United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS I OMAMBALA (of Counsel) Instructed by: Messrs Field Fisher Waterhouse LLP Solicitors 35 Vine Street London EC3N 2AA
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


SUMMARY

Disability Discrimination – Reasonable adjustments

Unfair dismissal – Reasonableness of dismissal

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

Duty to make reasonable adjustments – DDA 1995, as amended; Ss3A(2); 4A; 18B. Questions to be determined by Employment Tribunal. Effect on finding of unfair dismissal.

Employment Tribunal duty to find the relevant facts. Appeal allowed; remission to fresh Employment Tribunal.


 


HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by the Secretary of State for Work and Pensions (Jobcentre Plus), the Respondent before the Liverpool Employment Tribunal, against the reserved judgment of an Employment Tribunal chaired by Employment Judge Robinson, promulgated with reasons on 17 July 2007, upholding the Claimant, Mr Heggie's complaints of unfair dismissal and disability discrimination in the form of a failure to make reasonable adjustments. We shall describe the parties as they appeared below.
2. At a preliminary hearing before a division presided over by HHJ Birtles the appeal was permitted to proceed to this full hearing by an Order seal-dated 20 November 2007. Paragraph 5 of that Order posed 5 questions to the Employment Tribunal under the Burns/Barke procedure. Judge Robinson responded to those questions by letter dated 23 January 2008. We have taken those answers into account in determining this appeal.
3. Today Ms Omambala of Counsel represents the Respondent to prosecute the appeal. The Claimant, who was represented below by Ms Bond, a solicitor, is now unrepresented due to lack of funding, as his solicitors explained in a letter to the EAT dated 1 April 2008 and does not appear. We have nevertheless taken into account the written representations submitted on his behalf for the purposes of the preliminary hearing before Judge Birtles' division.

The facts

4. Before considering the Employment Tribunal's self-direction as to the law and its application to the facts we are bound to say that in our view the Employment Tribunal's fact-finding was economical. We do not have the Employment Judge's Notes of Evidence, nor has any attempt been made to agree any relevant evidence given orally below. We have been provided with the witness statements of the Claimant and three witnesses called by the Respondent, namely Peter Hamer, the Claimant's line manager; Phil Crozier, Mr Hamer's line manager and the person who took the decision to dismiss the Claimant and Brian Kearsley, who heard the Claimant's appeal against that dismissal decision.
5. It is not, of course, our function to retry the facts. However, we think it necessary to refer to the way in which the parties' respective cases were put in evidence in order to flesh out the issues in the appeal.
6. The Claimant commenced employment with the Respondent Department on 31 October 1994. On 13 September 2002 he was promoted to the grade of HEO (Band D). In October 2003 he successfully applied for the post of DLA manager, responsible for a team of 20 staff.
7. He was based at an office in Norris Green, Liverpool. He also managed team members based in Rochdale and Preston. Their function was to investigate suspected fraudulent claims for the DLA form of benefit.
8. The Claimant went off sick in November 2004 following what he described as a mental health breakdown and a severe back condition. The Employment Tribunal summarise the following history at para 2 of their Reasons in this way:

"He (the Claimant) returned to work for a short period of time at the end of May and then only for a couple of days per week but then absented himself from 13 June 2005 for sickness reasons and never returned to work."

9. He was dismissed by Mr Crozier on 6 December 2005 on grounds of ill-health incapacity. His appeal was dismissed by Mr Kearsley following a hearing held on 13 February 2006.
10. At paragraph 27 of their Reasons the Employment Tribunal say:

"Throughout the period from his first absence in November 2004 through to the decision of Mr Crozier there is little the Tribunal can criticise."

And at para 28:

"28. Mr Hamer, when giving evidence, gave the impression of being a thoughtful and considerate individual who had carried out his obligations in relation to the Claimant well and thoroughly. Indeed the Claimant had little criticism of Mr Hamer and accepted that Mr Hamer had done much to assist him."

11. It appears from Mr Hamer's witness statements that what he did during the period November 2004 until 6 December 2005 included the following: when the Claimant went off sick in November 2004 he moved Mike Shepherd, another HEO manager, to take over management of the DLA team until the Claimant returned. Mr Hamer kept in contact with the Claimant whilst he was off sick; he first spoke to him on 17 December 204 when the Claimant felt able to do so. He saw the Claimant at home and the Claimant said he had suffered a breakdown and was seeing a psychiatric nurse two times a week on 21 December. Mr Hamer referred the Claimant to OHS on 24 December in order to obtain advice on how to manage his return to work.
12. A report was produced on 2 March 2005 and received by Mr Hamer on 18 March. Meanwhile, Mr Hamer saw the Claimant on 4 March to be told that he still felt unable to return to work.
13. Further regular contact took place between Mr Hamer and the Claimant until the latter's return to work on 9 May 2005. Mr Hamer's evidence was that the Claimant worked a total of 8 days during the 5 weeks until he went off-sick again on 13 June.
14. During that 5 week period Mr Hamer complied with the Claimant's request to inform staff that the reason for his absence was due to a back condition rather than depression, which the Claimant believed carried a stigma. Mr Shepherd continued to manage the DLA team whilst the Claimant occupied his self–contained office. Mr Hamer said this was to ensure that staff queries were dealt with by Mr Shepherd. The Claimant, however, stated (witness statement paragraph 3) that staff were constantly coming into his room raising queries. He felt unable to deal with that contact and said he felt pressurised when Mr Shepherd asked him if he wanted to take control of the over-time budget. Overall, he acknowledged that adjustments were made to ease him back by letting him take on responsibilities as and when he felt able to do so. In the event he lasted 5 weeks before going off sick again.
15. During his subsequent absence from work Mr Hamer spoke to the Claimant, he said extensively, and took advice from a member of the HR Department, Phil Preston. By 27 October 2005 the Claimant had exhausted his entitlement to contractual sick pay; 6 months at the full rate (plus full pay in June) and 6 months half pay.
16. The Claimant was referred to OHS again on 21 July 2005 by which time he had the support of a psychiatric nurse, Phil Winnard (referred to as Jenny Winnard in the witness statement of Mr Crozier).
17. OHS reported back to Mr Hamer on 6 September 2005 (the report was dated 25 August). Based on a physical examination on 17 August and a letter from Mr Winnard stating that the Claimant was unable to return to work; a return was possible in the near future but not in his present capacity; a less stressful position was necessary. OHS reported that the Claimant continued to suffer from depression and that he would be unable to return to work for the foreseeable future.
18. Mr Hamer then considered the possibility of alternative posts for the Claimant. His evidence was that there were no actual vacancies at HEO level (he had 8 such posts under his management). Simultaneously a headcount exercise was due to be carried out with a view to reducing staff members. Enquiries revealed that there was a surplus of HEOs in the North West Region. As to the possibility of a reduction in grade, the Claimant was adamant that he did not wish to downgrade, as the Employment Tribunal accepted (comments 23 January 2008 para. 5(i)).
19. During the period of the Claimant's absence Mr Hamer operated the Respondent's Attendance Management Policy. Under that Policy a final review meeting took place with the Claimant on 6 October 2004. On 11 October, having spoken to his nurse, the Claimant telephoned Mr Hamer and confirmed that he was not fit to return to work. He agreed with his nurse and medical advisors that he was not ready to return and, according to Mr Hamer, he recognised that could well lead to the termination of his employment. The Employment Tribunal make no express finding as to that assertion.
20. On 28 October Mr Hamer referred the matter to Mr Crozier, detailing the Claimant's history of employment and long-term sickness absence.
21. The issue for Mr Crozier was whether or not the Claimant's sickness absence could be sustained, or whether his employment should be terminated. He wrote to the Claimant on 2 November inviting him to a formal interview at which his psychiatric nurse could attend. He offered to meet him at home and asked whether he required any special arrangements. The Claimant responded by saying that he would not be attending and preferred to make written submissions. This was confirmed by his psychiatric nurse.
22. Having considered those submissions and reviewed the papers Mr Crozier concluded that the Claimant's employment should be terminated because there was no reasonably foreseeable return to work date for him.
23. Mr Crozier added (witness statement para. 29):

"… considerations of adjustments were premature given his inability to maintain active employment, and enquiries had been made to locate an alternative role at his own staff band but none were available and [Claimant] did not wish to downgrade."

24. The Employment Tribunal attached considerable importance to the comment "considerations of adjustments were premature" (repeated at para 32 of Mr Crozier's witness statement) in their reasoning; a point to which we shall return.
25. The Claimant was dismissed by Mr Crozier by letter dated 6 December 2005 with pay in lieu of notice. On 7 December he applied for ill-health retirement. We note from para 35 of Mr Crozier's witness statement that that application was successful. Whilst we have seen no evidence about the terms on which ill-health retirement was granted it is likely, in our collective experience, that a prerequisite would be that the employee is permanently unfit for further service.
26. Following his dismissal the Claimant also appealed to Mr Kearsley. At a meeting held on 13 February 2006, attended by the Claimant, his community health nurse and a representative, Lynn Killoran, Mr Kearsley considered the representations made on the Claimant's behalf and, according to his witness statement, para 10, a statement by the Claimant through his representative that he did not wish to return t work and that he had applied for ill-health retirement. The appeal was dismissed, Mr Kearsley's stated reasoning (on which the Employment Tribunal made no findings) being that both the application of the Attendance Management Procedure and OHS referrals had been done correctly; that when the Claimant returned to work briefly in May 2005 reasonable adjustments were made to rehabilitate him; no alternative post at the Claimant's grade was available and that although no stress risk assessment had been carried out when he had returned to work, such an assessment would not have allowed the Claimant to continue at work.

The claims

27. The Employment Tribunal identified two claims made by the Claimant; (1) unfair dismissal (2) failure to make reasonable adjustments, contrary to s4A read with s18(B) of the Disability Discrimination Act 1995. We take that from the judgment and the self-direction as to the law at paras 20-22 of the Reasons. It therefore appears that the Employment Tribunal was not considering claims of direct discrimination (DDA s3A(1)) or disability related discrimination (s3A(5)) but a claim solely under s3A(2) (not mentioned in the Employment Tribunal's self-direction). We note that at an earlier CMD held before Employment Judge Homfray-Davies on 15 December 2006 one of the issues raised was whether the Claimant's dismissal was an act of disability related discrimination.
28. In relation to the duty to make reasonable adjustments as defined in s4A read with s18B DDA we would particularly draw the attention of Employment Tribunals to the judgment of HHJ Serota QC in Environment Agency v Rowan [2008] IRLR 20, repeating the guidance given by Judge Serota in Berriman v Smiths Detection – Watford Ltd [2005] ALL ER (D) 56 (Sep) EAT and followed by HHJ McMullen QC in Ferguson v Barnet Council [2006] All ER (D) 192 (Dec) EAT. That approach, so far as is material here, requires the Employment Tribunal to identify:

(1) the provision, criterion or practice (PCP) applied by or on behalf of an employer

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

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

Only then can the Employment Tribunal go on to consider whether any proposed adjustment is reasonable; in particular, to determine what adjustments were reasonable to prevent the PCP placing the Claimant at a substantial disadvantage.

The Employment Tribunal decision

29. The Employment Tribunal's reasoning is contained at paras 23-34 of the Reasons. They found that Mr Crozier omitted to do things which he should have done. That omission made the dismissal both unfair and caused the Respondents to breach their duty to make reasonable adjustments (para 31).
30. The Employment Tribunal regarded Mr Crozier's evidence that he thought consideration of reasonable adjustments to be premature as a damning admission; he did not consider other alternatives (para 32).
31. At para 33-34 they say this:

"33. We accept that Mr Heggie might not have wished to be downgraded permanently but Mr Crozier could have relieved the pressure on Mr Heggie by considering a downgrade for a short period of time as suggested by Atos Origin in August (Dr Steve Wringer), given to Mr Heggie work of less responsibility and considered reducing his hours on a permanent basis. Mr Crozier focused in on the fact that there was no return date in the offing for Mr Heggie.

34. In short other adjustments could have been considered and they were not. Mr Crozier admitted as much by suggesting consideration of reasonable adjustments was premature. That was an extraordinary admission. By not considering reasonable adjustments Mr Crozier has unfairly dismissed the Claimant and failed in his duty under the Disability Discrimination Act 1995."

The appeal

32. Dealing with the duty to make reasonable adjustments, Ms Omambala submits first that, contrary to the guidance in Rowan and the earlier cases, the Employment Tribunal failed to identify the relevant PCP and secondly the resulting substantial disadvantage to the Claimant.
33. That submission is strictly correct. The Employment Tribunal did not expressly do so. However we bear in mind the written representations made on behalf of the Claimant at the preliminary hearing stage in this appeal, where it is submitted that impliedly the Employment Tribunal found:

(a) that the relevant PCP was the requirement to perform the full time role of a Band D officer and

(b) the resulting disadvantage was the fact that he was unable to perform that role whilst a Band D officer without a disability (we interpose, the appropriate comparator) would have been able to do so.

34. Assuming in the Claimant's favour that such findings may properly be implied we move to the next question which is whether, at the relevant time (dismissal) the adjustments which the Employment Tribunal found could have been considered (Reasons para 34) were reasonable, bearing in mind the extent to which those steps would prevent the effect in relation to which the duty is imposed (s18B(1)(a)) thus preventing the substantial disadvantage found (s4A(1)).
35. It is at this point that we accept Ms Omambala's submission that the Employment Tribunal fell into error. Having found as fact (and the evidence was agreed) that the Claimant did not wish to be downgraded, it seems to us inconsistent for the Employment Tribunal to find that downgrading for a short period of time was even a possible adjustment. The Claimant was not having it. Moreover, Mr Crozier's remark about reasonable adjustments being premature must be viewed in context. The Claimant was not fit to return to work in any capacity in the foreseeable future. Thus consideration of temporary demotion (even if he would have accepted it), reduced responsibility or reduced hours was premature. Until he was fit for some work those adjustments simply did not arise.
36. Put another way, how were such steps likely to cure the substantial disadvantage suffered by the Claimant, as identified above? Adjustments to the Claimant's role had been made in May 2005 by drafting in Mr Shepherd (whose involvement is not recorded by the Employment Tribunal in their findings of fact) on the Respondent's case, but the Claimant was still unable to cope and went off work never to return before his dismissal in December 2005. We agree with Ms Omambala's submission that the Employment Tribunal have not engaged with what was characterised as "the utility of the adjustments" by Judge McMullen in NHS Scotland v McHugh (UKEATS/0010/06/MT 15 December 2006 unreported), paras 43-45. If an adjustment will not prevent or limit the substantial disadvantage suffered by the Claimant it cannot be said to be a reasonable adjustment.
37. The next ground of appeal relates to the Employment Tribunal's finding in their reasons that Mr Crozier's evidence that he considered the question of reasonable adjustments to be premature was "damning". As Ms Omambala points out, the Judge's answers to the questions posed by the EAT following the preliminary hearing have given rise to an inconsistency. At para 33 of the Reasons the Employment Tribunal appear to adopt a temporary downgrading of the Claimant as a step which the Respondent could have considered. However, in answer to the EAT's question "what were the things Mr Crozier should have done?" the Judge's answer (para. numbered 5(i)) focused on a return to work with less responsibility which would not mean a downgrading, thus apparently abandoning the finding that a temporary downgrading should have been considered. Further, in that paragraph the Judge states that Mr Crozier did not enquire at the time of dismissal whether there was an alternative band D role available. That did not feature as a possible adjustment in the Employment Tribunal's original Reasons and disregards Mr Crozier's evidence, recorded at paragraph 16 of the Reasons under the general heading "The Facts", that enquiries had been made to locate an alternative role at his own staff band but none were available. That also reflects Mr Hamer's evidence (witness statement paras. 54-56) and that of Mr Kearsley (his witness statement para. 15), although Mr Kearsley's evidence does not rate a mention in the Employment Tribunal's Reasons.
38. Whilst on the Judge's comments, we agree with Ms Omambala that nothing there stated addresses the "utility point"; to what extent would the adjustments, whichever they may be given the conflict between the original Reasons and the Judge's comments, have prevented the disadvantage suffered by the Claimant? More specifically, how would those adjustments have got back to work an employee whose Community Mental Health Team had written to the Respondent on 25 October indicating that pressure to give them a date for his return to work was detrimental to his mental health (Reasons para 9)? There is no answer by the Employment Tribunal to those questions.
39. In summary, we accept Ms Omambala's submission that the Employment Tribunal's finding of a breach of the s4A duty is fatally flawed for the reasons which we have given and cannot stand. It necessarily follows that the finding of unfair dismissal, entirely dependent on the finding of failure to make reasonable adjustments, must also fall. Additionally, as Ms Omambala points out, the Employment Tribunal carried out no separate analysis of the fairness of the dismissal on grounds of capability, applying the test under s98(4) Employment Rights Act 1996.

Disposal

40. Ms Omambala urges us to find that the Employment Tribunal's decision in this case is legally perverse so that no purpose would be served by remitting the matter to a fresh Employment Tribunal for rehearing. No reasonable Tribunal, on the facts of this case, could conclude that the Respondent was in breach of duty under the DDA or that the Claimant's dismissal was unfair.
41. We cannot accept that submission. For the purposes of the appeal we have drawn extensively on the primary evidence before the Employment Tribunal; as we observed earlier we have not seen any notes of oral evidence given below and the Employment Tribunal's fact-finding is, in our judgment, incomplete. Whilst we are satisfied that the Employment Tribunal has materially misdirected itself in its application of the law to such facts as were found it is not our function to decide the facts. That must be for the Employment Tribunal. We bear in mid the guidance given by Burton P in Sinclair Roche & Temperley v Heard [2004] IRLR 763. In our judgment this decision under appeal is totally flawed, both in fact and in law, such that it would not be appropriate to return the matter to the same Employment Tribunal for rehearing. We note, from the Judge's comments that the parties were offered a review hearing which the Respondent declined. Having succeeded substantively on appeal it would be undesirable in terms of the Respondent's perception of fairness if the matter returned to the same Employment Tribunal.
42. In these circumstances we shall allow the appeal and direct that the matter be remitted to a fresh Employment Tribunal for complete rehearing.