear by Lord Rodger of Earlsferry in the case of Archibold v Fife Council [2004] ICR 954, para 32."

The submission here is that the Tribunal failed to adopt that approach. They considered the question of disability related discrimination prior to focusing on the issue of reasonable adjustment.

26. That is not, however, an error of law. Had they concluded that there was a failure to make reasonable adjustments, then by virtue of section 3A(6), they would have been required to go back to consider the issue of disability related discrimination again to see whether any such discrimination would have been justified even had the relevant reasonable adjustments been made. In the event that was not necessary because the Tribunal found that there was no failure to make reasonable adjustments. The Tribunal analysed the issues in the order in which they had been drawn up in the list of issues that had been placed before them. It was not the best or most logical order, but dealing with the issues in that way reveals no error of law and the outcome would have been precisely the same if the Tribunal had adopted the more logical order suggested by Lord Justice Hooper.

The third ground of appeal.

27. The third ground submits that the Tribunal erred in analysing the question of reasonable adjustments because they did not consider what adjustments should have been made by the respondent in the light of Baroness Hale's comments in Archibold v Fife Council [2004] ICR 954 at para 47, that the effect of the legislation is that "more favourable treatment was required" of disabled employees. (All the Tribunal's conclusions were challenged save with respect to the decision to dismiss itself because no permission was given to argue that point.)
28. We reject this ground also. The Tribunal plainly recognised that there may be circumstances where adjustments will need to be made which will involve more favourable treatment of the disabled employee than would be afforded to the non-disabled. The crucial question is what steps are reasonable in the circumstances. The Tribunal considered each of the matters that had been identified by the appellant as potentially requiring some adjustment. They found that Mr Beard had acted at all times reasonably and had not acted in a way which Mr Khan had contended. They considered the issue of whether the employers ought to have altered the hours or found other work, and they concluded that steps had been taken which were reasonable in the circumstances and that there was no obligation to create a job where none existed. Nothing in section 18B requires them to do so and, as Mr Gregory points out, in Archibold itself the House of Lords held that the Tribunal was entitled to find that the employers should have offered an existing vacancy. No-one suggested that some artificial job should be created, or that the disabled employee should be permitted to do a job which he or she is not competent or qualified to do.
29. In this case Mr Khan had been offered work in other offices in the region; he had been given the chance of becoming a delivery driver; and he had been offered a post in Sheffield. We do not, of course, suggest that he should have taken any of these jobs. It was his right to refuse them, but in those circumstances the Tribunal was plainly entitled to conclude that the employers had made reasonable adjustments to seek to accommodate his asthmatic difficulties.
30. The Tribunal was in our view also entitled to conclude that it was not reasonable to expect the employers to train him for some unidentified job in another part of the organisation, particularly given the steps they had taken to find alternative employment for him. Furthermore, at least by the middle of 2004 he had set his face against remaining in employment with the Post Office in any event.
31. The only issue where the Tribunal did not, in our judgment, properly approach the question of reasonable adjustment was in their analysis of the failure to pay Mr Khan for the whole period when he was off sick. The two authorities on which they relied were considered by the Court of Appeal in the O'Hanlon case, to which we have made reference. The Court of Appeal rejected an analysis based upon the London Clubs case, and which seems to have been the reasoning of the Tribunal here, that compliance with sick pay procedures was of itself necessarily sufficient to defeat a claim of disability discrimination: see paras 84-85 of the judgment. However, neither can the Meikle case be relied upon in favour of a general proposition that such payments should be made. In the EAT in O'Hanlon this Tribunal had expressed the view that Meikle laid down no such principle and that it would only be "in a very rare case indeed" that a disabled employee would have to be paid higher sick pay as a reasonable adjustment: see [2006] IRLR 840, para 67. In the Court of Appeal, Hooper LJ expressed the view that there was "much force" in that approach: para. 57. The purpose of making reasonable adjustments is to facilitate the return to work of a disabled employee; it is not to provide a hand out over and above the sick pay that would be paid to others if they were absent from work. We see nothing here which would make this a special case where the obligation to make extra payments is even arguable.
32. Accordingly, we are satisfied that even had the Tribunal approached this issue properly, they would inevitably have come to the same conclusion. The error of law was not therefore material.

Disposal

33. For all these reasons therefore, this appeal fails.