United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CLIVE RIDGE (The Appellant in Person)
For the Respondent	MR JONATHAN BERTRAM (of Counsel) Instructed by: Messrs Flint Bishop & Barnett Solicitors St Michael's Court St Michael's Lane Derby Derbyshire DE1 3HQ


 


SUMMARY

DISABILITY DISCRIMINATION

Disability related discrimination

Direct disability discrimination

Reasonable adjustments

The Employment Tribunal correctly dismissed claims that the Respondent had failed to make two reasonable adjustments. But it failed to deal with the Claimant's comparators in respect of discretionary payment systems and this aspect of direct or disability-related discrimination was remitted to the same Employment Tribunal.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case concerns the comparison to be made for the purpose of a claim of disability discrimination and reasonable adjustments to be made in respect of a disadvantage suffered by a disabled person. This is the judgment of the Court, to which all members have contributed. It includes one aspect which is to be allowed by consent, and so our judgment can be the shorter. 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 a judgment of an Employment Tribunal sitting at Plymouth under the chairmanship of Employment Judge Hollow over four days registered with reasons on 9 March 2009. The Claimant represents himself and Mr Jonathan Bertram the Respondent.
3. The Claimant made claims under the Disability Discrimination Act 1995. While dismissing most, the Employment Tribunal upheld one aspect of the claim and awarded the Claimant £1,250 in compensation for the Respondent had dragged its feet in dealing with the Claimant's grievance.
4. The Claimant appealed against the other aspects of the judgment. Directions sending the appeal to a preliminary hearing were given by Underhill P. At that preliminary hearing, where I sat with Members, the Claimant had the advantage to be represented by leading counsel who transformed the case for him; see the judgment I gave on 16 December 2009. ACAS conciliation was directed. Other aspects of the case were dismissed or fell away leaving three crisp points to be argued on appeal.

The legislation

5. The legislation is not in dispute in this case and it is succinctly summarised in the following way by Mr Bertram:

"Direct disability discrimination

3. A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from those of the disabled person: s.3A(5) DDA 1995.

Duty to make reasonable adiustments

4. A person 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: s.3A(2) DDA 1995.

5. 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: s.4A(1) DDA 1995.

6. Guidance is given as to the nature of reasonable adjustments via s.18B DDA 1995. In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking;

7. A Tribunal that considers a claim that an employer has discriminated against an employee pursuant to s3A(2) DDA 1995 by failing to comply with the s.4A duty must identify:

(a) the provision, criterion or practice applied by or on behalf of an employer, or

(b) the physical feature of premises occupied by the employer,

(c) the identity of non-disabled comparators (where appropriate) and

(d) the nature and extent of the substantial disadvantage suffered by the Claimant."

6. It is common ground that the Employment Tribunal is required to go through a four-stage process as identified by the Employment Appeal Tribunal in Environment Agency v Rowan [2008] IRLR 20.

The facts

7. The Respondent is engaged in the registration of land in the United Kingdom where it employs 18,500 people. The Claimant is a software engineer at Plymouth. He is disabled by reason of depression. He raised a number of claims against the Respondent in respect of the way in which the Respondent should operate its payments to people who are on long term sick leave. The payment system is regulated by chapter 6 in the management handbook. Sick pay is provided for six months at full pay and six months at half pay in any case. Thereafter the provision of 6.2 (SPPR) comes into play as follows:

"6.2 Sick Pay at Pension Rate (SPPR)

6.2.1 Once an employee has exhausted their allowance to full and half sick pay, any further sick absence will normally be at no pay. However, there may be an entitlement to SPPR for a period of up to12 months.

6.2.2 SPPR is based on the amount of pension the employee would have received had they been retired on ill-health grounds at the time their allowance to paid sick pay expired. It is only payable where you are satisfied, from medical evidence, that there is a reasonable prospect of the employee returning to duty within an acceptable time scale. Seek the advice of the OHA if necessary.

6.2.3 Keep the employee informed in writing of decisions taken regarding their entitlement to SPPR.

6.2.4 Decisions on the payment of SPPR should be made in sufficient time before the no-pay date to allow for the rate to be obtained from Paymaster. Ten working days should be allowed for Paymaster to supply this information.

6.2.5 Where SPPR has been approved and the employee resumes duty, payment of further sick absences may be made at SPPR (if considered eligible) within a period of 12 months from the date of the original decision to pay the allowance.

6.2.6 If SPPR is calculated to be higher than half pay, SPPR will be put into payment but limited to the rate of half pay.

6.2.7 SPPR is not regarded as paid service and does not reckon towards entitlement to maternity leave or pension awards."

8. Separately from that is a further act of grace in the payment of what is described as the "extension of paid sick leave". It was considered in this case but about which nothing further need to be said.
9. The Claimant was the beneficiary of an occupational health report into his condition. The Respondent refused to apply SSPR to him. It declined to make two adjustments which he had sought to reduce the substantial disadvantage which he considered he was under by reason of his depression; viz, to take him out of an open plan office since he was prone to loss of concentration and to provide him on his return to work after a long period of absence with retraining on a software program known as 'Business Objects'.
10. Those are the three issues which are live on appeal.

The comparators

11. The Claimant contends that the Employment Tribunal did not examine the actual comparators he put forward. A spreadsheet before the Employment Tribunal consisted of the unknown named cohort of 49 persons including the Claimant, who he said were in the same position as he, that is they had exhausted their sick pay and then became susceptible to paragraph 6.2. As to this, the Tribunal misrecorded a submission made by Mr Bertram for it said at paragraph 3:

"It is argued on the behalf of the Respondent that there is no evidence of any actual comparator and that the comparator we should use in the circumstances, is a hypothetical comparator who is not disabled but who suffers from a condition which has caused recurrent absences from work in the way the Claimant's disability has."

12. Mr Bertram, who if we may say has conducted the submissions on the appeal with commendable professionalism, accepts that this is a misdirection. It is in two parts. He is rightly critical of the way this submission is attributed to him because, as was plain to him and to Mr Ridge, Mr Ridge had produced a list of 49 people and the Tribunal seems to have put that to one side. It does not reflect upon any of them in its judgment. Secondly, the way in which the Tribunal places attributes on a hypothetical comparator goes beyond paragraph 6.2 and in the order which we will make in this case a specific direction is to be given as to the correct attributes. Broadly speaking, it is to consider the circumstances under 6.2 and to compare those with and without a disability to whom it applies.
13. The Respondent recognised at an early stage that an appropriate way to deal with the appeal would be by remission. During the course of today's hearing consent has been forthcoming to remit this to the same Employment Tribunal. We reflected on whether it was proportionate to send this matter back to the same Tribunal but bearing in mind both sides have won and lost before it, it was a four-day hearing, it is a substantially measured judgment much of which has been upheld by us, the parties will not have loss confidence and the Tribunal should carry out the duty with which it was fixed, which is to look first at the comparators put forward by the Claimant; and secondly, and if necessary, infusing its consideration of a hypothetical comparator by reference to the discarded actual comparators if that were to be its view.

Reasonable adjustments

14. We then turn to the second aspect of the case which is to do with reasonable adjustments. This is in two parts.
15. As to the Business Objects, we did not need to call upon Mr Bertram because we are clear that the Tribunal made very significant findings of fact in a fact sensitive area to indicate why the Claimant was not at a substantial disadvantage when he came back to work onto Business Objects without retraining. Indeed, in his answer to a question by us he accepted that other people returning from sabbatical or maternity leave of a comparable length to his absence would not have been given retraining in Business Objects either. So this finding by the Tribunal against the Claimant will be upheld.
16. The second adjustment the Claimant sought was that he should not have to work in an open plan office. Again this is fact sensitive but the point is that the Occupational Health report which was to drive the decision-making on adjustments does not link lack of concentration, which the Claimant had by reason of his depression, to working in an open place office. Nor was it a matter which he raised in either of the two meetings he had with Mrs Jago, the relevant officer, in June and October 2007. Indeed the Tribunal made a finding as to what was causing his difficulty in maintaining concentration and it is not to do with his having to work in an open plan office. The factual basis for this claim is not made out. However, confusion has been brought into this case by what are agreed typographical errors in the Tribunal's judgment [since the Tribunal provides two paragraph numbers 10 and 11 we have renumbered the second couplet as 11A and 11B]:

"24. There was a requirement that he should work within an open plan office. We are not satisfied that on the basis of the evidence before us that that physical requirement placed the Claimant at any greater disadvantage than a non-disabled person. The medical evidence does not suggest this presented him any difficulty which was [not] attributable to his underlying depression. We do not lose sight of the fact that the duty to make adjustments rests on the respondent and there is no duty on the claimant to suggest adjustments but when asked if there was anything the respondents might do he was unable to suggest anything. The disability here was depression and not any visual or auditory impairment. Had it been a screen might have been a possibility but having regard to the nature of the claimant's difficulties and his attendance record we doubt that a screen would have been effective to cure the problem. In our judgment the fact that the respondent did not consider each and every adjustment which might possibly assisted, however remote the possibility may have been, does not amount to a breach of the duty and we so find."

17. The word "not" in the third sentence is to be deleted, only then is it consistent with what has gone before, the gist of the findings, and it was this which attracted our attention at the preliminary hearing. Similarly the use of the words "cure the problem" is not we think a misdirection. It is not the function of reasonable adjustments to cure a particular problem but to reduce the disadvantage the Claimant is substantially affected by in respect of his disability. So, those two helpful agreed approaches to that paragraph make sense of the finding by the Tribunal that the Claimant was not at a substantial disadvantage by reason of his depression requiring the Respondent reasonably to adjust the workplace to have him removed from the open plan office.
18. We would very much like to thank Mr Bertram and Mr Ridge for their approach to resolving this matter today. The appeal is allowed by consent in part. [Directions repeated as to ACAS conciliation of all the Claimant's claims].