United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS A HICKINBOTTOM (of Counsel) Instructed by: Russell Jones & Walker Solicitors 1st Floor St James House 7 Charlotte Street Manchester M1 4DZ
For the Respondent	MR J BENNETT (Representative) Employment Law Firm Ltd 3 Eastwood Court Wiltshire Road Marlow Buckinghamshire SL7 1JG


 


SUMMARY

DISABILITY DISCRIMINATION

On a pre-hearing concession by the Respondent that the Claimant was disabled, it was not relevant to consider whether the Respondent knew the condition was likely to last 12 months, the only issue being whether the Respondent knew she was disabled, as to which the Employment Tribunal found that it was artificial to say one department did and another did not, this being a composite employer. Judgment reversed and remitted to the same Employment Tribunal for remedy.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the duty to make reasonable adjustments for a disabled employee. It is the judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed. We will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal chaired by Employment Judge Trayler sitting at Sheffield over three days registered with undated Reasons apparently around 26 November 2008. The Claimant is represented by Miss Hickinbottom of Counsel and the Respondent by Mr Bennett, a representative, and we will correct the Employment Tribunal record to show his attendance.
3. The Claimant a disabled person claimed that the Respondent had failed to carry into effect its duty to make a reasonable adjustment for her disability: essentially to move her to a different post. The Respondent contended by its response that she was not disabled but then made a concession to which we will return and raised issue including whether the Respondent had knowledge of the disability. The Employment Tribunal decided in favour of the Respondent. The Claimant appeals
4. Directions sending the case to a Preliminary Hearing were given by Wilkie J who observed that although the disability had been conceded, the issue was whether or not the Respondent ought reasonably to have known of the disability. At the Preliminary Hearing he ordered, Cox J and Members decided that the issue turned on the effect of the concession. In Cox J's note of the hearing which both parties had attended by order of Wilkie J, the Respondent conceded that a paragraph in the judgment to which we will refer is correct notwithstanding a skeleton argument suggesting the contrary. The issue was therefore as to the effect of the concession.

The legislation

5. The Employment Tribunal does not set out the legislation but correctly paraphrases it. A person is disabled pursuant to section 1 of the Disability Discrimination Act 1995 in the following circumstances:

"(1) Subject to the provisions of schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

(2) In this Act 'disabled person' means a person who has a disability."

6. By schedule 1 to the Act various aspects of disability are further enlarged upon and, in particular, long-term effects so that this occurs:

"2 (1) The effect of an impairment is a long-term effect if -

(a) it has lasted at least 12 months;

(b) the period for which it lasts is likely to be at least 12 months; or

(c) it is likely to last for the rest of the life of the person affected.

(2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur."

7. The duty to make reasonable adjustments for a disabled person arises under section 3A(2) as follows:

"... a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person."

8. However, by section 4A a defence is available in the following terms:

"(3) Noting 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 facts

9. The Respondent is a national betting organisation which runs a large number of High Street retail organisations and call centres. The Claimant began her employment with the Respondent on 14 May 1984 at a licensed betting shop. On 19 January 2007 she was assaulted. She never returned to work but continues to be employed. She suffered a number of conditions which caused her to seek to apply for a different location. The ultimate conclusion reached by Dr Appleford, consultant psychiatrist, a joint expert appointed for the purposes of the case, was that the Claimant had developed posttraumatic stress disorder as a consequence of the assault and that the first symptoms occurred shortly after the assault.
10. In March 2007, that is six or seven weeks after the assault, the Claimant was aware of a vacancy at Milton House, a call centre, and on 19 March the Respondent received the Claimant's application for the position of team leader. On 20 April 2007 she was rejected. That is the subject of the proceedings. The Claimant contends by that action the Respondent has breached its duty to make a reasonable adjustment for her as a disabled person.
11. The Employment Tribunal began with the following finding:

"The respondent concedes that the claimant was a disabled person as at March/April 2007. However the respondent disputes that it should or did know that the claimant was a disabled person and therefore the duty to make reasonable adjustments in her favour did not arise."

12. That concession is taken from a letter written on behalf of the Respondent by the Employment Law Firm Limited, on 23 May 2008 in which this is said.

"We have taken instructions from our client and having done so we confirm that the Respondent does now accept that the Claimant was disabled within the meaning of the Act. They accept this having read the most helpful and detailed report prepared by Dr Appleford."

13. Dr Appleford had given an opinion on 27 April 2008 following his examination of the Claimant on 3 April 2008: the Claimant was impaired and it had lasted for 12 months but was unlikely to last for the rest of her life. Essentially it was to do with symptoms of PTSD. That triggered the concession.
14. Separately, the Respondent had caused an inquiry to be made of a health management consultancy and had asked a question of it saying this, "Is the case covered by the DDA and if so what adjustments should be considered?" That is a standard question but the box is not ticked and thus did not require an answer from the medical practitioner. In the event, it did elicit an answer from Dr Rhodes on 6 November 2007 who commented upon the Claimant's then condition. Dr Rhodes had not examined the Claimant and she gave her opinion that the Disability Discrimination Act 1995 is unlikely to apply but it might change should the conditions continue in excess of a year. She made comments about the Claimant's then condition indicating that a further review would be required within three months ie in excess of 12 months from her assault on 19 January 2007.
15. The Employment Tribunal resolved a dispute in favour of the Claimant as to the state of the Respondent's knowledge. The Tribunal was asked to decide whether a Respondent could be fixed with knowledge if one part of its organisation knew but another did not of disability.
    The Tribunal despatched this swiftly saying this:

"We believe in this regard that it would be wholly artificial to limit the respondent's knowledge to that which has been disclosed or is accessible through one part of that organisation when another part of the organisation is or should be aware of it. Our finding is that all information disclosed to the respondent or accessible by it should be imputed to the respondent. It matters not in our view whether the knowledge has been imparted to managers in the retail or telephone betting operation or to the separate sections of the respondent's human resources function dealing with the retail or telephone betting sections. In this regard we take account of paragraph 5.12 of the Code of Practice and the general duty to make 'reasonable' adjustments. That duty means in our view that the employer has a duty to take steps to ensure its information channels are open to disabled employees and that no departmental barrier is imposed on those channels of communication. The respondent here, though a large employer, deals with the claimant on a regional basis, namely in Sheffield.

From the above we do not believe any evidence shows on the balance of probabilities that anyone at the respondent had knowledge or believed the claimant was a disabled person. We believe the above information was reasonably available to the respondent and therefore we impute that information to the respondent. In making this judgment we have no specific knowledge of the nature of PTSD or its likely duration, our only information comes from the evidence and the documents in the bundles."

16. Thus, the central issue of the knowledge of the Respondent was resolved in the Claimant's favour and there has been no appeal against it.
17. The Tribunal then went on to consider the information which was available to the Respondent at the time indicating that she was disabled. It came to the conclusion that on the basis of the medical material then available, the Claimant was not exhibiting a condition which was likely to last 12 months. Focussing on the period beginning on 19 March 2007 and ending on 20 April 2008 (strictly it begins on 20 April 2007 when the Claimant's application was rejected but no point is taken as to the difference March-April 2007) the Tribunal concluded that there was no material upon which it could be said that the Claimant was disabled.
18. The Tribunal turned to the report of Dr Appleford and correctly says this gives no opinion on the likelihood of the Claimant having a condition at the index date which was likely to last 12 months. It therefore turned to Dr Rhodes and on the basis of what she said came to this conclusion:

"From this we take therefore two factors. Firstly if an occupational health advisor is unwilling to commit to the likelihood of a 12 month duration of symptoms nine months in it cannot reasonably be the case that the respondent if it had taken cognisance of all reasonable information could have so concluded. Secondly, if an inquiry made to an advisor in November 2007 results in negative advice as to the existence of a 1995 Act defined disability it is also unlikely that another advisor could be more specific when the claimant had reported PTSD symptoms for a period of at most 13 weeks (19 January 2007 through to 20 April 2007).

For that reason therefore we find that it was not reasonable for the respondent to be aware that Mrs Bower was a disabled person and could not in law fail to make a reasonable adjustment. For that reason the claim fails."

19. It therefore dismissed the Claimant's claim but made clear that it would have found in favour of the Claimant that the Respondent had failed to carry out a reasonable adjustment.

The Claimant's case

20. The central proposition advanced by Miss Hickinbottom is that the Employment Tribunal had no need to go beyond the concession of the Respondent. This was a concession that the Claimant fell squarely within the definition of a disabled person which carries with it resolution in her favour of all of the ingredients which might be in dispute under section 1 of and schedule 1 to the Act.
21. There was no need for any further examination of the Claimant's condition, the sole issue being the knowledge of the Respondent for the purposes of section 3(3). Those issues being resolved in favour of the Claimant, the Tribunal wrongly engaged in an examination of the subsequent medical reports. Miss Hickinbottom accepts that the evidence found by the Employment Tribunal as exigible in April 2007 might not disclose an impairment likely to last one year but this was not necessary to determine because of the concession by the Respondent. No further questions had been asked of Dr Appleford once the Respondent had conceded the point and the sole issue in dispute was the nature of knowledge.

The Respondent's case

22. Mr Bennett, on behalf of the Respondent, says that the concession remains but it is of limited reach. Paragraph 1.2 correctly records the nature of the concession. Thus, what the Respondent conceded was that in the light of Dr Appleford's report, the Claimant was by May 2008 a disabled person but that does not shed light on whether she was so disabled a year earlier in April 2007.
23. Mr Bennett helpfully accepts that if it is relevant to look at Dr Rhodes' report made in November 2007, the projection forward from 9 months to 12 months would have been correctly made and that Dr Rhodes wrongly gave an opinion on the Disability Discrimination Act 1995 which is a matter for the Employment Tribunal to determine.

The legal principles and discussion

24. The essential principle to be applied in this case emerges from a judgment I gave in Secretary of State v Rance [2007] IRLR 665. Concessions made responsibly by a representative on behalf of a party at an Employment Tribunal will only in exceptional cases be allowed to be unwound. There is no application in this case for the concession to be unwound.
25. In our judgment the concession and its construction was the central point of the case. The Tribunal was alert to the words used by the Respondent in its letter. It correctly concluded what the concession was in the passage we have cited. The reason the Tribunal went further to look at the evidence was to resolve the issue between the parties as to knowledge of whether the Claimant was a disabled person.
26. Further examination of the Claimant's condition and its prognosis as at April 2007 was curtailed as a result of the concession. In disability and personal injury cases where a joint expert is appointed, questions may be directed to the joint expert by either party for elucidation. The obvious question in the light of Dr Appleford's opinion that the Claimant was disabled was what was the likelihood in April 2007, some three months after the assault, of the condition lasting a year? Dr Rhodes was never asked that question. We accept Miss Hickinbottom's submission that the reason for that was because of the concession. To ask whether or not the condition was likely to last 12 months is to fill a gap in what would otherwise be required for the Claimant to prove under section 1 and Schedule 1.
27. However, the Claimant was relieved of that problem by the concession. The words "as at March, April 2007" used by the Tribunal make clear that the status of the Claimant as at the date of the statutory tort was a disabled person and it was unnecessary to have any further discussion about whether any of the specific provisions of schedule 1 had been met such as substantial effect, day-to-day activities, how long it was likely to last, and so on. Only one aspect arose, the long term effect condition under para 2(1)(b) of Schedule 1. This could have defeated a finding of disability. But since disability was conceded, it was irrelevant to consider whether para 2(1)(b) was met. This is the only place where 12 months' impairment arises and it was not necessary to consider what any officer of the Respondent knew about the long term effect of the impairment. In those circumstances the Employment Tribunal's judgment was flawed for it failed to give effect to that concession. Thus, the case went on to decide whether or not the requirement of knowledge of the accepted disability for the purposes of section 3(3) had been met.
28. It is not necessary for us to consider any application by the Respondent to be released from its concession but if it were, we would apply Secretary of State v Rance. Further material would be required. It would not be difficult to ask Dr Appleford to describe what was the likely condition as at 2007 but there would also be further evidence required if his answer were disputed by either side. So, we would not have been inclined, had an application been made, to allow the point to be argued.
29. In our judgment the question the Tribunal should have asked was: since the Claimant was disabled, was the Respondent placed under a duty by its knowledge that she was disabled to make the adjustment she sought? As to which, since the findings against the Respondent have not been challenged here, there is only one answer. We will reverse the judgment of the Tribunal. We hold that she was disabled within the meaning of the Act and thus the remainder of the judgment that the Respondent failed to discharge its duty to make reasonable adjustments becomes effective.
30. The appeal is allowed. [Directions for conciliation].