United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S FATIMA (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 10-22 Victoria Street Bristol BS99 7UD
For the Respondent	MISS E SMITH (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Landore Court 51 Charles Street Cardiff CF10 2GD


 


SUMMARY

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

- Disposal of appeal including remission

Disability Discrimination - Reasonable adjustments

Unfair Dismissal - Constructive dismissal

Employment Tribunal reasons – duty to make reasonable adjustments – Constructive dismissal. Remission to same Employment Tribunal.


 


HIS HONOUR JUDGE PETER CLARK

1. The parties before the Bristol Employment Tribunal in this disability discrimination claim were Mr Dolan, the Claimant and the Chief Constable of Avon & Somerset Constabulary, the Respondent. We shall so describe them. We have before us for full hearing an appeal by the Respondent against four separate findings made by an Employment Tribunal chaired by Employment Judge Toomer, sitting on 16 -19 July 2007, contained in a reserved judgment promulgated with reasons on 24 August 2007.

Background

2. The Claimant was a police officer with the Respondent's force. His service commenced on 6 October 1975; he was promoted to Sergeant in 1990 and to Detective Inspector in the CID on 12 May 2003. He successfully passed both the 4 and 8 months reviews as an Inspector, however in March 2004 he began to complain of stress relating to matters outside his work and was absent from work from 16 September 2004 until 9 January 2005 "due to psychiatric ill health". During that period of sick absence he was seen by the Force Medical Adviser (FMA) Dr Eveline Forster. On 9 December 2004 she noted, having examined him the previous day, that he was suffering from "mental health symptoms".
3. His progress following his return to work in January 2005, leading up to his resignation which took effect on 9 October 2006, is fully set out in an Agreed Chronology and Statement of Facts placed before the Employment Tribunal, augmented by the Employment Tribunal's findings at paras. 3 - 36 of their reasons. We shall refer to the facts insofar as they are relevant to the grounds of appeal.

The Claim

4. By his claim form ET1 presented on 8 December 2006 the Claimant contended by reference to the Disability Discrimination Act 1995 (as amended) (DDA):

(1) that he was disabled. By the time of the Employment Tribunal hearing the Respondent had admitted that the Claimant was disabled "as a result of a partially treated depressive illness".

(2) that the Respondent had subjected him to disability related discrimination contrary to Ss.3A(1),4(2)(d) and 64A(1) DDA.

(3) that the Respondent had failed to make certain reasonable adjustments contrary to s3A(2), 4A(1), 18B and 64A(1) DDA.

(4) that he had resigned in circumstances amounting to constructive dismissal within the meaning of s4(2)(d) read with 4(5)(b).

Further complaints of direct discrimination (s3A(5)) and harassment (s3B) were not pursued.

The Employment Tribunal's Conclusions

(1) Duty to make reasonable adjustments

5. The Employment Tribunal found:

(i) the Respondent might reasonably be expected to have known that the Claimant was a person with a disability for the purposes of s4A(3) (reasons paras 39 - 43): 'constructive knowledge'.

(ii) that the Respondent was not in breach of the duty imposed by s3A(2) in the following respects:

(a) following the practice that if a serving officer is unable to perform his role through ill health he may be required to retire (paras. 44 - 45).

(b) failure to allocate to him duties with which he was familiar, as opposed to his being asked to carry out a review of the force's vehicle fleet (para. 46).

(c) proper consideration of his redeployment elsewhere (para. 47).

(d) the practice of placing officers on half pay after a given period of sick absence (paras. 52 - 53). That practice was not enforced in the Claimant's case.

(iii) however, the Respondent was in breach of the duty to make reasonable adjustments in these respects:

(a) not differing the application of the unsatisfactory performance procedure (UPP) to the Claimant and the requirement of imposing and re-imposing objectives under the personal development review (PDR) procedure until such time as it may have been established that performance issues were separate from the Claimant's disability rather than arising from it (para. 50).

(b) not deferring the application of the unsatisfactory attendance procedure (UAP) to the Claimant (para. 51).

(2) Disability related discrimination

6. In relation to this complaint the Employment Tribunal found:

(i) that the Respondent was not in breach of his s3A(1) duty as follows:

(a) in allocating the Claimant to the role of Operational Incident Manager (OIM). Although that was less favourable treatment for a reason related to his disability and constituted a detriment the Respondent had justified that treatment under s3A(1)(b) and (3) (paras. 54 and 56).

(b) in putting him onto the vehicle fleet review. Whilst that was less favourable treatment it was justified (para. 56) and did not amount to a detriment (para. 57).

(c) subjecting the Claimant to the general review process did not amount to less favourable treatment (para. 58).

(d) nor was it less favourable treatment for the Respondent to further consider redeployment after his return to work in January 2005, nor to attach conditions to the offer of a supernumerary position within CID for a six month period (para. 62).

(ii) However, the Claimant's complaint of disability related discrimination was upheld in three respects:

(a) subjecting the Claimant to the UPP and UAP procedures (para. 59).

(b) comments made to the Claimant by, then Chief Inspector, Sandy Padgett (paras. 60 - 61).

(c) a threat to place the Claimant on half pay contained in a letter signed by Miss Padgett and dated 18 August 2006, notwithstanding an earlier unequivocal promise by Mr Hazel, Head of Corporate Human Resources that the Claimant's pay would not be reduced if he accepted the supernumerary CID role, an offer which the Claimant had accepted (para. 35). The Employment Tribunal's reasoning on this issue is at para. 63.

(3) Constructive Dismissal

7. The Employment Tribunal concluded (para. 64) that the Respondent's failure to make reasonable adjustments, as found, and the proven acts of disability related discrimination taken together led the Claimant to conclude that he had lost trust and confidence in the Respondent and that was the reason for his resignation. "The Respondent thus engaged without reasonable cause in conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence …"

The Appeal

8. The Respondent challenges four of the Employment Tribunal's findings adverse to him (there is no cross-appeal by the Claimant); they are; in convenient order:

(1) The constructive knowledge issue.

(2) The threat of half pay issue (disability related discrimination).

(3) The application and non-deferral of the UPP and UAP procedures (reasonable adjustments).

(4) Constructive dismissal.

We shall consider each of these issues in turn.

Constructive Knowledge

9. s4A(3) DDA provides:

"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-

…

(b) … that that person has a disability and is likely to be affected in the way mentioned in subsection (1)" [the duty to make reasonable adjustments]

10. The Employment Tribunal found as fact that following his return to work in January 2005 the Claimant was reported on by Dr Forster on a further seven occasions at the request of either Ms Walsingham of Human Resources or Miss Padgett. On none of those occasions was she asked in terms, nor did she proffer an opinion as to whether the Claimant was disabled within the meaning of s1 DDA.
11. That the question was not asked strikes us as extraordinary given (a) his symptoms (b) his deterioration in performance following his initial absence from work (c) the Claimant's own self-assessment on 6 March 2005, when he ticked the box on his self review form for a Personal Development Review which asked whether he had a physical or mental impairment which has a substantial long term adverse effect on his ability to carry out normal day to day activities (the s1 DDA definition of disability) (d) the guidance to the police service (referred to at para. 42 of the Employment Tribunal's reasons), a copy of which has been provided to us by Miss Smith following our hearing, which advises line managers to ask certain specific questions, including 'Does the officer's condition fall within the scope of the DDA' and (e) the relevant provisions of the Disability Rights Commission Code of Practice (the 2004 Code), which apply to Police Officers (paras. 3.11 and 9.23), and states, at para. 5.12 'The employer must, however, do all it can reasonably be expected to do to find out whether the employee has a disability and is likely to be placed at a substantial disadvantage'.
12. More significantly, the Employment Tribunal concluded that, for the reasons listed at para. 42, the Respondent ought reasonably to have known that the Claimant had a disability (para. 43). The Respondent had the necessary constructive knowledge to negative the statutory defence, provided to the Respondent under s4A(3), to a claim brought under s4A(1).
13. In challenging that finding Miss Fatima takes the following points:

(1) that the FMA effectively advised Miss Padgett that the Claimant was not disabled.

(2) that the Employment Tribunal was wrong in law to reject the FMA's opinion.

(3) that in the circumstances the Employment Tribunal failed to follow what is submitted to be the correct approach in law, namely to ask itself whether the employer took decisions (here, invoking the UPP procedure on 2 August 2005 and the UAP procedure on 6 March 2006) in accordance with the properly formed medical opinion of a qualified doctor.

14. We reject each of those submissions. As to the first and second points we agree with Miss Smith that the FMA, reading her brief reports, never gave her opinion one way or the other as to whether the Claimant was disabled within the mean of the Act and thus the Employment Tribunal did not reject her opinion; she was not asked the question and did not purport to answer it of her own motion. In particular, she was never shown the Claimant's self-review form of 16 March 2005. The Employment Tribunal reached a wholly permissible finding to that effect on the facts: see Jama v Alcohol Recovery Project (UKEAT/0602/06 17 April 2007) para. 23 per HHJ Serota QC. Miss Fatima has failed to dislodge that finding by submitting that enquiries by Miss Padgett of Dr Forster (a) as to the Claimant's performance, to which the answer in June 2005 was that the majority of the issues are non-medical and (b) whether there were any clinical or medical reasons why he could not do his work, to which the answer in February 2006 was that, with the adjustments that had been made, he ought to be able to do the work of an Inspector and she could see no reason why he could not do so (reasons, para 29), amounted to a properly formed opinion from the doctor that the Claimant was not disabled. On the contrary, whilst findings of fact, provided they are supported by evidence, are for the Employment Tribunal, we cannot help but note the reference to adjustments (a DDA term) in the discussions between Miss Padgett and Dr Forster held on 25 February 2006 (referred to at para. 38 of Miss Padgett's witness statement, which is within our bundle) and Dr Forster's comment in her note to Miss Padgett dated 17 June 2005 that an enclosed Home Office document explaining recuperative and restricted duties was "prior to DDA being applicable to Police Officers" (presumably a reference to s64A of the Act, which came into force on 1 October 2004). Those references to the DDA and its provisions might suggest, far from Dr Forster forming the view that the Claimant was not disabled, that she, without articulating her views, considered that he was disabled.
15. On this basis we can deal shortly with Miss Fatima's third point. Her proposition is derived from the Court of Appeal approach in Jones v Post Office [2001] IRLR 384. That case was concerned with the employer's defence of justification under the Act and in particular the scope of an Employment Tribunal's discretion to assess for itself the effect of medical evidence relied on by the employer. The Court applied a test 'not very different' from the range of reasonable responses test applied to the question of fairness of a dismissal under s98(4) ERA 1996.
16. We see the possible application of the Jones test (yet to be considered by the House of Lords) to the statutory defence under s4A(3); if the employer asks the question, "is this employee disabled within the meaning of the Act" and receives a properly formed opinion from a medical practitioner that he is not, then in acting on that advice and not making what would otherwise be reasonable adjustments under s4A(1) he will not be in breach of duty provided his response fell within the range of reasonable responses open to him.
17. However, in the present case we are satisfied that the Respondent, through Miss Padgett, did not act in accordance with the properly formed opinion of Dr Forster that the Claimant was not disabled. We repeat, the doctor was not asked and did not venture an opinion one way or the other. Accordingly the circumstances posited by Miss Fatima's reference by extension to the Jones test do not arise.
18. The final point raised by Miss Fatima is the Employment Tribunal's failure to identify the time at which the Respondent was fixed with constructive knowledge of the Claimant's disability. True it is that no specific date is identified by the Employment Tribunal in their reasons, however, we infer that it was a date prior to the relevant adjustments which the Employment Tribunal found ought reasonably to have been made (the first of which was 2 August 2005, the commencement of the UPP procedure). Given that the Respondent imposed no time limit on his concession, for the purposes of the Employment Tribunal hearing, that the Claimant was disabled; that the Claimant described himself as disabled in his self review form on 16 March 2005 and the occasions when the Claimant was seen by Dr Forster between that date and 2 August (14 April, 18 May and 20 July) the Employment Tribunal's implicit finding that the Respondent had constructive knowledge prior to 2 August 2005 is unassailable in both fact and law.
19. For these reasons we dismiss this ground of appeal.

Threat of Half pay

20. The Employment Tribunal was not here concerned with the question whether placing a disabled employee on reduced sick pay amounted to a failure to make a reasonable adjustment (continuing full pay) or disability-related discrimination raised in Nottinghamshire County Council v Meikle [2004] IRLR 703 and O'Hanlon v Commissioners for Inland Revenue and Customs [2007] IRLR 404 (both CA). Rather, since the Claimant's pay was never in fact reduced prior to his resignation effective on 9 October 2006, the issue was whether the threat made by Miss Padgett to do so in her letter of 8 August 2006 was an act of disability related discrimination.
21. Applying the statutory framework, the following questions arise:

(1) Was that threat made for a reason which relates to the Claimant's disability and did it amount to less favourable treatment (s3A(1)(a))?

(2) If so, can the Respondent justify that treatment? (s3A(1)(b) read with s3A(3); since there was no failure here to make reasonable adjustments s3A(6) is not engaged.)

(3) If not, has the Claimant been subjected to a detriment (s4(2)(d))?

22. The Employment Tribunal answered those three questions in the Claimant's favour (para 63). They found (1) that the threat of half pay was plainly for a reason related to his disability (and, we infer, would not have been applied to a comparator); Miss Fatima does not challenge that finding. (2) The Claimant genuinely and reasonably felt himself at a disadvantage because of it (that, we are satisfied, is a reference to the test for determining whether the Claimant has been subjected to a detriment formulated by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 258, to which the Employment Tribunal referred themselves at para 54 of their reasons); and (3) that it did not appear that the Respondent was in a position to justify its [sic] actions over the half pay issue.
23. Miss Fatima challenges the second and third findings of the Employment Tribunal. As to detriment she submits that it is unclear what detriment is said to have been suffered by the Claimant as a result of the 'threat' by Miss Padgett. Further, she contends that it is unclear from the Employment Tribunal's reasons why the Employment Tribunal found that the Respondent was not in a position to justify his actions.
24. In response, Miss Smith argues that the Employment Tribunal's finding as to detriment entirely accords with the approach set down by Lord Hope (paras. 35, 37) and Lord Scott (paras. 104 - 5) in Shamoon and the finding that the Respondent had not justified the less favourable treatment must be read in the context of the special circumstances surrounding Miss Padgett's letter set against the Claimant's acceptance of Mr Hazel's unequivocal offer.
25. In our view the answer lies between both sets of submissions by Counsel. We accept Miss Smith's submission that the Employment Tribunal permissibly found that the Claimant suffered a detriment in the Shamoon sense; the Claimant felt at risk of having his pay reduced notwithstanding Mr Hazel's indication that he would not be at risk if, as happened, the Claimant accepted the offer of the supernumerary CID role. However, we agree with Miss Fatima that the Employment Tribunal failed to explain why they rejected the Respondent's justification defence and in particular, the explanation that Miss Padgett signed the letter of 18 August (on behalf of her superior, Chief Superintendent Andy Marsh), without detailed knowledge of what was going on. Our reading of para. 63 of the reasons suggests to us that as a matter of fact the Employment Tribunal accepted Miss Padgett's evidence on this point. The question then to be answered is whether what may be characterised as an administrative error amounts to justification which is both material to the particular circumstances of the case and substantial (s3A(3)). We do not see an answer to that question by the Employment Tribunal. How that lacuna in the Employment Tribunal's reasoning is to be filled we return to later.

Reasonable adjustments

26. Having upheld the Employment Tribunal's finding as to the Respondent's constructive knowledge we turn now to the substantive findings of breach of the s4A(1) duty made by the Employment Tribunal and challenged on appeal.
27. The proper approach for an Employment Tribunal to take when considering an alleged breach of s4A(1), read with s18B (and now bearing in mind the application of the 'reverse burden of proof'; s17A(1C)) was considered and guidance given by HHJ Serota QC in Smiths Detection v Berriman (UKEAT/0712/04 and 0144/05/CK. 9 August 2005. Unreported); see para. 85. That approach was endorsed by HHJ McMullen QC in Ferguson v London Borough of Barnet [2006] All E.R. (D) 192; applied by a division on which I sat in Romec v Rudham (UKEAT/0069/07/DA. 13 July 2007. Unreported); see particularly paras. 39 - 40 and further affirmed by Judge Serota in Environment Agency v Rowan [2008] IRLR 20, paras. 26 - 27.
28. The Employment Tribunal should identify:

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

(2) the physical features of premises occupied by the employer;

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

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

29. Having carried out that stepped exercise the Employment Tribunal, before concluding that a particular adjustment is reasonable, must consider the extent to which the adjustment would prevent the PCP having the effect of placing the Claimant at a substantial disadvantage in comparison with the appropriate comparator. That is the first of the considerations set out at s18B.
30. In the present case, having referred to Berriman (para. 37) and we are told, having had Romec cited to them, the Employment Tribunal found (1) that the relevant PCP was application of the UPP and the requirement that he continue with performance assessments for the purposes of establishing the Claimant's competencies as an Inspector and (2) that these practices placed the Claimant at a substantial disadvantage compared with officers who were not disabled and that the Respondent should have appreciated that fact (para. 48). There is no challenge on appeal to those findings.
31. The adjustment contended for by the Claimant was that the Respondent ought to have deferred the operation of those procedures until the Claimant was restored to health (para. 49).
32. In accepting that a failure to defer those procedures amounted to a breach of the Respondent's duty to make reasonable adjustments (para. 50) the Employment Tribunal reasoned that (a) the Respondent at no time considered whether the performance issues affecting the Claimant were not separate from the health issues but were inextricably bound up with them (b) that once the Respondent knew or ought to have known that the Claimant was disabled it would have been a reasonable adjustment to its normal practice to avoid imposing objectives under the PDR and commencing an UPP until such time as it may have been established that the performance issues were separate from the Claimant's disability rather than arising from it. They noted that there were only two cases of the UPP being employed by the Respondent during the preceding five years. (c) Nothing in the Respondent's evidence or argument amount to a justification for the Respondent's failure to make that relatively straightforward adjustment.
33. The Employment Tribunal applied similar reasoning to the Respondent's application of the UAP (para 51).
34. In challenging those findings Miss Fatima makes the point, correctly, that whereas prior to the amendments to the DDA implemented by S.1.2003/1673 with effect from 1 October 2004 it was possible for an employer to justify a failure to make reasonable adjustments, that defence is no longer open to the Respondent employer (see s3A(2)). Thus, whilst considering justification does not put this Respondent at a disadvantage in relation to the Employment Tribunal's conclusions on this issue it is, as Miss Fatima submits, an indication that the Employment Tribunal did not properly engage with the issue as a matter of law.
35. Substantively, Miss Fatima submits that at paras. 50 - 51 the Employment Tribunal fell into what she characterizes as first, the 'Romec error' and secondly, the 'Berriman error'.
36. The Romec error, she argues, lies in the Employment Tribunal's failure to consider the extent to which deferring the procedures would prevent the considerable stress caused to the Claimant, being the substantial disadvantage which he was found to have suffered comparably.
37. The Berriman error lay in assuming, without having medical evidence on behalf of the Claimant, that deferral of the procedures would or might take away the stress suffered by the Claimant. She has referred us to the observation of Judge Serota in Berriman, para 88, that where a Claimant's disability relates to his mental health some medical evidence is likely to be required as to the effectiveness of any proposed adjustment.
38. Whilst we agree with Miss Smith that in Berriman Judge Serota was not laying down an inflexible rule that in the circumstances there mentioned there must always be medical evidence supporting a conclusion that a proposed adjustment had a real prospect of preventing the disadvantage identified, it is nevertheless necessary for the Employment Tribunal to explain, on the evidence which it has heard and the facts found, why and how far the proposed adjustment would prevent the disadvantage. On this aspect we accept Miss Fatima's submission that the Employment Tribunal, at paras. 50 and 51, has failed to answer the Romec question, which I there articulated at para. 39.

Constructive Dismissal

39. Miss Fatima raised, for the first time, a question as to whether the term of mutual trust and confidence, to be implied into every contract of employment, applied to the deemed employment relationship between a police officer and his Chief Constable now to be found in s64A(1). Because it was raised for the first time on appeal and bearing in mind the Kumchyk principle, Miss Fatima did not pursue the point. We are therefore not required to rule on it and heard no argument on the proposition. That said, we would find it a strange state of affairs. Either police officers are to be treated as employees for the purposes of DDA by virtue of s64A(1), with all the benefits and burdens of an employment contract including that universal implied term, or they are not. However we repeat, we are not required to adjudicate on the point and thus we proceed on the basis that the trust and confidence term applies to the question of constructive dismissal under s4(2)(d) read with s4(5)(b).
40. The Employment Tribunal's findings on this issue (para. 64) are challenged by Miss Fatima on the basis (a) that they have applied a subjective rather than objective analysis to the question whether the Respondent conducted himself in a manner which was calculated or likely to destroy the relationship of trust and confidence and (b) that the acts of discrimination found by the Employment Tribunal could not amount to repudiatory behaviour on the part of the Respondent.
41. As to the first point we endorse the common ground between Counsel that the test is objective: the Respondent's conduct cannot be viewed simply through the Claimant's eyes: see Baldwin v Brighton & Hove City Council [2007] IRLR 232, para 39. However, we are not persuaded that the Employment Tribunal here departed from that test at para. 64 of their reasons. Nor are we persuaded that the findings of disability related discrimination and failure to make reasonable adjustments, taken together, were incapable of founding a conclusion by the Employment Tribunal that the Respondent was in repudiatory breach of the implied term. That is not to say that, in cases of minimal discrimination, a finding of repudiatory breach must necessarily follow. We do not find anything said in Meikle or in Greenhof v Barnsley Metropolitan Borough Council [2006] IRLR 98 to the contrary. We are satisfied that the Employment Tribunal considered their findings overall and, as they say, on balance were satisfied that the constructive dismissal complaint was made out.

Disposal

42. It follows that, in our judgment, the Employment Tribunal fell into error in two respects:

(a) in explaining why it concluded that the Respondent had failed to justify the threat of half pay, and

(b) in clearly expressing its findings as to the prospects of the deferral of procedures adjustment preventing the substantial disadvantage to the Claimant which it identified.

43. Miss Fatima invites us to remit any issues on which she succeeds to a fresh Employment Tribunal for rehearing if we do not, as is the case, ourselves reverse the relevant findings below.
44. Having considered and applied the helpful principles set out by Burton P in Sinclair Roche v Heard & Temperley [2004] IRLR 763, para.46, we agree with Miss Smith that this was a balanced judgment by the Employment Tribunal, finding in favour of both parties on different issues. No question of lack of impartiality arises. It was also a careful decision; not one that can be described as 'totally flawed'. We do not remit the case to allow the original Tribunal a 'second bite of the cherry' but to reconsider and articulate its reasoning in relation to the two discrete issues which we have identified. Finally, remission to the same Employment Tribunal is plainly proportionate, the hearing below having occupied four days. We therefore direct that the matter return to Judge Toomer's Employment Tribunal, insofar as it is practicable to do so.
45. Whilst we have not upheld the Respondent's appeal against the finding of constructive dismissal based on the Employment Tribunal's finding of discrimination, if the Employment Tribunal on remission dismiss either or both of the threat of half pay and non-deferral of procedures claims, then it must necessarily revisit its conclusion that the Respondent was in repudiatory breach of the trust and confidence claim.
46. Case management of the remitted hearing rests with the Employment Judge. It will not be an opportunity for further evidence to be called. He will direct the parties as to the submission of written representations and/or an oral hearing.
47. To this extent only the appeal is allowed.