United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S WHALE (of Counsel) Instructed by: Dartford Borough Council (Legal Services) Civic Centre Home Gardens Dartford Kent DA1 1DR .
For the Respondents	MRS G RICHARDSON (The Respondent in Person)


 


SUMMARY

DISABILITY DISCRIMINATION: Disability related discrimination

UNFAIR DISMISSAL: Procedural fairness/automatically unfair dismissal

JURISDICTIONAL POINTS: Claim in time and effective date of termination

PRACTICE AND PROCEDURE: Delay in ET judgment

The Claimant brought proceedings alleging unfair dismissal and disability discrimination. In the interval between the hearing and the production of the Judgment and Reasons – though apparently after the members had agreed on the outcome – the Employment Judge accepted a post abroad and became unavailable. After six months, the lay members produced a Judgment and Reasons with the assistance of another Employment Judge. The Judgment upheld the Claimant's claims.

Appeal allowed and claim remitted to Tribunal because:

(1) As regards disability–related discrimination, the Tribunal had explicitly not followed Malcolm, on the basis that it was not binding because it had been decided since the hearing.

(2) The Tribunal had found a breach of the claim for failure to make reasonable adjustments notwithstanding an assurance from the Judge that no such claim would be considered.

(3) The unfair dismissal claim had been decided on basis of a different termination date from that pleaded.

Observations on procedure to be followed in circumstances where a chairman becomes unable to complete the formal Judgment and Reasons.


 


THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1. This is an appeal against the decision of an Employment Tribunal sitting at Ashford upholding the Claimant's claims of unfair dismissal and disability discrimination against the Appellant, to which we will refer as "the Council". The Council has been represented before us, as before the Tribunal, by Mr Stephen Whale of counsel, and the Claimant has appeared in person, as she also did before the Tribunal. The case has a very sorry history to which we will have to return presently.
2. The relevant facts can be fairly briefly summarised.

(1) The Claimant commenced employment with the Council as a Human Resources manager in May 1999. Unfortunately she developed a degenerative condition of the spine, which it is common ground at all material times constituted a disability within the meaning of the Disability Discrimination Act 1995. The Council's occupational health staff had been involved with her case since 2004 and various adjustments were made in order to assist her, including latterly that she should work at home for two days per week.

(2) In May 2007 she was referred to an occupational health physician, Dr East, for an opinion, because her condition was deteriorating. It was clear that the termination of her employment, whether by ill-health, retirement or otherwise, was under consideration.

(3) Dr East saw the Claimant on 20 July 2007 and reported on 26 July. His report said this:

"Current Situation

She has had a period of long-term sickness absence, following a period of time when she attempted to carry out her normal duties. Despite considerable adjustments to her work station, changes in her work practice, and a trial of voice operated software; she has been unable to return to her normal duties, even for a very limited period. She remains under consultant review and there is no indication for surgical intervention at this time.

Specific Questions

Following my consultation I believe that she is certainly unfit to carry out her normal duties or any comparable duties now or for the foreseeable future. As her condition is a degenerative one the aim of treatment is to delay the rate of progression, but surgery may have to be considered in the longer term. Both Geraldine and her neurosurgeon are keen to avoid this if possible.

Future Plans

She will continue with manipulative treatment and exercise and will need to consider whether she will be able to undertake any other enterprise which does not involve the use of a PC or laptop, or of prolonged writing or note taking

Administrative Matters

I believe that she would be considered disabled under the terms of the Disability Discrimination Act and that she does meets the criteria for III Health Retirement. I attach the necessary certificate."

Although the report is dated 20 July it appears only to have reached the Council on 26 July.

(4) On 26 July Mr Brooks, the Head of Finance & Resources at the Council, following a meeting with the Claimant, sent her a letter which begins, so far as material:

"I have received confirmation of your ill health retirement from Dr East and his certificate is dated 20 July. In line with your contract terms and conditions I confirm that your last day of service was therefore 20 July 2007."

(5) The precise date that that letter was received by the Claimant is not known, but she had certainly received it by 31 July because on that date she sent an e-mail to the Council protesting that no proper procedures had been followed and stating that she regarded her employment as continuing. That e-mail is not in fact referred to in the Tribunal's Reasons and we have not seen it, but there was agreement before us that it was sent and as to its gist.

(6) The Council does not appear to have directly responded to that statement of the Claimant's position, but the Tribunal found that it appreciated that the letter of 26 July should not have been sent and that it in effect treated it as rescinded. The Claimant continued to be paid and, as appears below, attempts were made to follow a proper procedure regarding the proposed termination of her employment. The Tribunal found that the reason why the letter was sent so precipitately was that the Council was keen to outsource the human resources function.

(7) Various attempts followed to arrange meetings with the Claimant but that proved impossible. In the event a decision was made on 5 September 2007 to terminate her employment, and she was sent a letter of that date communicating a decision "to terminate your contract of employment on the grounds of capability due to ill-health". She was told that her last day of service with the Council would be 6 September. There was reference to the fact that she qualified for ill-health retirement and the letter contained details about how to obtain her entitlement to an ill-health retirement pension. We understand that that has indeed now been implemented.

(8) The Claimant appealed against that decision, but on 15 November 2007 the appeal was rejected, and she was so notified on the following day.

3. The present proceedings were issued on 5 September 2007. In section 4 of the ET1 the Claimant gave her date of dismissal as 6 September, i.e. the date of receipt of the second letter of dismissal. She claimed for unfair dismissal under section 5 of the form and for disability discrimination under section 6. In the narrative of both sections she said this:

"I was dismissed on the ground of ill health by letter on 20 July 2007. I pointed out that this was unfair and eventually was invited to a meeting on 6 September 2007, and was dismissed. The appeal was held on 16 November 2007 and upheld the dismissal. I believe this was discrimination under the Disability Discrimination Act and a breach of contract. This is for two reasons, that I was dismissed with undue haste, I had only been absent for just over two months when I received the dismissal letter, and importantly that I should have been offered part time working as a reasonable adjustment."

We should say, by way of clarification, that the reference to a meeting on 6 September is to a meeting to which the Claimant was invited but which she was unable to attend. It is common ground that she acknowledged that the decision would be taken in her absence. (It appears that the date was in fact 5 not 6 September but nothing turns on that.)

4. The Council duly lodged a response. We need not set out the details, but we should note that it explicitly accepted that the dates of the Claimant's employment pleaded in the ET1, i.e. including the date of termination, were correct. There was a case management discussion before Employment Judge Kurrein on 26 January 2008. Paragraphs 1.2 and 1.3 of the order made on that occasion read as follows:

"The Issues

1.2 There is no dispute that the Claimant was dismissed with an effective date of termination of 6 September 2007 for ill health capability associated with her disability. The principal issue that arises in the part of the claim alleging that her dismissal was an act of disability related discrimination, therefore, is whether or not that dismissal can de justified.

1.3 Following her dismissal, in a "Letter of Appeal" of 1 October 2007, the Claimant alleged a failure to consider part time working prior to her dismissal taking effect. Having heard the submissions of the parties, I concluded that that letter was a Step 1 letter pursuant to the statutory grievance procedure in Schedule 2 to the Employment Act 2002. The Claimant's claim alleges that the failure of the Respondent to consider offering her part time working instead of dismissing her was a failure to take steps to make reasonable adjustments and thus an act of disability discrimination."

5. A hearing was directed on liability only. That hearing came on before a Tribunal chaired by Employment Judge Amin on 21 and 22 April. We will have to revert to the question of what issues were raised. At the conclusion of the hearing the Tribunal reserved its decision. The parties were told that they would receive it "as soon as possible". The Tribunal met in chambers on 23 April, that is to say the following day. It appears - we will return to this below – that the members of the Tribunal reached a substantive decision on that occasion as to the outcome of the case. By 30 May no Judgment or Reasons had been received, and the Council's Head of Legal Services wrote to the Tribunal asking when they could be expected. Further correspondence ensued in which the Council was told that the Regional Employment Judge had pressed the Judge to produce a draft judgment, but no other explanation for the delay was forthcoming. It was only as a result of the involvement of Mr Whale in another case where similar problems had been encountered with a judgment expected from Judge Amin that the Council learnt that she had in fact been appointed to the War Crimes Tribunal in Kosovo and that that appeared to be the explanation, though hardly an excuse, for her failure to deal with the outstanding Judgment and Reasons.
6. In the meantime the law as to disability discrimination had been radically changed by the decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700, which was handed down on 25 June 2008. It evidently took the Council a little while to appreciate the potential significance of Malcolm for the Claimant's claim, though we do not say that by way of criticism. But on 22 September the Head of Legal Services wrote to the Regional Employment Judge drawing his attention to Malcolm and asking whether further submissions were required. His reply, dated 30 September, was as follows:

"Thank you for your letter of 22 September 2008 enclosing a copy of the authority of Lewisham LBC v Malcolm UKHL 43. I have asked the members to produce the judgment in this case with the assistance of another Employment Judge pursuant to the powers contained in Rule 31 of the Employment Tribunal Rules. This is in the light of the absence of the Employment Judge who heard the case."

7. The Council replied reserving its position as to whether the course which the Regional Employment Judge said was being taken was appropriate; but in any event the two lay members of the Tribunal met in chambers on 30 October and a Judgment and Reasons were eventually sent to the parties on 6 November – that is, some six and a half months after the original hearing. They bear the following rubric:

"It is hereby certified that Employment Judge Amin is unable to sign this Judgment and it is therefore signed by the Tribunal Members, pursuant to the provisions of Rule 31 of the Employment Tribunal Rules of Procedure 2004."

The Judgment is indeed signed only by the two lay members.

8. It is convenient at this stage to recite the provisions of rule 31, which are as follows:

"Absence of chairman

Where it is not possible for a judgment, order or reasons to be signed by the Chairman due to death, incapacity or absence-

(a) if the Chairman has dealt with the proceedings alone the document shall be signed by the Regional Chairman, Vice President or President when it is practicable for him to do so, and

(b) if the proceedings had been dealt with by a tribunal composed of two or three persons, the document shall be signed by the other person or persons;

and any person who signs the document shall certify that the Chairman is unable to sign."

9. The Judgment, as we have said, upheld the Claimant's claims of unfair dismissal and disability discrimination. The reasoning can be summarised as follows:

(1) The Tribunal found that the Claimant was dismissed with effect from the receipt of the Council's letter of 26 July 2007 (see para. 23 of the Reasons).

(2) On that basis, it found that the dismissal was unfair, essentially because no procedure of any kind had been followed at that point, either the statutory dismissal procedure or the Council's own internal procedures (see Reasons, para 34). Strictly, though this is not spelt out, the decision could only have been on the basis that the decision was, "automatically" unfair pursuant to section 98A (1) of the Employment Rights Act 1996. On the basis that the Claimant was dismissed by the letter of 26 July, the dismissal was also plainly potentially unfair by reference to section 98, but any finding of unfair dismissal on the basis of that section would have been subject to the application of section 98A (2), and the Tribunal said in terms at para. 45 of the Reasons that it would need to hear further submissions on what difference a fair procedure might have made to the outcome.

(3) As regards the claims of disability discrimination the Tribunal said this:

"46. The Tribunal concluded that the dismissal of the Claimant amounted to less favourable treatment of the Claimant for a reason related to her disability, namely her ill health absence. This case was decided when Clark v Novacold was the appropriate authority and the hypothetical comparator in this case would be somebody without the ill health absence of the Claimant. That person would not have been dismissed because of their ill health/incapability.

47. The Tribunal concluded that the Respondent was unable to justify the dismissal because it had not followed its own procedures in respect of managing absences. It had not met with the Claimant to discuss Dr East's report. Although the Respondent argued that it was its policy to dismiss employees where there was a certificate of permanent incapacity, the Tribunal concluded that this only occurred once a meeting had taken place and the absence had lasted for a number of months.

48. The Tribunal concluded therefore that the Respondent was unable to justify the decision to dismiss the Claimant in these circumstances as they were unable to show that the reason for the dismissal was substantial.

49. The Tribunal further concluded that the Respondent had failed to comply with the duty to make reasonable adjustments. The Tribunal were satisfied that a provision, criterion or practice was applied to the Claimant, namely that she should use the computer for work and take handwritten noted at interviews as part of her duties as Human Resources Manager. This requirement placed the Claimant at a substantial disadvantage, because of her disability, in comparison with non-disabled persons. The Respondent was clearly aware of the Claimant's disability at all material times. They had provided equipment to assist her in the past. However, upon receipt of Dr East's report, they did not take reasonable steps to discuss with the Claimant whether or not any further adjustments could be made. For example, they did not discuss with the Claimant whether or not the provision of a note taker would be useful, whether reducing her working hours or working part-time would be useful and the Tribunal were satisfied that these would constitute reasonable adjustments as set out in Section 18B.

50. The Tribunal is satisfied therefore that the Respondent had not taken such steps as were reasonable in all the circumstances in order to prevent the provision, criterion or practice having a disadvantageous effect on the Claimant."

10. We should also refer to paragraph 43 of the Reasons where the Tribunal referred to the recent decision in Malcolm but said this:

"It appears, therefore, that the Tribunal is bound in all subsequent cases by the House of Lords decision in Malcolm and not by the Court of Appeal decision in Clark v Novacold despite that test being referred to in the Code. However, Mrs Richardson's case was decided by the Tribunal before the decision in Malcolm was reached and therefore the Tribunal applied the Novacold test."

The reference to the Claimant's case being "decided" must be a reference to the discussion in chambers on 23 April.

11. We need not set out the relevant statutory provisions, which are well-known: nothing turns, for the purpose of this appeal, on the details of their wording. The Notice of Appeal contains seven grounds of appeal: we will deal with them in turn, though we will take ground 6 out of order.

1. APPLICATION OF CLARK v NOVACOLD

12. The House of Lords in Malcolm held that in a claim under section 22 of the 1995 Act the correct comparator was a non-disabled person whose circumstances were otherwise the same as the comparator's rather than a disabled person with those characteristics. It is now established, if it was ever in doubt, that that decision applies also to cases of disability discrimination in the employment field and thus overrules Clark v Novacold [1999] ICR 951, as indeed the Tribunal correctly recognised (see most recently Carter v London Underground Limited UKEAT/0292/08).
13. Mr Whale submits that it was in those circumstances wrong in principle for the Tribunal to apply Clark v Novacold. That is plainly correct. The suggestion that Malcolm was irrelevant because it post-dated the decision of the Tribunal is an elementary error, and indeed that would be so whether the decision in question was the "informal decision" reached by the members on 23 April or the subsequent formal decision. The fact that the Tribunal should fall into such an elementary error suggests that the "assistance" which the lay members received from the Employment Judge referred to in the Regional Employment Judge's letter of 30 September 2008 was of a very limited character. We return to this aspect in due course. (There is a separate question whether it could in any event have been open to the lay members by themselves to have decided a point which, inevitably, had not been considered at the meeting on 23 April. But we need not consider that here.)
14. The appeal on the finding of so-called disability-related discrimination, i.e. discrimination within the meaning of s. 3A (1), must therefore be allowed. We have considered whether we should go further and dismiss the claim in this respect altogether. There is clearly a strong argument that if the Malcolm test were applied the Claimant's claim must fail because the Council would be able to show that it would have treated her in the same way even if she had not been disabled; but the Claimant disputed that, and we do not feel able to decide the issue definitively for ourselves. Accordingly, the claim under s 3A (1) must be remitted.

2. DATE OF DISMISSAL

15. The Tribunal decided the issue of unfair dismissal on the basis that the Claimant had been dismissed by the Council's letter of 26 July (see above). Mr Whale submitted that that conclusion was simply not open to the Tribunal in view of the pleaded basis of the claim, as we have already set out, confirmed at the case management discussion (see para 1.2 of the Case Management Order) - and not, as indeed the Claimant confirmed to us, in any way questioned at the hearing – i.e., as we have said, that the effective date of termination was 6 September 2007. That submission is plainly right. The Tribunal was not entitled to go behind the pleaded date of dismissal in the light of that history. The appeal on unfair dismissal must, therefore, be allowed and the case remitted to the Tribunal for consideration on the basis of the correct effective date of termination, namely 6 September.
16. There was some discussion before us whether at the remitted hearing it would be open to the Claimant, if she chose, to contend for the earlier effective date of termination, that is to say late July. We prefer to express no view on that question, save to say that if she were to seek to do so it would be necessary for her to make an application for permission to amend her ET1 and for the Case Management Order defining the issues to be revoked. Mr Whale made it clear that any such application would be resisted by the Council.

3. LIMITATION

17. It was Mr Whale's submission that if the effective date of termination was indeed the end of July the Claimant's complaint, presented as it was on 5 December, was on the face of it out of time and that the Tribunal had given no consideration as to whether time should be extended. We are not sure that that submission is wholly correct having regard to the effect of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004; but we need not reach any concluded view about that since the point is academic in view of our conclusion on the previous ground.

6. REASONABLE ADJUSTMENT

18. As noted above, the ET1 clearly contained a claim of breach of the duty to make reasonable adjustments contrary to s. 3A (2) of the 1995 Act, which of course must be read with ss. 4A and 18B of the Act, on the basis of failure to offer her the opportunity to work part-time. No doubt the claim was only very summarily indicated but it was nevertheless clearly made.
19. Mr Whale submitted that, however that might be, that basis of complaint had been abandoned at the case management discussion and he relied on the definition of the "principal issue" in paragraph 1.2 of the Case Management Order, which we have set out above. We accept that there is some ambiguity there, but we note also the reference to the reasonable adjustments claim at paragraph 1.3, albeit in a rather different context, and we cannot be satisfied that the Claimant should indeed be taken to have abandoned that aspect of her claim. However, it is clear that the Council remained in some doubt at the start of the hearing about whether it was facing a claim under s. 3A (2). Mr Whale referred us to his and his instructing solicitor's notes of the hearing, which show that he raised this question at the very beginning of the hearing and that it was agreed by the Judge that no claim under s. 3A (2) was in issue and that that was confirmed by her in the course of his closing submissions. The Claimant has confirmed to us that those exchanges did indeed take place, but she says that it was never brought home to her that their effect was to preclude her from making a claim on the basis of failure to make reasonable adjustments, and that if it had been she would certainly not have accepted that. We can easily accept that the impact of those exchanges went over her head, though, if that is so, it is a criticism of the Judge, who should have taken pains to see that any technical discussion between the Tribunal and counsel was fully understood by the Claimant. Nevertheless, it is clear that the Council were given the clear impression by the Tribunal that it did not regard any such claim as being in issue and that its evidence and submissions proceeded on that basis. In those circumstances it is self-evidently unfair that the Tribunal should, in the result, have entertained such a claim and decided it against the Council.
20. We should also note, though we need not develop the point here, (a) that the reasonable adjustments to which the Tribunal referred at paragraph 49 went beyond working part-time, which was the only pleaded adjustment; (b) that the Tribunal's language seems to suggest that it fell into the "Mid-Staffordshire error" (see Tarbuck v Sainsbury Supermarkets Ltd [2006] IRLR 664 and HM Prison Service v Johnson [2007] IRLR 162); and (c) that even if the claim was properly before the Tribunal the reasoning in the last sentence of paragraph 49 is wholly inadequate. We must, therefore, allow the appeal on this basis also. We remit the issue of any claim under section 3A(2) to the Tribunal.
21. If the Council wishes to argue, though we do not encourage this, that a decision to exclude a claim under section 3A(2) was made at the case management discussion, it will have to raise that to the Tribunal by application. On the face of it, the terms of the ET1 are clear and, as we have said, it does not seem to us clear on the material before us that that claim was ever abandoned. Contrariwise, if the Claimant wishes to rely on any other adjustments than part-time working the burden will be on her to seek leave to amend her ET1 in order to specify clearly what other adjustments she says should have been made.

4. DELAY / PERVERSITY

22. The delay in producing the decision in this case was of course deplorable, but Mr Whale accepts, on the basis of the decision in Connex South Eastern Limited v Bangs [2005] ICR 763, that that by itself would not constitute a ground of appeal: it is necessary that he should show that the delay has led to substantive errors in the Tribunal's findings or reasoning. He sets out at paragraph 26 of the Notice of Appeal eight particular respects in which he contends that the Tribunal's decision was "perverse", though we are not sure that each of the eight points is in truth to be characterised as perversity, in the strict sense, as a result of the delay. Many of the points made in fact overlap with the other substantive grounds of appeal which we have considered, but there are four individual findings of fact - numbers III to VI - which are said to be incompatible with the evidence given to the Tribunal and which we have not separately addressed. We do not, however, find it necessary for us to do so. We have already ordered remission on all the Claimant's claims. The findings in question will be open for reconsideration by the Tribunal at the fresh hearing. None of them is of such a character that if we were to hold that they were perverse or otherwise unsupported by the evidence they would be dispositive of any of the Claimant's claims.

5. ASSISTANCE BY ANOTHER EMPLOYMENT JUDGE

23. Mr Whale submits that it was wrong in principle for a different Employment Judge to be drafted in to assist the lay members, as it appears from the Regional Employment Judge's letter of 30 September 2008 occurred. Although the Regional Employment Judge refers to rule 31, that gives no such power and is concerned only with the question of signature. Mr Whale is clearly right that rule 31 gives no support to the course taken in this case, but it does not follow that that course was wrong in law. The only indication that we have as to exactly what happened is given in a letter sent to this Tribunal by the Ashford Tribunal following the institution of this appeal. This is in the following terms:

"The file has been referred to Employment Judge Wallis, who has directed that I write as follows: -

The Employment Judge thought might be helpful, in view of the grounds of appeal at paragraphs 12 & 14, to explain that the Tribunal had made the decision on 23 April 2008. The meeting in Chambers on 30 October 2008 was to assist the Members in putting that decision into the Reserved Judgment format which was then sent to the parties (see the Order of the Regional Employment Judge dated 1 October 2008)."

We infer from the fact that the observations recorded are those of Employment Judge Wallis that it was in fact she who was the judge asked to assist the lay members.

24. It is not strictly speaking necessary that we deal with this point in view of our conclusion on the substantive points, but since it is conceivable that similar situations will occur in the future (though we hope not for the particular reason in this case) it may be helpful if we express our views, though they should not be treated as wholly definitive since we have not had the benefit of adversarial argument.
25. In circumstances where (a) a three-person tribunal has substantively reached a decision on all issues in a particular case but (b) the Judge has become unavailable, typically through serious illness or death, before the Judgment and Reasons have been perfected, we can see nothing wrong in principle in a different Employment Judge being asked to assist the lay members with the formalities of producing a Judgment and Reasons in order to give effect to the decision already reached by all three members of the Tribunal. Section 4(1) of the Employment Tribunals Act 1996 prescribes that proceedings shall be "heard by a three-person tribunal", and that must mean that all three members must participate at all substantive stages; but rule 31 envisages circumstances where the final formal decision can be produced without the participation of the Chairman. We see no reason to suppose that that rule is ultra vires, and in our view it reflects a commonsense distinction between the substance of the decision and its encapsulation in a formal Judgment and Reasons. It goes without saying that the role of the assisting Judge in such circumstances would be strictly limited: both the lay members and the Judge would have to appreciate that he or she could play no part in any substantive decision.
26. It is unfortunate that the Reasons as issued in this case contain no explanation or reassurance as to the role of the assisting Judge, of which indeed the parties only learnt from the letter of the Regional Employment Judge. In another case it would be good practice for the role of the assisting Judge to be referred to and the necessary confirmation given as to the limited nature of his or her assistance. But it seems to us adequately clear from Judge Wallis's comments, and indeed from the internal evidence of the Reasons, that the limited nature of the assisting judge was respected in this case. It would frankly be remarkable if some of the errors which the Tribunal made would have been permitted to have been made if the Employment Judge had attempted to intervene in the substantive decision taking.

7. PERVERSITY

27. This is merely a sweep-up ground and adds nothing to the points which we have already reviewed.

CONCLUSION

28. This appeal must be allowed, for the reasons given, and all aspects of the Claimant's claim must be remitted to a fresh Employment Tribunal for consideration at a hearing. In practice it will almost certainly be necessary for there to be a case management discussion before the substantive hearing.
29. We do not think that it would be right for us to express any definitive views about either the conduct of Judge Amin or the very limited nature of the information which the Regional Employment Judge thought right to give the parties in the very awkward situation which had arisen. We do not have the information on which to reach any fair conclusions, and it may be that complaints will be pursued in another forum. But we do not think it would be right for us to leave this appeal without expressing considerable disquiet about what has happened in this case and saying how much we regret the fact that both parties have been let down by difficulties which, at least in part, go beyond the ordinary risk -that even the most conscientious tribunal may sometimes make errors of law.