United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS I OMAMBALA (of Counsel) Instructed by: Messrs Gamlins Solicitors 31/37 Russell Road Rhyl Denbighshire LL18 3DB
For the Respondent	MR S GORTON (of Counsel) Instructed by: Messrs Quinn Melville Solicitors Vincent House 15/17 Stanley Street Liverpool L1 6AA


 


SUMMARY

Disability Discrimination – Reasonable adjustments

The Employment Tribunal did not fail to consider the Claimant's suggested adjustments to accommodate his disability. Whether or not the employer knew of the disability, as a matter of fact it did all it could be required to do.

HIS HONOUR JUDGE McMULLEN QC

1. This case is about disability discrimination taking the form of what is said to be a failure by an employer to make reasonable adjustments for its disabled employee. The judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondent. We have made adjustments for the Claimant today.

Introduction

2. It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal chaired by Employment Judge Thompson sitting over seven days at Shrewsbury, registered with Reasons on 30 April 2007. The case began as a Preliminary Hearing after a review which was conducted by the Employment Judge and two Members. Sadly, one of the Members, Ms McCowan, became ill and has since died and so the case was completed by the Judge and Mr Macdonald, by consent. The Claimant represented himself and in the EAT has had the advantage in two hearings to be represented by Ms Ijeoma Omambala of Counsel; the Respondent has been represented throughout by Mr Simon Gorton, although this is his first appearance at the EAT in this case.
3. The Claimant made a very substantial number of claims but only one is now relevant on appeal following an agreed and sensible acceptance of an invitation we made as to the shape of today's hearing. The Respondent contended it did not know that the Claimant had a disability and was under no obligation to make adjustments, but as a matter of fact it did and so discharged any obligation which might be imposed upon it.
4. The Tribunal dismissed all the Claimant's claims. He appeals. The appeal was considered by HHJ Burke QC who found it had no reasonable prospect. The Claimant put in a fresh equally substantial Notice of Appeal and that was considered at a Rule 3 Hearing attended by Ms Omambala before HHJ Birtles who considered that four points should be developed at a Full Hearing. The vehicle for those four points is a now much-reduced third Notice of Appeal drafted by Counsel. By agreement we are to consider only one:

"8.3 The employment tribunal failed to consider the list of adjustments identified by the Appellant during the course of the full merits hearing as being reasonable adjustments in his case."

The legislation

5. The relevant provisions of the legislation are not in dispute. Section 4A of the Disability Discrimination Act 1995 provides as follows.

"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)."

6. Examples of steps which might be taken are given in section 18B(2). The reverse burden of proof is dealt with in section 17A(1C). In short, there is a two-stage process for conducting a hearing and as we will be seeking in this case, the Claimant did not pass stage 1, so the burden of proof did not move to the Respondent
7. The Employment Tribunal directed itself by reference to all of the relevant provisions and what we hold to be the leading authorities which it cited in its Reasons. It is important to note that both in its directions on the law and in its findings of fact, a very large amount of material was covered in order to deal with the then extensive claims made by the Claimant. Its approach has been comprehensive to, in sequence, the issues, the findings, the directions on law and the application of the law to its findings in its conclusions.

The facts

8. The Respondent is a firm of solicitors in Liverpool. The Claimant was employed by it as a welfare rights adviser in 1992 until his resignation by letter dated 3 February 2005. He is disabled within the meaning of the Act. He was diagnosed as having a mixed personality disorder with anxious avoidant dependent and other personality traits. During the course of his career at the Respondent he made a number of complaints about his working environment, and his employers conducted a number of meetings.
9. An issue arose as to whether, at the relevant time, the Respondent knew that the Claimant was disabled and the Tribunal held it did not. This is an issue which would arise if the Claimant were to succeed on any of the points raised in the appeal. One of the partners who was acting for the Claimant in a personal injury case not related to employment did know, at least in 2002. That might engage the reasoning in Hartman v South Essex Mental Health and Community Care NHS Trust [2005] ICR 782 (CA). As we say, that issue will not arise if the single point advanced initially by Ms Omambala today fails.
10. The Tribunal made the following findings.

"5.3 The Tribunal considers that the medical reports are key to an analysis of this case. Coupling the medical experts' opinions together with the facts as found, as recited above, it is quite clear to the Tribunal that the claimant did indeed work very hard and long hours, but that was not because the respondent insisted that he should work harder than he could or work longer than he could. It is quite clear that the claimant is a very lonely man who even came into work during his days off, for companionship. He worked during his lunch breaks, and came in very early in the morning, simply because he felt he had to for the reasons set out in the medical reports and as explained in the facts we have found. The respondent, via a number of its partners, expressed concern to the claimant. They agreed adjustments to his working pattern. They were sympathetic. His appraisals record that he achieved his targets, and more, and actually indicated that he could do more than the respondent was requiring of him.

5.4 The Tribunal do not accept that the stress and anxiety was brought about by pressure of work. The Tribunal do not accept that the partnership refused to listen, or were not sympathetic.

5.11 The respondent did provide a safe system of work and safe environment in which to work. They had regular appraisals and innumerable meetings with the claimant and discussed his position between themselves on a number of occasions.

5.16 The claimant's claim, as the respondent asserted, comes nowhere near crossing the Sutherland v Hatton threshold. The kind of harm to which the claimant alleged he had suffered was not reasonably foreseeable. We do not consider that the claimant suffered an injury to health which was attributable to stress at work. Demands were not being made of the claimant which were unreasonable when compared with the demands made of others in comparable jobs. All of the respondent's employees were subject to the target regime. There were no signs from the claimant of impending harm to his health. There was no indication that he suffered from illness attributable to stress at work. The Tribunal do not accept that there were plain indications for any reasonable employer to realise that there was an impending harm to health as far as the claimant was concerned. It is true that the claimant was a different and somewhat unusual person in comparison with his fellows. However, the respondent reasonably put that down, in the Tribunal's view, to his general personality and the stresses and problems that he had in his personal life. The respondent tried to address those as constructively as possible in all the circumstances.

5.17 The claimant's claim for constructive unfair dismissal is dismissed. The respondents were not guilty of any breach of contract, let alone a fundamental breach enabling the claimant to justify his resignation for that reason. He was not dismissed within the definition contained within section 95(1)(c) of the Employment Rights Act 1996, and if we are wrong about that, his dismissal was not unfair. Further, in respect of all matters, other than the alleged overwork, we consider that the claimant delayed too long in resigning and had affirmed his contract in respect of all other matters, and they were not revived by the allegations in respect of the meeting on 11 January 2005.

5.2 Frankly, the Tribunal is of the view that the claimant does not get beyond the first stage. He has not proved to us that any of the matters about which he complains amount to matters which we could conclude in the absence of an adequate explanation that the respondent has committed or is to be treated as having committed the unlawful acts alleged. Even if we are wrong about that, and we have to progress to the second stage, there is absolutely nothing in our view to indicate anything other that the respondent has been sensitive to the claimant and his predicament and done their very best to treat him well and accommodate his requests from time to time and assist him in carrying out his duties with them. There is absolutely no hint of any discrimination which the respondent needs to justify."

On the basis of those findings all of the claims under the Disability Discrimination Act 1995 and the claim of constructive unfair dismissal were dismissed. The Tribunal had already exercised its discretion in favour of the Claimant to allow a large number of the claims, which were argued to have been out of time, to be made by him and there was no appeal by the Respondent against that finding. Thus it was that almost all of what the Claimant wanted to put before the Tribunal was so put.

The Claimant's case

11. The Claimant submitted that the Employment Tribunal had erred in law in that it had failed to consider what he described as the list of adjustments which in the industry standard language are known as reasonable adjustments. They are steps to be taken by an employer in order that it can discharge its duty not to place at a disadvantage one of its employees by reason of the employee's disability. The way in which the Notice of Appeal is drafted requires attention to what the Tribunal is said to have failed to do: that is to consider the list of adjustments identified by the Appellant. According to Mr Stages, who has given specific instructions to Ms Omambala on this point, he advanced a document which is called Adjustments and by an analytic approach to that document Ms Omambala cites 4 of the 14 adjustments said not so made.
12. The dispute concerns the document which appears under the heading of Discrimination and which is known as AC2. This covers much of the same territory but not the entire document headed Adjustments. Mr Gorton cannot now recall seeing the first document and he made written submissions in relation to document AC2. It is not possible for us to resolve this issue but we will assume it in favour of the Claimant in that this document appears to at least have been before the Employment Tribunal and there is not in substance a major difference between the two.
13. For the purpose of the argument which he addresses, the Claimant contends that he put before the Tribunal four points requiring action by the Respondent on the footing that it knew of the disability and none of them was taken up. These are: the Respondent ought to have obtained a medical opinion, the Claimant's targets should have been reduced, he should have been considered for alternative work and he should not have had in his workload adult clients of a certain type. He sought to advance orally himself today a further ground but realistically Ms Omambala takes the matter no further with detailed argument and we say no more about it.

The Respondent's case

14. On behalf of the Respondent, it is contended that the Tribunal was correct in all its findings but dealing clinically with the sole point which the parties have agreed to advance today, at least by way of initial argument, the Respondent did in fact carry out the adjustments set out by the Claimant, or was excused from so doing because the matters arose after the date of the Claimant leaving work on 2 November 2005 by way of sickness and then by resignation.
15. The Employment Tribunal judgment, far from being haphazard as criticised by Ms Omambala, is comprehensive and there is no obligation on an Employment Tribunal in its conclusion to recite all the facts once it has made those findings in the first part of its judgment.
16. Responding to the four points made by Ms Omambala, it is contended that the Claimant was offered examination by a psychologist at the Respondent's instance and payment and this appears to have been at a time when the Claimant has indicated stress, but the Claimant himself declined that invitation (see paragraphs 3.42 and 3.46 of the Reasons).
17. The Tribunal considered in detail the workload of the Claimant (see paragraphs 3.8 to 3.18 of its findings) including the work which could be done. As to alternative work, it is contended that the Tribunal did make findings as to the type and quantum of the work done by the Claimant and that satisfies the contention that there should have been actual alternative work offered. There was nothing in the type and the quantum of the work which called out for alternatives to be made.
18. As to the clients issue, the Employment Tribunal did not deal with this, nor was there evidence before it. The Claimant does not shrink from making complaints and yet there is not one on this subject during the history of this case. In short, the Respondent did all it needed to do.

Discussion and conclusions

19. We prefer the arguments of the Respondent and accept in full the analytic approach of Mr Gorton in his written Skeleton. First the document known as AC2. Deciding, for this purpose only, in favour of the Claimant that both documents which we have cited were before the Employment Tribunal, we agree that all of the matters there set out were dealt with for the reasons which Mr Gorton has given.
20. It is instructive to look at what was in play at the Employment Tribunal. Mr Gorton has recorded the 14 allegations made by the Claimant as to what should be done, and we accept his analysis by reference to the specific paragraphs in the judgment that all of these matters were dealt with and were decided in favour of the Respondent on the reasonable adjustments point.
21. We have already indicated the Tribunal's approach to medical opinion. We accept the submission that, since the Respondent did not know of the medical diagnosis but did know of some stress matters, it discharged any duty by suggesting a psychologist to examine the Claimant. If the adjustments were made as the Tribunal has found, there may have been a number of other things that were considered but it cannot be said to be a breach of the statute for the Respondent not to refer to a medical expert given there had been agreement, as found by the Employment Tribunal, on the measures to be taken, for example, in connection with the working week.
22. The same goes for the Claimant's targets. Alternative work would seem to meet the same fate, for given that the Claimant accepted the alterations that were done, it would not be necessary for alternative work to be considered.
23. Finally, as to the reference to certain adult clients, the Claimant accepts that from the time this matter was raised in September until his leaving on sickness in November 2005, no such clients had been referred. In the absence of clear notes of evidence or agreed documentation we will accept from Mr Gorton that a contention by the Claimant that particular clients should not be referred was not in play at the Employment Tribunal.
24. Indeed, it would only be if the Respondent were seised of the knowledge of the Claimant's own background that this point would arise. As we discussed in debate, there may be more than one way of dealing with the background. A person with the Claimant's background might be valuable to the firm in dealing with such clients. On the other hand, he might not, but it cannot be said if material such as this were adduced before the Tribunal that only one answer is forthcoming viz the Respondent has failed to make a reasonable adjustment.
25. We accept the submission that the Tribunal in particular in paragraph 5.16, is making not simply an overall assessment but is turning its mind to the substantial quantity of material which it had previously examined. In our judgment, no fault can be found in the Tribunal's approach. Indeed, once it addressed the correct approach to the burden of proof as we hold it did, paragraph 5.28 was a conclusion which it could reach: that is that the Claimant had not passed stage 1, and let alone reached stage 2, requiring the Respondent to provide explanations.
26. In accordance with the agreed approach this morning, this case could go further only if we were to have found in favour of the Claimant on paragraph 8.3 of his new Notice of Appeal. We have been able to dispose of this case in accordance with the overriding objective within the time allowed for it. We would very much like to thank both Counsel for their help. In those circumstances we dismiss the whole appeal.