United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS NICOLA BRAGANZA (of counsel) Instructed by Messrs Clarkson Wright & Jakes LLP Solicitors Valliant House, 12 Knoll Rise, Orpington Kent BR6 OPG
For the Respondent	MS HEATHER PLATT (of Counsel ) Instructed by Messrs Alomo Solicitors 109 Victoria Road, Romford Essex RM1 2LX


 


SUMMARY

DISABILITY DISCRIMINATION: Disability related discrimination

The Claimant who is a disabled man claimed that his former employer discriminated against him on grounds of disability and the claim succeeded in front of the Employment Tribunal. So in identifying the appropriate comparator, it applied the test in Clark v Novacold [1999] ICR 951 which was not followed in the later decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] 1 AC 1399, which was not an employment discrimination case. It was agreed by counsel that following the decisions of the Employment Appeal Tribunal in Child Support Agency v Truman [2009] IRLR 277 and in Stockton on Tees Borough Council v Aylott [2009] UKEAT0401/08/1103 that the case of Malcolm applied to employment discrimination cases and that this case had to be remitted to a different Employment Tribunal because the Employment Tribunal had selected the appropriate comparator on the wrong basis.


 


THE HONOURABLE MR JUSTICE SILBER

I Introduction

1. The issue raised on this appeal is whether in the light of the fact that Mr John Jacomb ("the Claimant") was at all material times "disabled" within the meaning of the Disability Discrimination Act 1995 ("the DDA") his former employers, Hose Thurrock Ltd, ("the Respondent") discriminated against him for a reason relating to his disability. There are also consequential issues as to whether the Respondent (a) failed to make reasonable adjustments for the Claimant; (b) has victimised the Claimant; and (c) constructively dismissed him.
2. The Employment Tribunal in a decision dated 16 June 2008 resolved each of these issues in the affirmative and against the submissions of the Respondent. It concluded that the Respondent discriminated against the Claimant on grounds of his disability. The Respondent now appeals and it contends that the Employment Tribunal erred in respect of its decisions on each of these issues. It is agreed by counsel correctly in our view that this appeal will be allowed and that this case will be remitted to a different Employment Tribunal. We will describe the parties by their roles in front of the Employment Tribunal.

II The Background to the Claim

3. On 1 September 1967 the Claimant started employment as a Mobile Service and Sales Technician ("MSST") for the Respondent, who operated a franchise providing on-site hydraulic hose repairs mainly to plants on construction sites and refuse collection vehicles.
4. The nature of the work involved heavy lifting, moving hoses and coils, lifting up to 20 cans of oil, reefing on a wrench, accessing awkward and sometimes dangerous sites, driving for long hours and working a normal working week of 55.5 hours. Additionally he was required to work every other Saturday morning as well as being on call for 24 hours for one week in four. In 2003, the Claimant was promoted to the post of Chief Engineer and by the time when the Claimant's employment ended, he was the most experienced engineer employed by the Respondent and he had administrative functions.
5. The Respondent was a small entity which had four MSSTs (of whom the Claimant was one), a sales manager, a depot manager (who was the Claimant's line manager), a depot assistant together with the Respondent's Managing Director (Mr Brent Maitland) and his wife, who was a part-time bookkeeper.
6. Between 2005 and May 2006, the Claimant underwent extensive tests before he was diagnosed in May 2006 with carcinoma of the rectum. He was expected to undergo surgery in 2006 and then to require a recovery period of three months. During this period, the Respondent accommodated the Claimant with the Claimant ceasing to work on 9 October 2006 and in consequence the Respondent was left with three MSST's covering the work of four.
7. On 12 October 2006, the Claimant underwent surgery with six inches of bowel being removed and an external bag being fitted. He was to undergo an operation to close the loop ileostomy three to six months later.
8. A post-operative report on the Claimant of 20 November 2006 noted that he was "very keen to resume work... reversal of the ileostomy in three months time mid way through the chemotherapy… and then to continue with the chemotherapy afterwards".
9. The Claimant's medical team was keen for the Claimant to return to work. During a lunch on 24 November 2006, at which the Claimant and Mr Maitland met and Mr Maitland gave the Claimant a letter, they discussed among other things the Claimant obtaining a medical report. At this time the Claimant was not fit to return to work and he did not feel fit to return until the end of January 2007 but then only on light duties.
10. The Respondent sought further information about the Claimant's medical condition, and by a letter sent at the end of 2006 the Claimant's GP stated that "I don't know when he may be able to return to work, but he may be able to do so in the near future".
11. At a meeting on 4 February 2007 with Mr Maitland the Claimant asked for certain adjustments. Subsequently by a letter of 17 February 2007 to the Respondent, the Claimant referred to the meeting and sought a response to his request to return to work on light duties. Mr Maitland replied on 17 February 2007 that there were no light duty roles but that he was keeping the Claimant's post open.
12. At the end of February or early March 2007 the Claimant underwent the closure surgery and he was fit to return to work on light duties two or three weeks later. By a letter sent to the Respondent of 8 April 2007 the Claimant asked to work in the depot full-time but working more as a sales representative with the heavier lifting part of his job being carried out by somebody else. On 17 April 2007, Mr Maitland replied stating that he needed a medical report first. That was provided by a letter of 23 April 2007 when the Claimant's GP stated "hopefully in the near future he will be able to return to his duties at work".
13. By a letter dated 10 May 2007 Mr Maitland confirmed that he was keeping the Claimant's post of MSST open. The Claimant then raised a grievance by a letter of 14 May 2007. A meeting was held on 25 May 2007 following which the grievance was dismissed. Mr Maitland offered the Claimant a temporary role on light duties at a substantially reduced rate of pay. Following further correspondence regarding the new job, the Respondent resigned by a letter of 21 June 2007. The Tribunal held that the Claimant was constructively dismissed.

III The Grounds of Appeal

14. The Respondent contends that the Employment Tribunal:

(a) relied on the wrong comparator in the light of the decision of London Borough of Lewisham v Malcolm [2008] 1 AC 1399 ("the comparator issue");

(b) erred in failing to recognise that the duty to make adjustments did not arise until the Claimant was able to identify when he would be fit to return to work;

(c) should not have found that in the circumstances of the case a reasonable adjustment would have been to create a new office based temporary post; and

(d) failed to apply section 18B of the DDA and various parts of the Disability Rights Commission's Code of Practice when considering the reasonableness of the adjustments which the Respondent was required to take.

IV The Comparator Issue

15. At the time when the Employment Appeal Tribunal gave its decision, the leading authority on how to select the correct comparator for disability-related discrimination cases in the employment field was Clark v Novacold [1999] ICR 951 in which the Court of Appeal had considered the case of a disabled person who was dismissed because he was unable to do his job. The reason for that inability was his disability. The Court of Appeal considered the characteristics of the comparator for the purpose of determining whether there has been discrimination for a reason related to disability within the meaning of what is now section 3A(1).
16. The Court of Appeal in that case held that the comparison to be made in deciding whether a disabled person had been discriminated against for a reason relating to his disability was "with others" to whom the reason for the treatment complained of (namely the inability to perform the functions of the job) did not apply.
17. The Employment Tribunal and the parties at that hearing worked on the assumption that this case reflected the true legal position. The Employment Tribunal's decision was reached on that basis. There can be no criticism of that approach or the failure to anticipate that Malcolm, which was a case on disability discrimination against tenants awaiting judgment in the House of Lords, would change the law on disability discrimination in tenancy cases.
18. Shortly after the Employment Tribunal gave its decision in the present case, the House of Lords in Malcolm had to consider the correct approach in deciding whether a council had discriminated against Mr Malcolm, who was a schizophrenic and disabled within the meaning of section 24(1)(a) of the DDA; that is a provision that deals with discrimination in tenancy matters and in a different part of the Act from the employment provisions with which this appeal is concerned.
19. The provision which was relied on in Malcolm is however drafted in the same terms to what is now section 3A(1)(a) of the DDA and which was the statutory provision considered in Novacold. The issue which had to be resolved in Malcolm was whether his treatment as a schizophrenic who had sublet his flat contrary to the terms of his lease should be compared to that of a non-disabled person who had also sublet his flat or that of a person who had not sublet his flat.
20. The majority of the House of Lords with Baroness Hale of Richmond dissenting concluded that the correct comparator for the purposes of the relevant provisions of the DDA was a secure tenant of the council without a mental disability who had sublet his property and who had gone to live elsewhere. The Novacold approach to identifying the correct comparator was not followed. Indeed if it had been followed in Malcolm, it would have meant that the appropriate comparator would have been a secure tenant who had not sublet his property or who had gone to live elsewhere (per Lord Bingham at 1407 [13]-[15]).
21. It was common ground between counsel that although Malcolm was concerned with a landlord and tenant case, it was applicable to employment cases. There is substantial judicial support for this view because in the case of R (on the application of N) v London Borough of Barking & Dagenham Independent Appeal Panel [2009] EWCA Civ 108, the Court of Appeal held that Malcolm had overruled Novacold.
22. Although the case in N was dealing with expulsion from a school, the reasoning of the Court of Appeal and in particular that of Toulson LJ (with whom Rix and Rimer LJ agreed) is relevant because he said at paragraphs 46 and 47:-

"First, there is a strong presumption that where the same formula is used in different parts of the same act it is intended to bear the same meaning.

Secondly, the fundamental reason which caused the House of Lords to overrule the construction adopted by the Court of Appeal in Clark v Novacold applies equally to s28B(1). This was that on the Clark v Novacold construction, whenever the reason for a person's treatment related to his disability he would be logically bound to be able to satisfy the requirement that his treatment was less favourable than would be accorded to others to whom the reason did not apply. The comparative test would not be a test at all: see Lord Bingham at 13-16, Lord Scott at 32-34, Lord Browne at 112-113 and Lord Neuberger at 137-142."

23. This Appeal Tribunal has now held that the reasoning in Malcolm applies to employment discrimination cases. In Child Support Agency v Truman [2009] IRLR 277, that conclusion was reached. Even more recently in Stockton on Tees Borough Council v Aylott [2009] UKEAT/0401/08/1103 this Appeal Tribunal also correctly in our view held that Malcolm applied to discrimination in section 3A(1) of the DDA.
24. It is common ground between counsel correctly in our view first that Malcolm applies to employment discrimination cases such as the present one and second that this means that an appropriate comparator in such cases was somebody who had all the features of the Claimant but who was not disabled within the meaning of the DDA. It is unnecessary to describe all the attributes of the comparator but he is likely to have been a person who had been absent from work for 4 months and who had been undergoing treatment but whose limitations did not make him "disabled" within the meaning of the DDA.
25. As the Employment Tribunal had no reason to predict the decision in Malcolm, it quite understandably reached a decision which was not consistent with this approach as it explained that:

(a) the letter handed to the claimant at the meeting of 27 November 2006 was a less favourable treatment for a reason related to the claimant's disability and created a hostile environment (paragraph 15 of the decision). The Tribunal referred to its comparator as "if the claimant had not been ill with cancer he would have not been absent undergoing treatment for cancer and the letter would not have been sent";

(b) In the letter of 19 February 2007 to the claimant in which the respondent explained that it could not continue the full pay of the claimant indefinitely and that this would be "financial suicide" was regarded by it as less favourable treatment for a reason related to the claimant's disability and created a hostile environment. The Tribunal said "if the claimant had not had surgery for cancer of the rectum he would not have been off work" (paragraph 3);

(c) The letter of 17 April 2007 in which the respondent explained that it could not create a temporary position without a medical report was less favourable for a reason related to the claimant's disability and created a hostile environment because the Employment Tribunal said "if he had not had cancer he would have not had the surgery and not have been absent from work"; and

(d) The letters of 16 May 2007 and 19 May 2007 to the claimant in which the respondent suggested a meeting and referred to company grievance procedure. The Tribunal at paragraph 35 refers to the "but for his disability [cancer of the bowel] the claimant would not have been off sick and seeking a planned return to work and but for his disability and the respondent's failure to consider adjustment he will have not raised a grievance".

26. As I have explained both counsel agree that this matter has to be remitted to an Employment Tribunal and that is what we shall do. We heard argument on the other issues but we concluded that it would not be sensible to give a judgment on them not only because this matter has to be remitted but also because the finding of the Employment Tribunal on each of these matters will have to be reconsidered in the light of the new choice of comparator. We note that in the Stockton case (supra), Slade J explained in relation to the conclusion that Malcolm applied to employment discrimination cases that:-

"113 In our judgment this conclusion need not leave disabled people who are disadvantaged for a reason relating to their disability but treated in the same way as non-disabled people without the possibility of redress. Although they may not now be able to establish that they have been discriminated against for a reason related to their disability within the meaning of section 3A(1), they may be able to establish discrimination by the employer's failure to make reasonable adjustments under section 3A(2) and 4A."

V Conclusion

27. It was agreed by counsel that this case would have to be remitted and it was agreed that it would have to be remitted to a different Tribunal. We stress that this is not a criticism of the original Tribunal but because all parties are anxious that the remitted hearing should take place as soon as possible. We hope, however, that this case could now be compromised or be the subject of mediation.