THE HONOURABLE MR JUSTICE LANGSTAFF
Introduction
1.
We have been asked to consider two appeals. The first is by the West
Midlands Police against a decision of the Tribunal at Birmingham of
25 January 2011, in what we shall call the liability hearing. The
second is by the former police officer concerned, Mr Gardner, against the
decision reached on the remedies hearing by the same Tribunal on
19 August 2011.
2.
In its liability decision the Tribunal dismissed claims that the police
had directly discriminated against the Claimant under the Disability Discrimination Act 1995
and rejected claims of harassment. It accepted, however, that the police force
had failed to comply with its duty to provide a reasonable adjustment for the
disability of the Claimant and had thereby discriminated against him under ss.3A(2)
and 4 of the 1995 Act.
3.
The essential facts are these, so far as the Tribunal recite them. The
Claimant injured his knees, principally his right knee, whilst on operational
duties on 4 February 2006. At that time he had been working just
over 20 hours per week by arrangement with the force. There followed a series
of operations on his knees and periods when, in consequence of those operations
or their aftermath, or the condition of his knees, the Claimant was absent from
work.
4.
The Tribunal reasons contain a detailed history, much of which was
relevant to the decisions made on the other claims which were dismissed, which
do not feature in the argument before us. We can summarise, therefore. There
were a number of referrals by the police force to its occupational health
medical advisers. Consistently, those advisers reported that the Claimant was
fit for office-based light duties but should not be exposed to confrontational
or similar duties, nor to prolonged sitting.
5.
The three doctors who reported suggested that he would in due course be
fit to return to full-time working of an operational kind. That was
inconsistent with the view which had been expressed to the Claimant by his own
medical advisers, including a consultant, Mr Learmonth, who regarded his
loss of function as permanent, such that he should be retired to office duties
only.
6.
Suffice it to say that ultimately, but after the relevant dates with
which we are intimately concerned, the matter was referred to a police medical
appeal board which, on 28 August 2008, said this:
“The Board’s view is that Mr Gardner’s knee problems lead
to a disability which is permanent. This will render Mr Gardner from
being unable to carry out operational duties including confrontational work,
running and walking anything other than short distances. We consider that
Mr Gardner is fit for the other duties of a police officer, such as
control room, administrative work, gathering of prosecution evidence,
monitoring CCTV surveillance. We consider that he could do such duties for the
same hours that he is contracted currently with the police and full time work
if appropriate adjustment consistent with the DDA were applied. It is up to
the police authority to decide if Mr Gardner can continue to be employed
on his contracted hours with the physical restrictions as stated above. The
Board considers that Mr Gardner is permanently disabled from carrying out
the normal duties of a police officer.”
There were three consultant medical practitioners on the Board,
two physicians and one orthopaedic surgeon.
7.
One of the difficulties which the Tribunal had to face, though it does
not itself record it as such, was that the parties were agreed that the
Claimant was disabled by the time the matter had come before the Tribunal.
That had been in contention earlier, since the police had not recognised the
permanence of his condition until knowing the result of the police medical
appeal board, and the unanimous consultant opinion it expressed, to which we
have referred.
8.
However, the parties were not specific about precisely what the
disability was. Before the Tribunal it was accepted between the parties that
the disability was a knee condition. That knee condition was not identified.
The functional effects of it were not spelt out. The Claimant’s claims that he
also suffered from a back problem, and his claim to have suffered consequences
in terms of stress or depression, were not part of his accepted disability,
though they too might have had functional significance.
9.
The difficulty to which this might give rise is apparent if one
considers s.l of the Disability Discrimination Act 1995.
In its relevant part, it provides:
“1
(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.”
10.
Disability is thus defined for the purposes of the Act by the effect
which the physical impairment concerned has on the ability to carry out normal
day to day activities. When considering the question of reasonable adjustment,
the substantial and long-term adverse effect on ability to carry out normal day
to day activities is likely to be central. Without understanding what the
effect on normal day to day activities actually is, it can become impossible to
know what adjustment is necessary or reasonable.
11.
The facts of this case demonstrate, as we shall show, how important it
is for a Tribunal when considering any case in which the effects of the
disability may not be entirely obvious, and where there may be a dispute about
the nature of an adjustment which it is reasonable to have to make in respect
of the functional effects of that disability, to have a clear idea of that
which it is of which the disability consists.
12.
The Claimant, after making various attempts to return to work, and after
various measures had been taken by the police to help him to do so, found
himself at the end of 2007 being off work. He arranged with the police to
return to work on 17 January 2008 for limited hours. The intention was
to progressively increase hours over some time till reaching the 20 hours or so
that he had previously worked.
13.
The agreement was that he would be assisted in coming to work by being
taken in a taxi. At work, he would be free to move around, presumably to
relieve the stiffness in his knees, though that is not identified specifically
as a reason, and the hours were to be flexible between 10.00am and 2.00pm.
14.
Having returned to work on 17 January 2008, he worked until
25 February 2008 when he submitted a grievance complaining that the
police had not made appropriate adjustments throughout 2007 and that there were
inappropriate short-term adjustments then in place. Three days later he
reported sick and did not, thereafter, return to work. He ultimately resigned
on 4 February 2009.
The Tribunal Decision
15.
The Tribunal reached its decision, having set out the facts and having
examined much of the medical history but without, as we have noted, clearly
identifying what the consequences of the disability were for the Claimant in
terms of what he could or could not do, and what difficulties it caused him at
work. The pattern of its decision is as follows.
16.
First, at paragraph 138, it identified the issues it had to determine.
So far as relevant to the claim which it ultimately accepted, the Tribunal
asked in respect of the first issue which had been identified by the police,
and which the Tribunal considered encapsulated the issues the Claimant also
wished it to decide:
“Was a provision, criterion or practice applied by or on behalf
of the Respondent (hereinafter PCP) that a police officer was required to work
at a West Midlands site in a temporary role.”
17.
It found that provision to have been applied. It regarded an
appropriate comparator as being an officer without a disability working at his
or her post. Then, and critically, it turned to the questions of disadvantage
and adjustment. It did so in respect of the law which it had earlier set out
and which it is appropriate for us to set out now.
18.
Under s.3A(2) of the 1995 Act:
“3A
2
[…] 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.”
19.
S.4A is headed “Employer’s Duty to Make Adjustments”. It reads:
“4A
1. 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.”
20.
That is amplified by s.18B which reads:
“18B
(1) 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;
(g) where the step would be taken in
relation to a private household […]”
21.
Returning to its conclusions, the Tribunal identified the answer to the
question “if so, did the above PCP place the Claimant at a substantial
disadvantage in comparison with persons who are not disabled and, if so, how?”
as being:
“The nature of the substantial disadvantage suffered by the
Claimant was his inability to consistently work at a West Midlands site even in
a temporary role. This placed him at the disadvantage of being at risk of
having his contractual pay reduced and, ultimately, removed.”
22.
As to the question, or issue, “if so, was it a reasonable step in all
the circumstances of the case for the Respondent to have to take in order to
prevent the PCP from having the above effect to permit the Claimant to perform
his police duties from home?” the answer to this was at paragraph 141:
“141. The reasonable step asserted by the Claimant is set out
succinctly at page 306 of the bundle, namely his request that his working
practice becomes remote working so that he can operate between the workplace
and a home office.”
23.
The Tribunal were there, in our view, setting out the reasonable step for
which the Claimant argued. It was his assertion which they were there
reporting, not the Tribunal’s conclusion. That is evident, as we read the
decision, from the words with which the next paragraph, 142, begins:
“142. In deciding whether this was a reasonable step to
take the Tribunal has assessed the situation at various dates […]” (emphasis
added)
24.
Paragraph 141 refers to page 306 of the bundle which was before the
Tribunal. Earlier in its decision, the Tribunal had made reference to the same
page - in paragraph 48, the Tribunal recited, as part of its description of the
facts, the terms of one of four letters which the Claimant had written on the
same date to his employer in October 2007. Curiously, though written on
the same date, these letters were inconsistent one with another. But in the
fourth, the Claimant said:
“Remote working
I have today returned to duty with a disability and in need of
workplace adjustment. Among the limitations are a daily 2 hour time limit
(including travel, mobility restrictions and the need for control and self
regulation of my environment and activity). Additionally I have to manage the
time of day that I will be able to work as the after effects of pain relief
taken during the night can affect my ability to work in the mornings.
I request that my working practice becomes remote working so I
can operate between the workplace and the home office.”
25.
He then set out benefits of this, which did not directly deal with his
condition, save to say that by minimising travel it would help to ensure that
his condition would not worsen.
26.
It is the argument of Mr Scott, who appears for the Claimant to
resist the appeal, that by saying what the Tribunal did at paragraph 141 it was
reflecting the fuller and longer version which is set out at paragraph 48 and
derives from one of the four letters of October 2007. That is where the
phrase, operating “between the workplace and the home office” comes from.
27.
He maintains that we should read the Tribunal’s decision as endorsing
that part of that letter as the Tribunal’s own view of the Claimant’s condition
and its effects, namely that the Tribunal were there accepting that it was, by
reason of his disability, necessary for the Claimant to manage the after
effects of pain relief. Mr Scott’s submission is that what placed the
Claimant at a substantial disadvantage in having to go to a West Midlands site
to work, albeit on a temporary basis, was the unpredictability of his pain
management regime and its effects upon him. Some mornings he would simply not
be able to work or to get to work. His attendance would be unpredictable. All
that could be remedied by working largely, or partly, from home.
28.
Working “between the workplace and a home office” would, on this
approach, be spending part of the time at either, the choice depending upon the
state in which the Claimant’s pain then was, and was deliberately kept flexible
so that he, being in the best position to manage it, could do so. Mr Scott
asks us to conclude that that is what the Tribunal understood and was saying
that it regarded as the aspects of the Claimant’s disability that put him at
the substantial disadvantage which an adjustment should be designed to rectify.
29.
The Tribunal, at paragraphs 143 through to 145, dealt with occasions earlier
than the occasion in 2008 when the Claimant had attempted return to work. It
did not consider that it was reasonable for the police force to accede to the
request for remote working at any of those stages. There is no challenge to those
findings.
30.
In paragraph 146, however, the Tribunal said this:
“146. By 28 February 2008 the managed return to work
had failed and the Claimant had again reported sick. At no stage after that
point did the Respondent revisit the Claimant’s earlier request to be
considered for remote working. It is significant that there are
contemporaneous documents indicating that the Occupational Health Service had
doubts about the genuine nature of the Claimant’s restrictions. It was
suggested that he be subjected to surveillance. He was not recognised as
having a disability. On 17 January 2008 it was asserted that the
Claimant was reluctant to return to work. This assertion was made despite the
fact that at that stage the Claimant was engaged in a managed return. On
1 February 2007 Chief Superintendent Coall had asserted that the
problem with the left knee should be seen as a separate issue.”
31.
The Tribunal said the police had made a number of assumptions which had
influenced the approach it adopted after February 2008 which was in effect
not to accede to the request for remote working.
32.
Paragraph 146 did not deal with any answer as to the nature of the
adjustment in respect of which, in the words of the statute, it was the duty of
the employer to take steps which it was reasonable for him to have to take in
order to prevent the provision, criterion or practice or feature having the
effect, i.e. the effect of placing the disabled person concerned at a
substantial disadvantage.
33.
This issue of reasonable adjustment was returned to by the Tribunal at
paragraph 147. This requires recitation in full:
“147. It is material that Chief Superintendent Holmes
refers to Mrs Turner actively pursuing home working option. He would not
have done so had no such option been available in principle. Although counsel
for the Respondent enjoins the Tribunal to be cautious about the documentation
produced by the Claimant which makes reference to home working, a number of
these are documents placed in the public domain by or on behalf of the
Respondent. One was being advanced by the Respondent in pursuit of an award
which it won. In addition to those general documents the Tribunal has received
specific evidence about three individuals working from home. The Respondent
has been able to accommodate their needs. The Tribunal accepted that there are
security issues around home working but a force the size of the Respondent,
endorsing as it does the principles of home working, should have been able to
allocate sufficient unprotected material to enable the Claimant to pursue the
option of remote working as part of a managed return to his contracted
part-time hours. Other smaller forces have home working policies in place and
it is no defence for the Respondent to assert that no formal policy exists and
that accordingly home working cannot be a reasonable adjustment. The failure
of the Respondent to consider remote working from a home base after February 2008
represents a failure to make that reasonable adjustment. Rather than
revisiting the option of remote working once the Claimant had demonstrated he
was unable to return to work at a West Midlands site the Respondent chose to
concentrate its energies on resisting the Claimant’s application under the H1
process [that we understand to be a reference
to the medical process under which an ill-health pension may be offered to
police officers]. That application was provoked by the failure of the
Respondent to acknowledge the extent of the Claimant’s restrictions. It was
the only avenue left to the Claimant.”
34.
At paragraph 148, the Tribunal went on to consider what would have
occurred if the Respondent had offered that reasonable adjustment, after
February 2008. It did so, because there had been evidence that the
Claimant had become dissatisfied with the way in which he had been dealt by his
employer. It identified that he would have been considered fit to carry out
the duties identified by the medical appeal board in its conclusions. The
difference would be that he would have been carrying out that work remotely.
The consequence, it found, would be that he would not have left police service
early, and he would have continued working remotely.
The submissions
35.
We would like to record our gratitude to both counsel, for the clarity
and quality of their submissions on this part of the appeal. They have
displayed much of the focus which is important in presenting issues to an Appeal
Tribunal. For the police Appellant, Mr Basu, who appeared below (as
Mr Scott did not), argued that in the conclusions to which we have
referred the Tribunal had simply assumed that the postulated adjustment was
reasonable and, in doing so, had missed what were essential steps in the necessary
analysis.
36.
It had wrongly, he submits, found that a failure to consider
remote working (see the wording in paragraph 147) was, itself, a breach of a
s.4A duty. It had failed to have explicit regard to the s.18B factors, to which
it was mandatory for a Tribunal to pay regard. It had failed to identify the
nature and extent of any substantial disadvantage (as emphasised in Environment Agency v Rowan [2008] ICR 218), misunderstood the nature of the s.4A
duty, failed to explain how the Tribunal thought that the Claimant could carry
out the duties (for which the medical appeal board had found him fit) by remote
working, had wrongly taken into account the circumstances of three other
officers who had, it was accepted by the Tribunal, been working remotely, since
those circumstances were not comparable to those of the Claimant, had assumed
that suitable work should have been available for the Claimant (rather than
asking what particular work was available, in particular given the confidential
nature of much police work), had wrongly concluded that the Respondent’s
defence to the issue of reasonable adjustment was to assert that because no
formal home working policy existed, therefore home working was not an
adjustment reasonably to be made (and that if that were rejected, then the
adjustment claim was well-founded) and finally, that it had focused on
irrelevant considerations, such as the thought processes and motives as
referred to at paragraph 146, as we have reported in part.
37.
Those arguments, as it seems to us, cover a number of areas but
centrally they require a focus by this Tribunal upon the reasons why the
Tribunal found that there had been a failure to make a reasonable adjustment.
38.
In Environment Agency v Rowan at paragraph 27 is said:
“In our opinion an Employment Tribunal considering a claim that
an employer has discriminated against an employee pursuant to section 3A(2) of
the Act by failing to comply with the section 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. It
should be borne in mind that identification of the substantial disadvantage
suffered by the Claimant may involve a consideration of the cumulative effect
of both the 'provision, criterion or practice applied by or on behalf of an
employer' and the, 'physical feature of premises' so it would be necessary to
look at the overall picture.
In our opinion an Employment Tribunal cannot properly make
findings of a failure to make reasonable adjustments under sections 3A(2) and
4A(1) without going through that process. Unless the Employment Tribunal has
identified the four matters we have set out above it cannot go on to judge if
any proposed adjustment is reasonable. It is simply unable to say what
adjustments were reasonable to prevent the provision, criterion or practice, or
feature, placing the disabled person concerned at a substantial disadvantage.”
39.
Mr Basu argues that the Tribunal does not explain why it considered
that home working was a reasonable adjustment. It does not say what it was
about the work which the Claimant had been doing in January and
February 2008, that gave rise to a substantial disadvantage.
40.
It was not sufficient simply to say it was his knee condition.
Mr Basu pointed to what might be thought the most obvious consequences of
such a condition. First, there might be some difficulty in mobility and associated
difficulties in using private or public transport to get to work. That, he
said, could not sensibly have caused substantial disadvantage here because, the
employer had provided a taxi, so that the Claimant could travel without needing
to work the pedals of his own car, and without being exposed to the
difficulties of travelling in the crowded spaces often afforded by public
transport and, indeed, was allowed to work at a time which was outside the
notorious Birmingham rush hour.
41.
Second, he noted that there was evidence which it is accepted before us
was before the Tribunal, to the effect that the Claimant had, whilst off sick
as a police officer in May 2008, used his own car to make visits to
clients in performance of an insurance-related business which he pursued for
personal profit though still in police service. He points to this not so much to
deride the Claimant for it, though he does - and we ignore that part of his
submissions as irrelevant to the issues we have to decide - but relevantly to
submit that, that evidence being before the Tribunal, it is difficult to
understand what feature of transport to work or mobility the Tribunal had particularly
in mind as causing substantial disadvantage without the Tribunal identifying it.
Use of his own car could not have been unreasonably difficult.
42.
Third, it might be that the arrangements at work needed to be such that
the Claimant’s knee joints did not stiffen. That would require a focus upon
the nature of the condition and its precise consequences in terms of function
and effect. But in any event his condition had not, submits Mr Basu,
caused him any obvious problem in 2008 when, as the Tribunal reported at paragraph
65, there were in place measures such that he could regularly move away from
his workstation. A workplace assessment said that he had identified that a
more active role might lead to better management of his condition.
43.
If the reason why home working was the adjustment to be made, rather
than other adjustments at work which, following on from the police medical
assessment board decision, had been offered (though un-specifically) by the
police, was the need to avoid the stiffening of joints, or to be more active, then
that is not expressed by the Tribunal.
44.
Mr Basu, in his submissions, did not deal with that which
Mr Scott identified as the feature of the Claimant’s disability which in
fact (he submitted) caused the disadvantage, namely his difficulties with pain
management and control and the lingering effects of palliative medicine upon
his waning performance.
45.
We, for our part, would simply observe at this point that we understand
from the circumstances, as generally described by the Tribunal, why it was that
Mr Basu might not have appreciated that that was in the mind of the Tribunal. It
simply did not say so. It might not be thought the most obvious of
consequences arising out of a knee condition, otherwise unelaborated.
46.
Allied to the submission that there was no material from which he could
identify precisely what the adjustment was required to remedy, and why it would
be reasonable for the employer to have to make it, Mr Basu drew attention
to the precise wording of s.4A to raise a question of statutory interpretation.
He argued that the words “reasonable […] for him to have to take in order to
prevent […] that effect” included the words “to have to” in front of the word
“take”. If the issue had simply been what steps were reasonable, the words “to
have to” would not be present. They must have a function. Mr Basu
submitted that the purpose was to emphasise the compulsive nature of the duty.
It was to be read as “to be obliged to take”. For his part, Mr Scott
argued that the words did not import an obligation, as Mr Basu submitted.
More naturally in context, they emphasised the necessary nature of the
adjustment which it was reasonable to take.
47.
We do not consider that it is necessary for the resolution of this
appeal that we resolve this issue of statutory interpretation. Our inclination
would be to favour the approach urged by Mr Scott, for these reasons.
First, the section imposes a duty on the employer. It would be otiose to
require that the employer had a duty and then separately oblige him to
discharge it. The word “duty” is simple enough.
48.
Second, it seems to us in context that “to have to” is directed towards
the necessity for the adjustment. To say that it must be necessary does not
mean to say that an employer can argue that he had no duty to make a postulated
adjustment by pointing to the fact that there might be another adjustment which
would have the same effect, thus demonstrating that the postulated one was not
“necessary”, and thus it was not obligatory for the employer to make it: the
emphasis of the section is upon achieving a result, that is, achieving an
adjustment which prevents either the PCP, or the feature of the premises, or the
mixture of the two which is raised in the claim, having the effect which is so
damaging to the disabled person - that is putting him at a substantial
disadvantage in comparison with person who are not disabled. But nonetheless
the phrase does emphasise that the focus of a Tribunal is not upon steps which
might be desirable in some general sense, but upon those which are necessary as
steps towards a particular end.
49.
As to Mr Basu’s other submissions, he argues that what was said at
paragraph 146 set out a number of complaints about the way in which the police
had dealt with the Claimant. This, he said, was irrelevant to the question
which was being considered, that is, one of reasonable adjustment. For that
purpose he relied upon a judgment of this Tribunal in Royal Bank of Scotland v Ashton [2011] ICR 632, which drew attention to the fact that
the Act where it speaks of making adjustments is concerned with outcome and not
with the process by which the outcome is reached. He refers in particular to
paragraph 22 of that decision, though in our view paragraph 24 better sums up
the point:
“24. So far as reasonable adjustment is concerned, the focus of
the Tribunal is […] an objective one. The focus is upon the practical result
of the measures which can be taken. It is not - and it is an error - for the
focus to be upon the process of reasoning by which a possible adjustment was
considered. As the cases indicate, and as a careful reading of the statute
would show, it is irrelevant to consider the employer’s thought processes or
other processes leading to the making or failure to make a reasonable
adjustment. It is an adjustment which objectively is reasonable, not one for
the making of which, or the failure to make which, the employer had (or did not
have) good reasons.”
50.
Mr Scott, in his skeleton argument, related this part of the
discussion to the potential consideration by the Tribunal of the reversal of
the burden of proof, which we cannot accept, given that at paragraph 146 of its
discussion that was not an issue before the Tribunal. It was here considering
the question, and explicitly considering the question, of reasonable
adjustment.
51.
Nor does the Tribunal deal with whether the adjustment was or was not
reasonable in any other sense. But in the context here of this case, as
distinct from the case before the Tribunal in Ashton, we do not
think that the Tribunal was resting its decision upon what it said at paragraph
146. The Tribunal’s decision generally is discursive. It was making
observations which, in our view, were not of relevance to its ultimate
conclusion, but which do not, in our view, demonstrate that that conclusion was
necessarily in error of law.
52.
As to Mr Basu’s argument that the wording of the Tribunal indicated
an error where it said “the failure of the Respondent to consider remote
working […] represents a failure to make that reasonable adjustment” because what
the Tribunal there identified was not a failure to provide home working,
but a failure to consider providing it, we say this. In viewing an
Employment Tribunal decision, the whole of it must be taken into account.
Words must be read in context. A decision such as the present is not, and is
not meant to be, the product of elaborate and careful draughtsmanship. When
taken as a whole it conveys to us, and we consider would convey clearly to the
parties, that what the Tribunal had in mind was that the failure to make a
reasonable adjustment was not centrally the failure to think about it, but the
failure to make it (or at least provide it, in the sense of making it
available, since the Claimant did not return to work because the adjustment was
not there for him to take advantage of). It is sometimes appropriate to take
sentences in isolation, where it is clear that they encapsulate what the
Tribunal has to say about an issue. This is not one of those cases.
53.
Mr Scott, in his argument, had to meet the difficulty that the
Tribunal here did not, as Mr Basu (in our view, rightly) identified, set
out what it was about the disability of the Claimant which gave rise to the
problems or effects which put him at the substantial disadvantage identified. There
may be many cases in which it is obvious what the nature of the substantial
disadvantage is, and why someone with the disability in question would
inevitably suffer it. It is not difficult to think of examples, such as that
of a man who has one arm, who is plainly at a significant disadvantage caused
by his lack of two handedness: there are many others. But there are also
cases, of which this is one, in which in our view simply to identify a
disability as being a general condition - such as “a knee condition” - does not
enable any party, and more particularly a court of review, to identify the
process of reasoning which leads from that to the identification of a
substantial disadvantage, and an adjustment which it is reasonable to have to make
to avoid that disadvantage. The conclusion remains unexplained by any description
of what it is that the Claimant can and cannot do in consequence of his
disability, and there is therefore no information as to the nature of any step
or steps which might be taken in order to prevent that particular
disadvantage. The words of Rowan are clear and correct. They may however insufficiently
emphasise the need to show, or to understand, what it is about a disability
that gives rise to the substantial disadvantage, and therefore what it is that
requires to be remedied by adjustment. Without knowing that, no
assessment of what is, or is not, reasonable by way of adjustment can properly
be made.
54.
Mr Scott’s answer, as we have recited, was to argue that the
Tribunal were implicitly adopting the Claimant’s own complaint, as he put it,
in his letter of 17 October 2007. We have indicated we cannot accept
that argument. The Tribunal might have been adopting it, but it did not say
so. It is not obvious it was. It is unnecessary in our view to turn to the
other arguments which Mr Basu has made. We consider that upon the central
argument, he has demonstrated that the Tribunal has failed to show that it has
grappled properly with the issue.
55.
Mr Scott argues that the appeal is effectively an argument that the
decision of the Tribunal was perverse. We cannot accept that any question of
perversity arises here. A conclusion that a decision was perverse could be
reached only if we were confident that we were in possession of sufficient
findings of fact by a Tribunal to reach the view that the conclusion was simply
wholly impermissible. To that extent, we accept that if the central argument
had been perversity, it could not have succeeded: but that does not meet the
principal ground of the appeal.
56.
Where the Tribunal has not set out what its conclusions are, upon
information which was or probably was before it, we cannot be satisfied that it
would necessarily have reached either the same conclusion or some other
conclusion. It would seem to us to be open to a Tribunal to come to the
conclusion that this Tribunal did, providing it was properly reasoned. But we
do have in mind what was said in the case of Meek v City of Birmingham District Council [1987] IRLR 250, in the well-known dicta of
Bingham LJ, at paragraph 8:
“8. It has on a number of occasions been made plain that the
decision of an Industrial Tribunal is not required to be an elaborate formalistic
product to refine legal draughtsmanship, but it must contain an outline of the
story which is given rise to the complaint and a summary of the Tribunal’s
basic factual conclusions, and a statement of the reasons which have led them
to reach the conclusion which they do on those basic facts. The parties are
entitled to be told why they have won or lost. There should be sufficient
account of the facts and of the reasoning to enable the appeal Tribunal or, on
further appeal, this court to see whether any question of law arises, and it is
highly desirable that the decision of an Industrial Tribunal should give
guidance both to employers and trade unions as to practices which should or
should not be adopted.”
57.
As was added by Lord Phillips in English v Emery Reimbold &
Strick Ltd [2002] IRLR 2409:
“The issues, the resolution of which were vital to the judge’s
conclusion should be identified, and the manner in which he resolved them,
explained […] It need not involve a lengthy Judgment. It does require the
judge to identify and record those matters which were critical to his decision.”
58.
We cannot accept the submission made by Mr Scott, that because the
case of Meek was not identified as such in the grounds of appeal,
Mr Basu is not entitled to argue that the Tribunal here have not
adequately set out their reasoning. The “reasons” challenge is, in any event,
implicit in his submission that the Tribunal simply assumed that the adjustment
was, in the circumstances, reasonable.
Conclusions as to liability
59.
It follows, by way of conclusion, that in this case the Tribunal, though
it carefully dealt with many of the issues before it and made unassailable
conclusions as to direct discrimination and victimisation, did in our view
commit an error of law in its approach to the question of reasonable
adjustment. That error was a failure to set out why and on what basis the
adjustment of remote working (whatever precisely that might have meant) would
or might have had the effect of preventing the provision, criterion or
practice, that is the requirement to work at a site in the West Midlands (or some
feature of the premises, which is not apparently relied on here, though we
cannot be absolutely sure there was no relevant feature of the premises) having
the effect of putting the Claimant at a substantial disadvantage in comparison
with those who were not disabled.
60.
On the appeal, therefore, as to liability, we have concluded that the
appeal must be allowed. Rejecting as we do the argument that the decision was
perverse, we have concluded that the appeal must be remitted to a Tribunal for
determination. That remission will deal only with the question of whether home
working, or a mixture of home and office working, was a reasonable adjustment,
given the particular disability of the Claimant and the substantial
disadvantage caused by that disability, such that the police force was under a
duty to ensure that that reasonable adjustment had to be made for the Claimant for
when he was able to return to work.
61.
No other issue, of the several which were canvassed in the hearing
before the Employment Tribunal, seems to us to be open for further argument.
Those aspects of the Employment Tribunal decision, which have not been
challenged on this appeal, stand.
The remedy appeal
62.
The remedy appeal, therefore, becomes academic and anything we have to
say about this part of the case is necessarily obiter. However for two reasons
we have acceded to the request of the parties that we rule on the appeal. The
first is that it indicates to any appeal court, which may consider this
Judgment, what our views have been and, secondly, it may assist the parties to
know our views because ultimately, if the Claimant should succeed on remission
and succeed to the same extent as he did before the present Tribunal, the
parties may then be better able to avoid by agreement what would otherwise be
an expensive remedies hearing.
63.
The problem which arises is in respect of the calculation of pension.
There is no challenge to the decision on the remedies hearing except in respect
of an order that the police should pay the Claimant the sum of £33,662.70 in
compensation for loss of pension. That sum was a sum agreed between counsel,
but it was agreed upon a basis which is in dispute. If the Tribunal was
entitled to adopt the basis which it indicated to the parties and upon which
they calculated that sum, then the appeal fails. If it was not so entitled and
was in error of law in taking that approach, then the appeal succeeds.
64.
The Tribunal on 17 August recorded that the Claimant had a final
salary scheme with the police, accepted that he would not find further
employment with an equivalent final salary scheme, and acknowledged that the
Claimant accepted that he must give credit for the pension he was already
receiving from the police.
65.
The Claimant was born on 23 November 1960. He is thus, though
50, now very close to the age of 51. He was a little over 48 when he left the
force. He would otherwise have retired at the age of 60.
66.
The Tribunal recorded at paragraph 9 that the argument of Mr Basu
was that the police had no quarrel with the Tribunal adopting, as it proposed
to do, the “substantial approach” to pension loss calculation, as identified in
the booklet headed “Compensation for Loss of Pension Rights Employment
Tribunals: Third Edition” prepared in 2003 by a committee including the Government
Actuary and experienced Chairmen of Employment Tribunals, published by the Treasury
Solicitors (which we shall call the “2003 booklet”).
67.
That booklet identifies two approaches to pension loss which are termed
a “simplified approach” and the “substantial loss approach”. The booklet does
not deal with the methods of calculation habitually used in the civil courts in
claims of tort. The method of calculation used in such claims, such as
personal injury claims, is sometimes referred to as an Auty calculation, that being a
reference to the case of Auty v National Coal Board [1985] 1 WLR 784. Sometimes it is referred to as the
“Ogden” approach, the approach being similar to that adopted in Auty
but by reference to actuarial tables appended to a publication most
recently headed “Actuarial Tables with Explanatory Notes for use in Personal
Injury and Fatal Accident Cases prepared by a Multi-Disciplinary Working Party
of Actuaries, Lawyers, Accountants and other Interested Parties: Sixth Edition”
(the seventh is pending) and again published by the Treasury Solicitors’
Office, known as “The Ogden Tables” in respect for Sir Michael Ogden QC who
chaired the working party which produced the first few editions of the tables..
The edition before the Tribunal was the 2007 (sixth) edition.
68.
Here, the Claimant’s position was that the Tribunal, having concluded
that the substantial approach should be adopted, should then adopt the relevant
tables attached to the 2003 booklet. It should apply the appropriate multipliers
from those tables and award the Claimant the resulting figures. The
Respondent’s approach was that the Tribunal should not use the tables annexed
to those guidelines, but should instead adopt the tables which came from the Ogden
Tables, sixth edition. The difference is said to us to amount to some £44,000
in favour of the police, if one were to adopt that latter course.
69.
The Tribunal noted that the parties had agreed a lot of the relevant
figures and noted that the amount to be awarded depended upon its decision as
to which set of tables it should adopt. The Tribunal had before it the report
of John Frenkel FCA, which was specifically compiled upon the substantial loss
basis using the multipliers and figures coming from the appendices in the 2003
booklet.
70.
The Tribunal were referred to some case law, and identified other cases,
but all were cases of unfair dismissal. That may be important because, so far
as unfair dismissal claims are concerned, calculation of compensation is governed
by s.123 of the Employment Rights Act 1996:
“123
[…] The amount of the compensatory award shall be such amount as
the Tribunal considers just and equitable in all the circumstances having
regard to the loss sustained by the complainant in consequence of the dismissal
in so far as that loss is attributable to action taken by the employer.”
71.
Under the Disability Discrimination Act, however, the
starting point is that at s.17A(2), headed “Enforcement Remedies and
Procedure”:
"17A
(2) Where an employment tribunal finds that a complaint
presented to it under this section is well-founded, it shall take such of the
following steps as it considers just and equitable -
(b) ordering the respondent to pay
compensation to the complainant;
(3) Where a tribunal orders compensation under subsection
(2)(b), the amount of the compensation shall be calculated by applying the
principles applicable to the calculation of damages in claims in tort
[...]"
What is “just and equitable” here relates not to the calculation
of compensation, as it does under s.123, but to the preliminary decision as to
whether to award any compensation at all. Once that threshold question is
answered positively, calculation is as in a case of tort before the civil
courts. The approach in tort is to assess that sum which represents full and
fair compensation for the loss which the tort has caused the Claimant.
72.
It is common ground before us that the authorities, in respect of unfair
dismissal cases, provide for the Tribunal to make a choice as to whether it
should adopt the simplified or the substantial approach. It will not
necessarily be in error should it adopt one, rather than the other, though see
the case of Sibbit v Governing Body of St Cuthbert’s Catholic Primary
School [2010] UKEAT/70/10, 20 May 2010, a decision of this
Tribunal presided over by HHJ McMullen QC, in which it was regarded
as an error of law for the Tribunal to adopt the simplified approach where it
was clear that the substantial loss approach ought to have been adopted on the
facts. Otherwise the cases make it plain that the Tribunal has a choice.
73.
The parties identified for us in respect of tort the case of the Ministry of Defence v Hunt
[1996] ICR 554. The Tribunal itself raised with the parties that of Ministry of Defence v Mutton
[1996] ICR 590. The report at [1996] ICR 554 not only covers the appeal of Hunt,
but also an appeal in the case of one Wheeler, which was linked
with the appeal of Hunt, in which page 579, C to F was said to be
of assistance. In Mutton, the following passage may be of relevance
(605, C to F).
“(Counsel) submitted that the task for the
Industrial Tribunal was to award a sum which, when invested, would fully
compensate Mrs Mutton for the value of the pension rights she had lost.
The appropriate rate of return in investments, which she might reasonably
achieve, was a question of fact which the Tribunal properly determined on the
evidence before it. He submitted that the Tribunal was entitled to conclude
that a real rate of return of 4.5 per cent was unrealistic. The Tribunal took
into account Mrs Mutton’s loss of a completely secure index-linked pension
underwritten by the government, and the fact that Mr Ballantyne was unable
to point to any investment which would yield a real rate of return of 4.5 per
cent. He further observed that the rate of return adopted by the Industrial
Tribunal (3.5 per cent) was in fact higher than the net rate of return
index-linked on Gilts, which was only 3 per cent. He described the Tribunal’s
approach as involving careful reasoning and a conclusion which was neither
perverse nor wrong in law.”
74.
The Tribunal, chaired by Mr Justice Maurice Kay as he was, considered that
those submissions were well founded. The Tribunal had been entitled to take an
approach open to it on the evidence.
75.
The upshot of those authorities is summarised in the submissions before
us as being that, as Mr Scott would put it, the Tribunal is entitled to
adopt the simplified approach where appropriate. Here it was entitled to adopt
the substantial loss approach, or it could have adopted the approach used in
personal injury cases known as the Ogden approach or the Auty
approach. Or for that matter it would not be an error of law for the Tribunal
to adopt a bespoke approach, as in Mutton. What it could not do,
he submitted, was “pick and mix”; take aspects of one approach and annex them
to aspects of another approach. That is what he submits the Tribunal did here.
The Tribunal, having set out the nature of the disagreement upon which it had
to rule, had said explicitly that there was agreement between the parties that
the substantial approach was the correct approach. It should have adopted it.
76.
What guidance can be gleaned from the 2003 booklet itself concerning the
use of appropriate tables? Clearly, when the 2003 edition was published the
authors required that the tables annexed be used. However, the authors refer
in paragraph 4.8 to the Ogden tables being prepared by the government’s actuary
department, to enable courts to convert a total loss of employment continuing
to retirement into a lump sum. The authors continue:
“In a case where Ogden tables were being used to assess future
loss of earnings, there is a clear need for a comparable approach to pensions
using similar assumptions.”
77.
In explaining their approach the authors say this:
“The substantial loss of approach …. uses actuarial tables
comparable to the Ogden tables to assess the current capitalised value of the
pension rights which would accrue up to retirement.”
78.
And in paragraph 8, the booklet said:
“The loss of pension rights can be calculated using factors
similar to those available in the Ogden tables for personal injury and fatal
accident cases.”
79.
The Tribunal drew attention to the fact that some of the financial
assumptions which underlay the 2003 booklet appeared to it to be out of date.
They included the assumption that money could be invested to earn an average of
6.5 per cent per year. It went on in its conclusions to say this:
“20. It would have much easier [sic] for this Tribunal had the
authors of the booklet chosen to adopt the then Ogden tables which the Tribunal
is told would have been edition 4 and indicated that subsequent editions could
then be adopted when appropriate. Instead, the government actuary prepared
tables which were similar to but did not mirror the then Ogden tables and the
difficulty which this Tribunal faces is that the book that was published at a
time of economic plenty, when they are being applied at time of the economic penury.
The tables in the booklet no longer reflect the economic realities.
21. The Tribunal is required to compensate the Claimant on just
and equitable principles, but the difficulty is that to award compensation
based on financial assumptions which are no longer correct would not be fair.
The most up-to-date tables available are the sixth edition Ogden tables and the
Tribunal would only have refrained from adopting those had it been required by
higher authority so to do. In fact, the balance of the authorities appears to
favour the Tribunal using the Ogden tables where to use the guidelines would
produce an inequitable result.
22. It follows that the Tribunal has decided to adopt the
appropriate Ogden table in calculating pension loss. This is table 19 and the
multiplier to be used is 13.54 for calculating both A and B of the substantial
loss calculation, where
A = the value of prospective final pension rights up to normal
retirement age in former employment if the Claimant had not been dismissed and
B = value of accrued final salary pension rights to date of
dismissal from former employment.”
80.
The reasoning was thus that the current edition of the Ogden tables
represented a more up-to-date reflection of the economic realities, and that
times economically had changed since 2003. The consequence, as it has been
explained to us by counsel, is that although the Tribunal did not perhaps
realise it was doing so, it in fact adopted a calculation which was
indistinguishable from the calculation which would be performed using the Ogden tables. That is because it took the amount of the pension loss annually from age
60, multiplied that by the Ogden multiplier, and deducted a sum to represent
the amount paid to date for which the Claimant had accepted he would pay credit.
81.
By their Judgment the Tribunal showed that it did not necessarily
understand that was the practical effect of what it was doing. We have to ask
whether the Tribunal here was in error of law in its approach; whether it was,
in the words of Mr Scott, entitled to “pick and mix” for the reasons which
it did.
82.
We note that in Bingham v Holborn Engineering Ltd [1992] IRLR 298, Knox J stated, at page 300, in
reference to an earlier edition of a booklet designed for the same purpose as
the 2003 booklet, as follows:
“The booklet is indeed a valuable guide to Industrial Tribunals
who frequently are faced with the invidious task of grappling with what are
difficult and complex questions, raising problems of actuarial calculations
without the benefit of actuarial evidence. In those circumstances it is indeed
very helpful to Industrial Tribunals to have some actuarial guidance,
necessarily of a generalised and therefore somewhat rough and ready form, to
guide them through the thickets, without having an actuary as a witness to
guide them through. But there is no doubt that the booklet is not a bible
which has to be followed in every detail. Indeed, the booklet itself takes
pains to point out that this is indeed so, and recognises that it is not an
infallible guide […] In this case it is in our view abundantly clear that in
relation to this particular case the actuarial assumptions which are set out in
[…] the booklet, were in fact in several important respects shown to be
inaccurate. That of course is not a criticism of the booklet, which […] has
necessarily to be generalised.”
83.
That reasoning was expressly adopted in the Mutton case to
which we have referred. It relates of course to a booklet which preceded the
2003 booklet, but it does assist. A Tribunal is not as it seems to us bound as
a matter of law to adopt the methodology set out in either the Ogden approach or, more particularly, the substantial or simplified approach from the 2003
booklet.
84.
If it does depart from such an approach, however, it must do so for good
reason and must say what its reasons are. Any such reasons require to be
cogent and intelligible and appropriate. A Tribunal will only ever stray from
such recognised approaches for such carefully articulated good reasons, and will
do so at potential peril to the acceptability of its decision. It is not a
course which we would recommend, except where it is plain that the interests of
justice require it.
85.
But, here, the Tribunal did set out reasons for adopting what was, in
practice, the Ogden approach. That was simply that economic times had changed,
and those tables better reflected modern economic reality.
86.
We spent much of the time in the discussion of the case in examining and
identifying why it should be that there was such a difference in result,
applying the substantial loss approach on the one hand as against the tort
personal injury approach on the other. It seems to be that the only difference
is in the multipliers used. The substantial loss approach based on the 2003
Booklet seems to us to adopt multipliers which allow for the continuing
enhancement of earnings, upon which final salary schemes are based to the age
of retirement, after the date of dismissal or leaving. That is on the
assumption that wages outstrip prices. The Ogden approach does not.
87.
Although the Tribunal did not say in terms that it had in mind that that
was an assumption underlying the difference in multiplier, its wording
reflecting the contrast between economic plenty when the booklet was written
and application at a time of economic penury makes exactly that point.
Economic circumstances have changed.
88.
That is demonstrated again by the Tribunal’s view that the tables were
based upon, in part, the ability of invested money to earn a return of 6.5 per
cent a year at least, gross, which in its view no longer applied.
89.
Given that there was, in our view, articulated, cogent and good reasons
for this Tribunal to choose to depart from the substantial approach, by
adopting actuarial tables from Ogden in substitution for those in the 2003 booklet,
we cannot see that it was an error of law for the Tribunal to do as it did.
90.
If it had been suggested that it was an error of law, and if we had so
found, we would have nonetheless to determine whether the decision of the
Tribunal was plainly and obviously right. As we have said, a result of what
they did, though perhaps unknowingly, was that the Tribunal adopted the Auty
calculation. It would not be wrong to do so. It could not therefore be said
that the result to which it came was necessarily wrong.
91.
This is not to say, we hasten to add, that Tribunals must in modern
economic circumstances adopt the approach urged by the Ogden working party. A
Tribunal is entitled to address the question of what is full and fair
compensation such as would be awarded in a claim in tort in a way which
properly answers that question. Whatever the precise methodology will be, a
Tribunal will find very considerable assistance from the 2003 booklet. That is
what it is designed for. It may find also such assistance from personal injury
case law. It is ill advised to “pick and mix”: but in this particular case, on
its own particular facts, and without (we emphasise) laying down any guidelines
more generally (because we do not feel that the argument before us, in particular
lacking as it does any detailed help from actuarial expert evidence, allows us
to lay down any specific guidelines for Tribunals to follow) we hold the
Tribunal was entitled to take the approach it did.
92.
It follows that for those reasons, we would not have thought that there
is any merit in the remedies appeal, independently of the result of the liability
appeal.
93.
It follows, in the event, that the only outstanding issue is whether we
should remit the case on liability on the limited ground that still remains to
the same or to a fresh Tribunal.
94.
We have had regard to the principles expressed in Sinclair Roche & Temperley v Heard [2004] IRLR 763. It is unnecessary to set them out
as a checklist, but we have come to the conclusion in this case that the matter
should be remitted to a fresh Tribunal. There are two principal reasons for
this.
95.
The first is that, although we have every confidence in the balance and
professionalism of the Tribunal, it can be particularly difficult when the
Tribunal has indicated a finding not to be influenced one way or the other by
that finding, and we think there is, given all the circumstances, such a risk
here.
96.
Secondly, we are impressed by the point made by Mr Basu that as a
matter of simple practical convenience, it is always likely to be easier to
arrange a Tribunal of three people to deal with a matter which needs to be
heard as soon as possible because of the age of the case, rather than
reassemble a Tribunal which has been together in the past, and that it cannot be
assembled in part.
97.
We do not think this will give rise to any corresponding practical
disadvantage because of the relatively limited nature of the inquiry upon which
the Tribunal will be engaged and the findings of fact which are undisturbed
from the first Tribunal which will inform their discussion.
