United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS LORRAINE MENSAH (of Counsel) Instructed by: Messrs Weightmans LLP Solicitors India Buildings Water Street Liverpool L2 0GA
For the Respondent	MS HELEN BARNEY (of Counsel) Instructed by: Messrs Simpson Millar LLP Solicitors 15A Walker Terrace Gateshead Tyne and Wear NE8 1EB


 


SUMMARY

DISABILITY DISCRIMINATION: Reasonable adjustments

The Claimant suffered from plantar fasciitis and asthma. The Tribunal found disability discrimination in that the employer had failed to make reasonable adjustments in that (1) it did not discount a period of absence caused by plantar fasciitis in 2005 (at a time when neither party realised that the Claimant's foot condition might amount to a disability) when determining to dismiss him for poor attendance in July 2007 and (2) it did not make further inquiries as to whether his absence in April 2007 might have been caused by an interaction between a flu jab and his asthma (the Respondent's medical advice then being that the asthma was mild and did not amount to a disability and there being no medical evidence that the flu jab and the asthma might have interacted). The Respondent appealed on the grounds that the decision was not Meek compliant and other grounds. Held: the decision was not Meek compliant. The Respondent could not see why it had lost and the case should be remitted for re-hearing before a different panel.


 


HIS HONOUR JUDGE REID QC

1. This is an appeal by the Respondent, Royal Mail Group Ltd, from the decision of an Employment Tribunal sitting at Truro on 23 and 24 July 2008. The decision was sent to the parties on 2 September 2008. By its decision the Tribunal held that the Claimant, Mr Hunkin, had been unfairly dismissed and that the Respondent had discriminated against him by failing to make reasonable adjustments.
2. The Claimant was employed as a postal operative at the Respondent's depot at St Austell from May 1987 until 15 October 2007 when he was dismissed. The reason for his dismissal was because he had triggered the stages in the Respondent's Attendance Procedure.
3. Before the Tribunal it was conceded that the Claimant was disabled by reason of asthma, and the Tribunal also found that he was disabled by reason of the condition of plantar fasciitis. There is no appeal against that finding.
4. The Respondent's Attendance Procedure operates in three stages. Minimum standards of attendance are laid down in each stage. The first stage will be triggered by four absences, or a total of 14 days absence, in a 12 month period. Once that stage has been triggered the relevant manager should discuss the matter with the employee to consider what action, if any, may be necessary and why the individual has had this amount of absence. The procedure provides that the employee may be represented by a trade union representative or a colleague and should be reminded of the Employee Health Service, which is available to him. Following this the manager may issue a Stage 1 warning, which is designed to underline to the employee that an improvement is necessary. If the employee then has two further absences, or a total of 10 days absence, in any six-month period during the next 12 months Stage 2 is triggered. A similar procedure is followed. At the conclusion of procedure the manager may issue a Stage 2 warning. If after a Stage 2 warning, the employee has two absences, or 10 days absence, in any six-month period during the next 12 months, Stage 3 is triggered. At Stage 3 the manager will consider dismissing the employee for poor attendance. The manager must refer the employee to Employee Health Service and must hold or invite the employee to a meeting to discuss the situation and seek any explanation that the employee wishes to put forward. At each stage in the proceedings the manager has a discretion not to issue a warning, to decide that periods of absence shall be discounted, to revert the employee to a previous stage, or simply to take no action. If the manager decides that the employee should be dismissed the employee has a right of appeal.
5. There is no right of appeal against a Stage 1 or a Stage 2 warning, but some employees raise a grievance against such warnings, and this procedure acts in effect as a form of appeal. There is the additional safeguard for the employee in the procedure that at each stage "All absences up to and including the day of the interview will be included in the overall review of absence for that stage and will not count towards the next stage of the procedure". Thus at the Stage 3 interview the employee can seek to re-open questions relating to an earlier absence and can seek to argue that such earlier absence should not be taken into account. Indeed in his ET1 the Claimant specifically refers to the Respondent taking into account absences going back to January 1999.
6. The policy provides that absences incurred by employees who are "disabled in accordance with the Disability Discrimination Act 1995 and which, in the view of the Employee Health Service, are related to their disability will normally be discounted". The policy makes it clear that this is not always the case and that the absences will still be recorded in the employee's sick absence record. The line manager will still carry out return to work discussions, explain that the relevant absences have been discounted and discussed whether assistance from the Employee Health Service or Royal Mail would help with disability related attendance problems, including consideration of any reasonable adjustments. Absences which are disability related may be counted where it is justifiable to do so and in these circumstances, the employee should be given advance warning that future absences will no longer be discounted.
7. The Claimant had evidently suffered from asthma before 1999. He began to suffer from plantar fasciitis in 2004. He had various absences, and as a result Stage 1 of the Attendance Procedure was triggered in September 2005. He had had two separate absences totalling 21 days: one for an operation on his nose to clear a blockage which was affecting his airway, and the second due to a pulled muscle in his back. The Claimant told his manager that he had tendon problems in his left foot, which from time to time became inflamed, but they were then currently in check. He was also recorded as having said that his scuba diving activities might have contributed to his breathing difficulties. The manager issued the Claimant with a Stage 1 warning. Although the Claimant was somewhat annoyed at being given a warning he decided not to pursue the matter any further.
8. The Claimant had an absence of two days in August 2005 owing to an injury to his arm, but it does not appear that the Respondents took any note of that absence. In December 2005 he had an absence of five days described as "injury to foot" and he had a further absence of 10 days from 29 March to 7 April 2006 due to an operation for circumcision, a procedure which had to be carried out as an emergency. As a result of these two absences the manager decided to invoke Stage 2 and invited the Claimant to a meeting on 24 May 2006. At the meeting the Claimant produced a letter from his physiotherapist, dated 9 December 2005 stating that he suffered from plantar fasciitis and detailing some of the difficulties this caused. The notes of the interview record that the Claimant explained that he had been treated by his GP concerning his feet, but now felt the problem had been solved for the foreseeable future. He did not suggest that his foot problem amounted to a disability. He also told his manager about his operation. At the conclusion of the process the manager issued a Stage 2 warning.
9. The Claimant had no further absences from work until February 2007 when he was off work for three days with "flu-like symptoms". He had a further period of absence from 3 to 7 April, again, with "flu-like symptoms". These absences triggered Stage 3 of the Attendance Procedure. Mr Millard, the Delivery Service Manager in Cornwall, obtained a report from Dr Steven Fisher, a consultant physician. Dr Fisher did not examine the Claimant, but on the basis of his occupational health records, the current sickness absence records, and the business referral form formed the view that the causes of absence appeared to be due to self-limiting, unrelated medical problems and whilst each period of absence appeared to be medically appropriate there was no evidence to suggest any underlying cause. His view was that it was unlikely the Claimant would be considered to fall under the Disability Discrimination Act and there was no medical reason evident why he would not be capable of his duties and he was therefore fit to work. Dr Fisher expressed the view that future absences were not expected to exceed that a healthy worker of the claimant's gender and age. Dr James, the Claimant's GP, wrote saying that she felt strongly that the Claimant had had only the minimum time off. In the course of the Stage 3 interview the Claimant stated that the two absences of flu-like symptoms were linked to his asthma. He said that the last time he had had a flu jab [apparently in early April] he nearly collapsed, and that his doctor said he was so poorly that she thought he should go to a local hospital and she had written a letter stating as much. The letter did not, in fact, refer to the flu jab or that he had nearly collapsed, but did say that he had been very unwell. It is also unclear how the timing of the effect of the flu jab fits into the scheme of things.
10. Mr Millard then referred the matter again to Dr Fisher, who provided a further report, having this time that spoken to the Claimant by telephone. Dr Fisher concluded that there was no evidence of any substantial impairment of any day-to-day function, such that the Claimant would be considered to fall under the Disability Discrimination Act. In response the GP wrote to the Claimant's union representative, saying she felt that the Claimant's plantar fasciitis and asthma were both covered by the Act. Mr Millard, on the Tribunal's finding, never saw that letter. At a further meeting on 23 July Mr Millard decided that the Claimant should be dismissed with notice to expire on 15 October. The Claimant appealed against that decision, and at the appeal hearing, conducted by Mrs Cook, the Customer Service Adviser based in Plymouth, the letter from the GP and a further letters from the Claimant's podiatrist and physiotherapist were produced.
11. Because Mrs Cook took the view that it was being asserted that Dr Fisher's report was inadequate she referred the matter back to him, asking whether it was necessary to have a face-to-face appointment to determine whether the Claimant's condition would amount to a disability. Dr Fisher responded that he did not consider that a face-to-face assessment would alter the information, that it did not appear from the treatment that the Claimant was being given for his asthma that it was anything other than mild, and that it was not severe enough to warrant consideration under the Act. Dr James responded with two letters: in the first she said that Dr Fisher did not appear to have taken account of the fact that that the steps the Claimant was taking to cope with his plantar fasciitis were keeping the problem more or less bearable and that she disagreed with Dr Fisher's assessment that there were no severe mobility problems. In her second letter she said that the Claimant's asthma was now stable, he had been unfortunate to suffer both flu and plantar fasciitis and she did not think he was likely to have cause to have regular periods off work due to ill health in the future.
12. Having dealt with the facts the Tribunal expressed its conclusions briefly with little reference to the law. It recorded the Respondent's submission that it was entitled to rely on Dr Fisher's report and acted reasonably in doing so and accepted that the duty to make adjustments only arose if the Respondent was aware that the Claimant had a disability, but went back to the Stage 2 warning and held that on the basis of what the Claimant said and the letter from the physiotherapist the manager conducting that interview should have "appreciated there was a problem" and "at the very least investigated the matter."
13. The Tribunal continued:

"29 ….Had he done so and been better informed the duty to have made an adjustment would have arisen. The attendance procedure specifies that disability related absences should be disregarded. We think that is the adjustment he should have made at that stage and discounted the claimant's absence in December 2005. We say that with some caution because the case that is being argued on behalf of the claimant is that the failure to make adjustments relates to the absences in April 2007, not December 2005 and indeed if there had been any failure to make adjustments in May 2006, that would have been long out of time and it does not appear that any grievance has been raised in relation to that. However, in our judgment the significance of it is this. If that had been disregarded by Mr Hunkin, as in our view it should have been the Stage 2 would not then have been triggered. The claimant would not have been at Stage 2 and Stage 3 would not have been triggered later on.

30 With regard to the interview that Mr Millard had with the claimant, we think there is one serious flaw. The claimant said quite clearly that he considered that his absence in April 2007 was attributable to his flu jab and linked to his asthma. We don't know whether that is right or not, but that is certainly what Mr Hunkin felt. If that were correct it would appear to be an absence which was not likely to recur. We think that a reasonable employer would have investigated that matter. There was evidence in the form of a letter from the GP, dated 3 May, that Mr Hunkin had been very ill at that stage, but there is no evidence at all that this particular point was ever put to Dr Fisher. He was never asked could it be that a flu injection in April could have resulted in the claimant's absence from work and that could be linked to his absence. We think that that is an enquiry that a reasonable employer would have undertaken and should have undertaken in this situation before reaching the conclusion that the claimant should be dismissed.

31 We have come to the conclusion that the failure to undertake that enquiry which seems to us to be fairly obvious to us on the face of the documents, if sufficient to render this an unfair dismissal and also sufficient for us to conclude that the respondent's breached the duty to make reasonable adjustments by discounting that absence in December 2005…."

14. The Respondent's grounds of appeal as refined by its skeleton argument raised five issues. (1) the Tribunal failed to identify a comparator; (2) there was no identification of any "substantial disadvantage" as between the Claimant and any comparator; (3) the Tribunal erred in its identification of "reasonable adjustments"; (4) the Tribunal failed to make clear findings and the decision was not "Meek compliant"; and (5) (a variant of (4)) the Tribunal failed to explain why the failure to inquire into the flu like symptoms led to a finding of disability discrimination.
15. We turn first to grounds (4) and (5): the Claimant referred to the well-known passage at para 8 of Bingham LJ's judgment in Meek v City of Birmingham [1987] IRLR 250 and submitted that the Respondent could see perfectly well why it had lost. We do not agree.
16. It is unclear what the basis was for the finding of disability discrimination. The Respondent's Attendance Policy cannot be said to place a disabled person at a disadvantage because it expressly provides that absences incurred by disabled employees which in the view of the Employee Health Service are related to their disability will normally be discounted. Whilst the Tribunal suggests that had the manager conducting the 2006 interview made further inquiries "the duty to have made an adjustment would have arisen" it appears to accept that there could be no claim for discrimination arising from the manager's failure to do so. With the benefit of hindsight in 2008 the Tribunal asserted that the 2005 absence should have been discounted at that time, but it unclear how it arrives at its finding of disability discrimination, given that it does not appear to be seeking to found it on the any actions or lack of actions in 2006. Indeed if and insofar as it was making any finding of discrimination on the basis of the 2006 meeting it is difficult to see the reasoning. It makes no examination of the evidence to enable it to conclude that if there had been further inquiries at that time the manager could or should have come to the conclusion that the Claimant was disabled within the meaning of the Act. The Claimant was asserting at the time that his foot problem had been solved for the foreseeable future.
17. So far as the finding in relation to the 2007 meeting is concerned, the Tribunal makes no mention of any section of the Employment Rights Act 1996 or the Burchell test. It is entirely unclear how it fits its finding in relation to the 2006 meeting into its findings in relation to the 2007 meeting. Nor is it clear whether the Tribunal is applying the correct test in relation to the 2008 meeting. It suggests that an inquiry as to whether the Claimant's absence in April 2007 was linked to the Claimant's April flu jab and his asthma was one a reasonable employer would have made, but merely suggests that this was because the claimant felt it was linked. There was no medical evidence to support that assertion. His own GP who wrote on 3 May 2007 arguing the Claimant's case did not connect the flu jab and his asthma whilst apparently stating he had been very ill at the time. While the Tribunal refers to the inquiry as being one "that a reasonable employer would have undertaken and should have undertaken" it is far from clear whether the Tribunal was substituting its own judgment for that of the employer. The further passage in paragraph 31 of the judgment "We have come to the conclusion that the failure to undertake that enquiry which seems to us to be fairly obvious to us on the face of the documents, if [sic] sufficient to render this an unfair dismissal" reinforces the suspicion that the Tribunal was substituting its own view for that of the employer and was not properly addressing the question whether the inquiry made by the employer fell within the band of reasonable responses.
18. On that basis it seems to us that the decision of the Tribunal cannot stand and the matter ought to be remitted for a fresh trial before a differently constituted Tribunal.
19. In the light of this conclusion we can take the remaining grounds of appeal fairly shortly.
20. So far as the first ground is concerned, there was no need for the Tribunal expressly to identify a comparator in a case such as this where the claim, as considered by the Tribunal, appears to have been one of discrimination by reason of failing to make reasonable adjustments under section 4A. The provisions of section 4A of the 1995 Act apply where "a provision, criterion or practice applied by or on behalf of an employer … places the disabled person at a substantial disadvantage in comparison with persons who are not disabled."
21. Claims under this provision are unaffected by the decision of the House of Lords in Lewisham LBC v Malcolm [2008] UKHL 43. As Slade J observed in Stockton on Tees BC v Aylott UKEAT/0401/08/CEA at para 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." There was no need to "identify and deal with" a non-disabled comparator in these circumstances.
22. As to the second ground, the failure to identify the "substantial disadvantage", the Tribunal appears to say that there was a failure to make a reasonable adjustment in 2005 and that this had a knock on effect in 2007. It appears to identify the substantial disadvantage as being the Claimant's being given a Stage 2 warning by reason of his absence from work owing to what was subsequently determined by the Tribunal to have been a disability, his plantar fasciitis, rather than the Respondent's Attendance Policy itself. As indicated above we have difficulty with this finding against a background where the Claimant was not suggesting he was disabled, but rather that he felt the problem had been solved for the foreseeable future and there was no medical evidence to support a finding of disability. In the circumstances we sympathise with the Respondent's difficulty on this point but regard it as another manifestation of the failure to give adequate reasons.
23. The third ground of appeal was that the decision of the Tribunal that the Respondent had failed to make a reasonable adjustment in connection with the Claimant's foot condition in December 2005 was fundamentally flawed. It was argued that even if an adjustment had been made by disregarding the five day absence in December this would not have changed the outcome of the decision to place the Claimant on a Stage 2 warning, because from 29 March to 7 April 2006 he was absent for 10 days, and that by itself would have triggered Stage 2 warning whether or not the absence in December was discounted. In our judgment this is a false point. The manager in deciding to give the Claimant a Stage 2 warning took into account the whole of his attendance record, including the 5 day absence in December. While it is correct that he could have imposed a Stage 2 warning on the basis of the 10 day absence alone, it does not follow that he would have done so. It is not possible to argue that the 10 day absence alone would inevitably have triggered a Stage 2 warning. This ground of appeal is therefore of no substance.
24. We conclude however for the reasons given in respect of grounds 4 and 5 that the decision is defective, that the judgment should be set aside and that the case should be remitted for a fresh hearing before a differently constituted tribunal.