United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr T Croxford (of Counsel) Instructed by: Bar Pro Bono Unit 7 Gray's Inn Square Gray's Inn London WC1R 5AZ
For the Respondent	Mr A Short (of Counsel) Instructed by: Messrs Devonshires Solicitors Salisbury House London Wall London EC2M 5QY


 


SUMMARY

Disability Discrimination – Reasonable Adjustments

The Employment Tribunal was entitled to find that the Claimant had failed to prove that the Respondent Employer was aware of or should have been aware of his disability. This was a question of fact and its conclusion was one it could reasonably come to.


 


HIS HONOUR JUDGE SEROTA QC

1. This is an appeal by the Claimant from a decision of the Employment Tribunal at London South. Miss R A Lester was the Chairman. The decision is dated 31 March 2006. The Employment Tribunal held that the Claimant was disabled within the meaning of the Disability Discrimination Act 1995 but the Respondent did not discriminate against the Claimant by reason of his disability. The Employment Tribunal found that the Claimant had been dismissed by reason of conduct but the dismissal was unfair; the Respondent had failed to comply with the standard dismissal procedure set out in Part 1 Schedule 2 of the Employment Act 2002 and also by reason of serious defects in the procedure. The dismissal was accordingly unfair under Section 98(4) of the Employment Rights Act 1996. Finally, the Employment Tribunal held the Claimant was not in breach of the grievance procedure set out in Schedule 2 of the Employment Act 2002; and the Respondent did not fail to supply the Claimant with written particulars.
2. This appeal relates only to the dismissal of the Claimant's claims relating to disability discrimination and the claim that he was dismissed for a reason relating to his disability. Accordingly, we will say very little about the other matters before the Employment Tribunal. The matter came before Mrs Justice Cox on the sift, who directed it should be disposed of under Rule 3.7 of the Employment Tribunals Rules of Procedures as being in effect an inadmissible attempt to appeal on questions of fact. At a review before His Honour Judge Richardson on 22 November 2006 and on consideration of an amended Notice of Appeal he referred the matter to a full hearing, after, we would say, having had the benefit of submissions by Mr Croxford, who appeared then as he does before us under the Bar Pro Bono Scheme.
3. This is a convenient time to say how grateful the Employment Appeal Tribunal always is to advocates, such as Mr Croxford, who give up their time to represent unrepresented litigants either under the ELAAS scheme or through the Bar Pro Bono Scheme. Mr Croxford should know that our gratitude is sincere and we appreciate the debt that litigants, such as the Claimant, owe to Mr Croxford and his colleagues.
4. We are giving an extempore judgment and therefore will not be in a position to refer to every submission that was made before us although we have them all in mind together with the authorities to which we were referred.
5. We need to say something about the factual background to this appeal. The Claimant, it is accepted, suffers from post traumatic stress disorder. He is aged 33 and is of Somali origin. His mental condition is attributable to events during the Civil War in his homeland. Before the Employment Tribunal, the Respondent accepted and the Employment Tribunal found that he suffered from post traumatic stress disorder. We need therefore say no more about this save to note that at the time the relevant law required a mental illness, if it was to be classed as a disability within the meaning of the Act, to be a clinically well-recognised illness, see Schedule 1 to the Disability Discrimination Act since amended. As post traumatic stress disorder had a substantial and long term adverse effect on the Claimant's ability to carry out normal day to day activities the Employment Tribunal was satisfied that he was disabled within the meaning of the Act. This is not controversial so far as this appeal is concerned. Indeed, it is right to say that the clear medical evidence relating to the Claimant's disability is as a result of a medical report prepared for the Employment Tribunal at the instance of the Respondent's solicitors.
6. The Respondent, as its name suggest, is engaged in providing services including housing and other services to persons with drink problems and also other issues such as substance abuse, mental illness, offending behaviour, and homelessness. In 2002 or 2003, the precise date matters not for these purposes, the Claimant was employed as a housing worker at a 24 hour hostel in Croydon that accommodates people with alcohol problems. There were significant issues as to the Claimant's timekeeping and sickness absence. We refer to these later when we have to consider the question of the Respondent's knowledge of the Claimant's disability as found by the Employment Tribunal. The Respondent had a sickness and absence notification procedure of which the Claimant was aware; and the Claimant had been reminded on a number of occasions, in particular, of the need for there to be prompt notification of lateness or absence. The nature of the work carried out by the Respondent was such that it was important that cover could be arranged if a worker was unable to attend on time.
7. The Claimant's absences were such that in May 2004 Mr Graham Park, who was then the locum Team Leader, took it upon himself to write to the Claimant's general practitioner. He informed the doctor that: "Because of evident recent difficulties I have advised him to take time away from work and to seek medical advice". And he then says:

"To speed matters up, I thought it would be helpful to summarise my knowledge and observations.

1) Mr. Jama arrived in the UK as a refugee from Somalia where between 14 and 20 he experienced a series of distressing events as a result of the war in that country. This included the death of relatives and friends, witnessing of extreme violence, and a head injury.

2) He has recovered from this well, but reports a recent increase in symptoms including difficulty in concentrating, occasional extreme anger, irrational fears and anxieties, difficulty with sleep, and a very severe headache that begins beneath his head injury and spreads backwards across his head.

I am sure you will recognise as I do the link between these. He attended counselling about this some time ago, which he found helpful, but I understand discontinued it.

I think it significant that his recent increase in symptoms exactly matches the appearance of stories in the press and on TV about mistreatment of prisoners in Iraq."

8. As a result the Claimant's GP referred him for psychiatric assessment; and there is in our papers a letter from Dr Charles Amaefula, the Senior House Officer to Professor Graham Thornicroft, who wrote from the Tamworth Road Resource Centre. He had examined the Claimant and diagnosed him as suffering from post traumatic stress disorder. The letter was addressed, we assume, to the Claimant's GP, Dr Nina Arjun. However, this letter was not for reasons of patient confidentiality ever copied to the Respondent.
9. The Claimant's timekeeping did not improve and his sickness absences, which were significant, continued. Indeed on 8 September 2004 Pauline Oakley, who was then the locum Housing Manager at the Croydon hostel, wrote a memorandum in which she noted that concerns about the Claimant's level of sickness went back to December 2002. She concluded her report in the following terms:

"The concerns over his sickness levels have been going on for the last 20 months, support has been offered and still there has been no improvement. Despite conversations with Ahmed over the last month in which he reports he is seeing a psychotherapist for post traumatic stress disorder, and can bring in documents to evidence this, he has failed to do so."

10. As I have said lateness continued; and there were failures to comply with the Respondent's procedures in relation to prompt notification. He was referred to the Occupational Health Service on a number of occasions: and did not do so. He also failed to attend training sessions. This led to disciplinary proceedings being commenced against him which were adjourned to 5 January 2005. He was advised on that occasion to get a written report on his health. One of the concerns that were expressed as a result of the Claimant's time keeping and frequent absences was the effect on his colleagues. The Claimant was a key worker and his line manager could no longer trust him to carry out key work with clients. The Respondent was concerned that the Claimant's lateness had been causing colleagues distress because they felt having to stay behind to cover for him was unfair.
11. At the hearing that took place the Claimant said that there was no report available from his psychotherapist. Attempts were made then and there to contact the psychotherapist but he was unavailable. The Claimant was given a final warning and again referred to the Occupational Health Service. He did not appeal against this decision. We note that in a letter from the locum Director of Services, Deborah Cameron, who conducted the disciplinary hearing, she repeated that she was open to hearing from the Claimant's psychotherapist about his needs and treatment and indeed delayed the hearing to see whether a report could be obtained. She concluded that the Claimant was in breach of duty and had not taken the referrals to Occupational Health seriously. She was also satisfied that the Claimant had persistently failed to co-operate with the absence and sick leave procedures. The Claimant was warned that he must now comply with reasonable management instructions, including those with regard to sickness and absence, and absence reporting, and attendance at training; and any further failure to comply with instructions might result in his summary dismissal from the service. She made no finding in respect of the high level of sickness absence but noted that it had reduced recently.
12. Unfortunately, matters did not improve. On 28 January Mr Jama rang the hostel to say he would be 25 minutes late for his shift: in fact he turned up 1 hr and 20 minutes late. There was then a further period of sickness absence and, again, there were concerns at breaches of sickness procedure. A letter was received from Dr Sue Smith, Senior Clinical Medical Officer, of the Occupational Health Service, which had now been attended by Mr Jama on 22 February 2005. This letter bears careful reading. Dr Smith had seen Mr Jama, who had given her a clear history and in her opinion he seemed fit for normal duties. The reason, or one of the main reasons, he missed previous appointments was because of his concern about having to recount his experiences again as this caused him distress. There was a discussion as to appropriate therapeutic support. She considered that cognitive behaviour therapy might assist with the Claimant's general anxiety management. She said she had encouraged Mr Jama to try and maintain good attendance but had not requested any further medical information at this stage because it seems he had not seen his doctor much recently. Neither had she arranged another appointment. There is no reference in this letter at all to the fact that, if it were the case, Mr Jama suffered from post traumatic stress disorder. Mr Croxford submitted that nothing in this letter undermines the Claimant's case but it is startling in our opinion that there is no reference in this letter to the Claimant's disability.
13. On 24 February 2005 the Claimant was admitted to Mayday Hospital. He remained absent partly on sick leave and partly on holiday pay until 16 March when he arrived late with an explanation that did not satisfy the locum Housing Manager Mr Love. This led to his ultimate suspension and dismissal.
14. We should also mention a further letter that came from the Mayday Healthcare NHS Trust relating to Mr Jama. The date of the letter is by no means clear. It refers to his admission on 24 February 2005 and his discharge on 2 March 2005. The diagnosis was headache with upper and lower limb paresis which resolved. There was a reference to swelling of lower lip on the left side and the left sided angle of the mandible. There is no suggestion that we can see that he was suffering from any mental illness although he was referred, it would appear, to a psychological review.
15. A meeting took place between Mr Love and Mr Jama on 16 March 2005. Mr Jama, according to the notes of the meeting, gave an explanation as to why he was late on that occasion. He rang up the hostel to say he would be 10 minutes late but arrived almost an hour late. During the course of that meeting, according to Mr Love and a note he prepared, Mr Jama admitted that the explanation he had originally given about going to a pharmacy was a lie and said well "I was at the hospital to see a psychotherapist about getting medicine, because I thought things would happen with Pauline if I was late." He then said, "He had recently been in hospital with a swollen face and felt mentally insecure".
16. As a result of these two incidents on 28 January and 16 March: of misleading information being given as to when he was to arrive as compared with the time he did arrive at work; and also, to the explanation which he admitted was untrue in relation to the 16 March, he was called to further disciplinary proceedings. The disciplinary proceedings were conducted by Marcia Cummings, HR Manager, who in fact issued a letter of dismissal of 14 April 2005. The basis of the dismissal was: 'that the Claimant had not shown he had learnt from the previous disciplinary hearing; the Respondent could no longer trust him to work as a key worker in a direct access hostel; and his actions were continuing putting pressure on his fellow workers to stay past the end of their shifts'.
17. He appealed, and the appeal was heard by a Board Member, a Mr Richard Abraham. Mr Abraham taking all matters into account found there had been evidence of a consistent pattern on the Claimant's part of not complying to reasonable attendance requirements. There was evidence of a consistent pattern on his part of not complying with reasonable sickness requirements. And that the final written warning of 18 January was clear about the consequences of any future failure to comply with the Respondent's policies.
18. The Employment Tribunal investigated the question of the Claimant's medical history as best as it could with the material that was available to it. It referred, apart from the matters to which we have already referred, to the fact that on 21 November 2002 at a Supervision Meeting the Claimant had complained of being unable to sleep. He had referred in detail to the letter written to the Claimant's GP by Mr Park. It recorded the fact that when Miss Oakley became temporary manager of the Croydon hostel and she learnt by reason of the Claimant's absences he had been referred to the Occupational Health Service but had missed a number of appointments, she had an informal meeting with the Claimant and on that occasion, as we have already mentioned, the Claimant spoke of providing information from a psychotherapist which was never produced.
19. We now turn to consider the relevant statutory background:

"Disability Discrimination Act 1995, s 3A

Meaning of "discrimination" and "harassment"

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 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 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.]"

"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.

(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know-

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).]"

20. We now turn to the decision of the Employment Tribunal. On that occasion the Claimant was unrepresented; the Respondent was represented by Counsel. The Employment Tribunal referred to the facts as we have referred to them and as to the law; and there is no complaint as to the Employment Tribunal's self-direction. The critical paragraphs of the decision of the Employment Tribunal are these. At paragraphs 30 and 31 the Employment Tribunal gives its conclusions on disability discrimination:

"30. As set out above, the Tribunal decided that the Claimant is a disabled person within the meaning of the Disability Discrimination Act 1995. The Tribunal went on to examine whether or not the Respondent knew about his disability. On the one hand, the Respondent of course knew of the Claimant's record of frequent absence through sickness; Mr Park had raised his concerns about the Claimant's state of health on handing over to Ms Oakley, who was aware of mention of post traumatic stress disorder no later than September 2004 (pages 60 and 71 of R1). Ms Cameron declined to make a finding, at the disciplinary hearing, about the Claimant's sickness absence; she felt she had had no clear advice on what was wrong (page 106 of R1). Indeed, from as early as November 2003 the Respondent had made referrals of the Claimant to the Occupational Health Service and had tried to get him to attend, but he had persistently failed to do so. Certification notes provided by the Claimant to the Respondent in the main referred to various physical complaints, for example "stomach pain", and the matter of the Claimant's health was not put forward by him with any force or consistency until the disciplinary hearing in December 2004. Thereafter the Respondent continued to refer the Claimant to OHS: an eventual OHS report, dated 22 February 2005, stated that the Claimant "seems fit for normal duties". It was not until the medico-legal report dated 3 January 2006, obtained at the instance of the Respondent's solicitors, that following examination of the Claimant on 22 December 2005 a formal diagnosis of post traumatic stress disorder, with associated moderate depression and severe anxiety, was obtained (R6).

31. The Tribunal considered the duty to make adjustments set out in section 4A of the Disability Discrimination Act 1995. The Claimant did not put forward "a provision, criterion or practice" of the Respondent which was alleged to place him at a substantial disadvantage in comparison with non-disabled people. It might be that a provision requiring employees to report on time for their shift duties could be said to be a provision falling within section 4A(1) of the Act, but in any case the Tribunal, taking all the circumstances of this case into account, decides that the Respondent did not know, and could not reasonably be expected to know, that the Claimant had post traumatic stress disorder and was likely to be affected in the way set out in subsection (1): the Tribunal therefore holds that there was no duty on the Respondent, in relation to the Claimant, to take any steps as set out in section 4A(1) of the Act."

21. Also, at paragraph 33, the Employment Tribunal went on to consider the question of less favourable treatment which the Employment Tribunal, considering questions under Sections 3A(1), considered was not for a reason relating to his disability. Even if it were, the Tribunal although noting the case of H J Heinz v Kenrick [2000] IRLR 144 which held that there can be less favourable treatment for a reason relating to a person's disability when the employer has no knowledge of the disability as such, would have thought that knowledge or imputed knowledge of disability might need to be considered in looking at whether the treatment in question was justified as set out in paragraph 3A. The Employment Tribunal went on to make findings in relation to unfair dismissal, provisions of particulars and what have you. We need not refer to these in any detail.
22. We now turn to the grounds of appeal. Ground 1 relates to the alleged failure by the Respondent to make reasonable adjustments. The Claimant attacks the findings of the Employment Tribunal that the Respondent did not know and could not reasonably be expected to know of the Claimant's disability and of the fact he was likely to be affected in the way mentioned in Section 4A(1), that is

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

23. Mr Croxford has submitted that that decision is either perverse or is such as to show that the Employment Tribunal must have misdirected itself as to the law. We were taken very attractively by Mr Croxford both in his skeleton argument and in his submissions to the evidence to which we have referred. However, it seems to us, that this being a perversity appeal, the task facing the Claimant is a difficult one. As was made clear in Yeboah v Crofton [2002] IRLR 634 by the Court of Appeal the burden on a Claimant in such circumstances is almost overwhelming. We have very carefully considered the Employment Tribunal's conclusions at paragraph 30. We stress that the decision as to the knowledge or imputed knowledge of the Respondent is essentially a decision for the Employment Tribunal, which heard all the evidence, not us. We can only interfere if the only reasonable conclusion this Employment Tribunal could have come to on the evidence is that the Respondent knew or should reasonably have known in effect of the Claimant's disability and its effect upon him. Of course, there is no need for the Respondent to know the precise medical condition but, as it seems to us, all of the relevant factual matters are set out in paragraph 30 of the decision - those that support the Claimant's case, and those that support the Respondent's case. In our opinion, and it is neither here nor there whether we would have come to the same conclusion ourselves, we are unable to say that the decision of the Employment Tribunal was impermissible. We note that, despite the fact that the Claimant had on two occasions mentioned to the Respondent that he was receiving treatment for post traumatic stress disorder, he had failed to produce any evidence to support this; and that as the Employment Tribunal found, his sickness absences were generally described for the most part as being caused by physical complaints. The other symptoms of which he complained are not necessarily referable to post traumatic stress disorder, for example there are many other causes for persistent headaches or poor concentration. We make clear that in our opinion it is insufficient for an employer put on notice that a Claimant may be suffering from some illness simply to sit back and do nothing but that is not the present case. Here the Respondent attempted on a number of occasions to make enquiries as to what the problems were. It referred the Claimant to his general practitioner, it referred him to the Occupational Health Service, it asked the Claimant on a number of occasions for some documentation from his medical advisers, but nothing was provided. In our opinion, in the present case and on the facts before it, the Employment Tribunal was entitled to conclude that the Respondent did all that it could reasonably have been expected to do.
24. The second ground of appeal relates to the Tribunal's conclusion there was no provision criterion or practice that adversely affected the Claimant. This on the facts as found by the Employment Tribunal does not arise; and, for the reasons that we have given in relation to the first ground, it does not arise in the present case. The Employment Tribunal, however, has been criticised for not assisting the Claimant as a litigant in person with a difficult area of the law. However, the extent to which an Employment Tribunal intervenes in such a matter is within its wide and generous discretion. It did attempt to formulate a possible 'provision, criterion or practice' (PCP) that was not unfavourable to the Claimant. Those that were propounded by the Claimant are controversial and not supported by the evidence. However, at paragraph 31 the matter was considered by the Employment Tribunal; and on the basis of its findings that the Respondent did not know and could not reasonably be expected to know that the Claimant had post traumatic stress disorder and was likely to be affected in the way set out in Subsection 1, there was no duty on the Respondent to take any of the steps set out in Section 4A (1).
25. The third ground of appeal relates to misdirection on direct discrimination. In fact, if there was misdirection it was too favourable to the Claimant but it is not relevant to any of the issues on this appeal. We are not prepared to find that because the Employment Tribunal may have misunderstood the position in relation to direct discrimination it must necessarily have misunderstood other areas of the law where there is nothing further to suggest a misdirection.
26. The fourth ground of appeal relates to the submission that the dismissal was for a ground relating to disability; and the Employment Tribunal's findings that it was not are challenged. Mr Croxford has submitted that the Claimant was dismissed for lateness and the Employment Tribunal should have found that that was as a result of his disability. He suggests relying upon Meek v City of Birmingham District Council [1987] IRLR 250 and like cases where the Employment Tribunal has failed to give adequate reasons for its conclusions. The Employment Tribunal should have made findings as to the reasons for the Claimant's lateness; and the inadequacies of its factual findings were compounded by the admitted unfairness of the dismissal process and of failure of the dismissal letter to clearly set out the basis of the Claimant's dismissal.
27. The Respondent's case is that the Employment Tribunal in the passages that we have read made clear that the dismissal was for failure to comply with its rules and procedures. Further, even if the lateness was by reason of disability as opposed to the occasion for the breach of the rules, the reason for the treatment meted out to the Claimant was both material and substantial and thus justified under Section 3A(1)b. The Employment Tribunal, it was submitted to us by Mr Short, was bound to find that, had it gone on to consider questions of justification, could only have come to the conclusion that the treatment was justified; and we should so find and not remit the matter were we minded to accept that the dismissal was for a disability related reason.
28. The reasons of the Employment Tribunal are perhaps not as full as they might have been but it is clear on a careful reading of the decision that the Employment Tribunal accepted the Respondent's evidence as to the reasons for dismissal and, in particular, the respondent's case as to what had happened, both on the 28 January and 16 March. On each occasion, the Claimant had said he would be arriving within a relatively short time but, in fact, arrived significantly later thereby causing his colleagues to have to remain to cover him; and on the last occasion he had given a false explanation for his lateness. Even if the lateness as such was caused by post traumatic stress disorder there is nothing that we have seen to suggest that his failure to comply with his duty to report promptly any lateness was the result of the post traumatic stress disorder. Indeed in each case, the complaint is not so much that he did not telephone but when he did telephone he gave a wholly inaccurate and false estimate as to when he would arrive. We are satisfied that there is nothing to suggest that this was caused by his post traumatic stress disorder and it does not appear to have been suggested. We are satisfied that the Employment Tribunal gave sufficient reasons for its decision and the Claimant knew and knows why he was dismissed. We would, however, say that if a Claimant had satisfied us that he had been dismissed for a reason related to disability, we would have remitted the matter to the Employment Tribunal for decision because we do not consider that sufficient findings have been made that would enable us to say with sufficient certainty that the Respondent's treatment of the Claimant would inevitably have been justified.
29. Time does not permit us to refer all of the submissions; we, as I have said, have them all in mind as well as to the authorities to which we were cited.
30. We would like to thank Counsel for their helpful skeleton arguments and submissions; and to repeat our gratitude to Mr Croxford for appearing Pro Bono.