United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2011/0523_10_1104.html
Cite as: [2011] UKEAT 0523_10_1104, [2011] UKEAT 523_10_1104

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Appeal No. UKEAT/0523/10/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 April 2011

Before

HIS HONOUR JUDGE RICHARDSON

MR D BLEIMAN

MR I EZEKIEL

MR H STOYLE APPELLANT

THE ARTFUL GROUP LTD T/A ART GROUP – IN ADMINISTRATION

(DEBARRED) RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant

MISS KARA LORAINE

(of Counsel)

Instructed by:

Messrs Abel-Brown Solicitors

18a Orange Street

Uppingham

Rutland

LE15 9SQ

For the Respondent

Debarred

SUMMARY

DISABILITY DISCRIMINATION

UNFAIR DISMISSAL – Constructive dismissal

Disability discrimination. On the question of reasonable adjustments, the Tribunal mis-stated the law and failed to deal with the essential issues. The Tribunal failed to address claims of direct disability discrimination and disability related discrimination.

Constructive dismissal. The Tribunal’s conclusions on this issue are vitiated by its failure to deal with the disability discrimination issue properly and by a further failure to deal with a significant part of the Claimant’s case.

HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Mr Harry Stoyle (“the Claimant”) against a judgment of the Employment Tribunal (Employment Judge Willans presiding) dated 6 October 2010. By its judgment the Tribunal dismissed all the claims which Mr Stoyle had brought against his former employers the Art Group Ltd (“the Respondent”).

2. The Claimant was employed by the Respondent as a warehouse operator from 1 May 2004 until his resignation on 30 July 2009. He suffered an angina attack in November 2008. It was common ground, by the time of the Tribunal hearing, that he was thereafter disabled for the purpose of the Disability Discrimination Act 1995.

The Claimant’s case

3. The Claimant’s case may be summarised as follows. He says that from approximately September 2007 until the end of November 2008 he was continually criticised, picked on and bullied by a manager. Due to his complaints he was given an unjustified final warning. When the final warning was overturned on appeal he was moved to a different department, which was unfair. Shortly afterwards he had his angina attack. Although the Respondent provided him with light work until February 2009, it could and should have continued to give him light work thereafter. Although he was not fit for heavy work he remained fit for light work except for a short period after surgery in April 2009. The Respondent could have provided him with light work: for example, there was light work available, including work done by agency staff, a job as a yardsman and outwork. By reason of these matters he resigned on 30 July 2009.

4. The Claimant’s case was fully set out in his claim form and in a witness statement. His counsel prepared a list of issues for the Tribunal. In summary he made the following complaints.

(1) Constructive dismissal. He relied on the bullying by his former manager, the unfair transfer to a different department and the failure to provide him with light work despite the availability of such work.

(2) Disability discrimination. He said that the failure to provide him with light duties amounted to direct disability discrimination or disability related discrimination. He further said that the Respondent’s failure to provide him with light duties amounted to a failure to make reasonable adjustments.

The Respondent’s case

5. The Respondent’s case may be summarised as follows. While the Respondent accepted that a final written warning given by the manager had been successful, it denied that there had been any bullying. It asserted that the transfer to a different department was with the full agreement of the Claimant. It accepted that light duties had been provided for the Claimant until February; it said that light duties were not available after that date by reason of a move to different premises and a diminution in the availability of light duties. It denied the claims of disability discrimination and raised a time limit point. It denied that the Clamant was entitled to resign, and suggested that he had affirmed the contract.

The Tribunal hearing and reasons

6. By the time of the hearing the Respondent was in administration. The administrators specifically consented to the continuation of the proceedings, but the Respondent took no active part in the hearing.

7. The Tribunal knew a good deal about the Respondent’s case. In addition to the response, which we have summarised, there had been an exchange of correspondence at the time of the Claimant’s resignation. The Respondent answered the Claimant’s letter of resignation dated 30 July 2009 with a letter dated 3 September. The Tribunal quoted this letter at length. The Tribunal also had a bundle of documents. There was, of course, a witness statement from the Claimant, and he gave evidence, although we are told the Tribunal asked only a few questions.

8. The Tribunal had the considerable benefit of a list of issues prepared by counsel for the Claimant. This list of issues is a model of its kind, containing just the right level of detail for such a list. It plainly stated the claims for constructive dismissal, direct disability discrimination and disability related discrimination. In respect of the claim for failure to make reasonable adjustments, it set out the PCPs, the substantial disadvantage and the case as regards reasonable adjustment. In each section it set out the Respondent’s defence.

9. However, the Tribunal made no reference to this list. The Tribunal’s summary of the issues reads as follows:

“2 The issues

(i) The claim for constructive dismissal was based primarily on the alleged breach of the implied term of mutual trust and confidence which rested on allegations by the Claimant that:-

a. The Respondent’s had withdrawn him from a job that the Claimant had carried out and transferred him to a more strenuous job;

b. The Respondent’s alleged ongoing failure to make further reasonable adjustments to meet his medical difficulties.

c. The bullying of his Line Manager, Mr Billing;

d. The Companies failure to make reasonable adjustments in the light of his known disability.

(ii) With regard to the claim for disability discrimination this essentially related to the alleged failure on the part of the Respondent’s to make reasonable adjustments and the allied claim of direct discrimination again related and arose out of the companies failure to make reasonable adjustments.

(iii) The Claimant was arguing that the Respondent’s had given the Claimant a job which revolved around light duties which was entirely reasonable, but that the job was withdrawn before the Respondent’s moved to a different site. The Claimant argued that this was because they didn’t want to employ the Claimant at the new site because of his disability.”

10. The Tribunal’s reasons then contain a section entitled “the facts”. This section runs to five pages. It includes the lengthy quotation from the Respondent’s letter which we have already mentioned. It refers to and comments on emails in the bundle which was before it. However, this section of the Tribunal’s reasons contains virtually no findings of fact.

11. The Tribunal turned to set out the law which it was applying. The law relating to constructive dismissal was summarised. The Tribunal then continued:

“9. (ii) The duty to make reasonable adjustments which is contained in section 6 of the Disability Discrimination Act requires employers to take positive action to remove certain disadvantages to disabled people posed by the employer’s working practices such as work duties. The duty arises when the working arrangements place the disabled person concerned at a substantial disadvantage.

The duty to make adjustments does not arise if the employer does not know and could reasonably be expected to know that a person has a disability. Even where an employer knows that an employee has a disability, the burden upon him is to make reasonable enquiries based on the information given to them.”

12. The Tribunal then set out its conclusions. The conclusions do not have paragraph numbers. We have added them.

“10. Conclusions

10.1 The Tribunal reminded itself that the test applicable in terms of the claim for constructive unfair dismissal was a contractual one, namely had the company by its actions indicated that he did not intend to be bound by the Contract of Employment including of course the implied term of mutual trust and confidence. It was not argued by the Claimant that there had been a breach of an express term and on the evidence none was apparent.

10.2 On the evidence before it the Tribunal was satisfied that there was nothing to indicate that there had been a breach of the implied term of mutual trust and confidence. The company had maintained its duty of care towards the Claimant up to the time when the Claimant suddenly for his own reasons decided to resign.

10.3 On the papers before the Tribunal it was apparent that attempts were ongoing in terms of efforts to find the Claimant light duties within the firm and there was nothing to suggest that they had ceased in the very few days that had elapsed between the last communication between the Respondent’s about that and the Claimant deciding to resign. There cannot therefore in the view of the Tribunal be any reason for the Claimant’s faith in the mutual term of trust and confidence having been broken at the point that he submitted his letter of resignation. In those circumstances, the claim for constructive unfair dismissal must fail. The event that seems to have prompted the resignation was the cessation of SSP Payments.

10.4 With regard to the claim for disability discrimination which related essentially to the suggestion that the company had failed to make reasonable adjustments, again that claim in the view of the Tribunal must fail on the facts.

10.5 It was apparent from the email correspondence in the bundle, that light duties had been made available for the Claimant for as long as was practicable in relation to his health, prior to having his heart operation in February 2009 and that thereafter efforts were being made and appeared to be ongoing at the time he submitted his resignation, to seek out the availability of light duties for him.

10.6 It was apparent from the papers in the bundle that there was contradictory medical evidence before the Respondent’s about the Claimant’s ability to return to work after his operation. In part it suggested that he was not fit at that stage to return to work whereas in his view he was fully fit to do so. Another element was that in view of the Occupational Health Consultant used by the Respondents he was not to be regarded as disabled for the purposes of the DDA. Occupational health were of the view that the Claimant was fit to carry out light duties, but his own GP continued to sign him off work as unfit. The evidence before the employer was to an extent contradictory and confusing but nonetheless the Respondents were actively making enquiries within their organisation from time to time to see what light duties might be available.

10.7 The Claimant did not at any stage go to see them and insist upon some arrangement being made to provide him with light duties, given the nature of his medical condition. Had he done so, then if he really was fit enough to carry them out there would have been a duty on the Respondent’s to make reasonable adjustments. In fact what the Claimant chose to was to resign, whilst the Respondents were still in the process of looking for suitable alternative duties and had not indicated to him at any point that they had ceased to do so.

10.8 What seems to the Tribunal to have prompted the resignation was the cessation of the Statutory Sick Payments that the Claimant had been receiving up until a week or two prior to him submitting his resignation, rather than any action, or lack of action on the part of the Respondents.

10.9 In all the circumstances, therefore, the Tribunal are not satisfied that the Claimant has established on a balance of probabilities that the Respondents had failed to make reasonable adjustments and therefore that claim also fails.”

The appeal

13. The Notice of Appeal and the Orders of the Appeal Tribunal have been duly served, but neither the Respondent nor the Administrators have taken any part in the appeal. Indeed the Respondent has been debarred from appealing by reason of its failure to file an answer.

14. It certainly does not follow, because a Respondent does not appear, that an appeal will be successful, wholly or in part. There is an appeal to the Appeal Tribunal only on a question of law. Thus, in this case, the Claimant must establish to our satisfaction that the Tribunal erred in law.

15. Nor does it follow, because a Respondent did not appear at the Tribunal hearing, that the Tribunal was bound to find in favour of the Claimant’s case. The Tribunal was entitled to scrutinise the evidence led by the Claimant to see if the Claimant’s case was made out. The Tribunal was not bound to accept the Claimant’s evidence, so long as it put to him and to his representative the points which caused it concern, and thereby gave the Claimant a fair chance to deal with those points.

16. However in this case, for reasons which are substantially those upon which the Claimant’s counsel relies in her submissions, we are entirely satisfied that the Tribunal erred in law and that its judgment must be set aside.

17. We will begin with the claims under the Disability Discrimination Act 1995.

18. The Tribunal has identified and applied the wrong legal provisions. The duty to make reasonable adjustments arises under section 4A of the Disability Discrimination Act 1995. The Tribunal’s reference to section 6 of the 1995 Act is to a form of the legislation which was significantly different and which ceased to be applicable in 2004.

19. The Tribunal has not applied its mind to the questions which it was required to answer in order to apply section 4Aof the 1995 Act, as supplemented by section 18B. It seems to have accepted the Claimant’s case that the Respondent applied a provision or practice (requiring heavy duties) which placed him at a substantial disadvantage. The Tribunal therefore had to consider whether the Respondent complied with the duty imposed; and in particular whether there were steps which it was reasonable for it to have to take to prevent this provision from having that effect. On this question the Claimant identified in his statement certain specific kinds of work which he said were available: a position as a yardsman; work being undertaken by agency workers; and outwork. The Tribunal has not addressed these matters at all. It has not given any consideration to the question whether the burden of proof had shifted to the Respondent: see section 17A(1C) of the 1995 Act and Project Management v Latif [2007] IRLR 579.

20. The Tribunal summarised the employer’s duty as being “to make reasonable enquiries based on the information given to them”. This is an impermissible dilution of the statutory duty, which is a duty to take such steps as it was reasonable for the employer to have to take to prevent the identified disadvantage.

21. The Tribunal appears to hold that the Respondent’s duty to make reasonable adjustments would only arise if the Claimant went to see them to “insist on some arrangement being made to provide him with light duties” (paragraph 10.7). This is a fundamental misconception of the Respondent’s duty, for which there is no warrant in the Disability Discrimination Act 1995. We might add that, from such material as we have seen, it appears plain that the Respondent knew the Claimant wished to have light work.

22. Accordingly on the question of reasonable adjustments the Tribunal has mis-stated the law, mis-applied the law and failed to make the necessary findings to address the Claimant’s case.

23. The Tribunal has altogether failed to address the question whether there was direct disability discrimination or disability-related discrimination. These causes of action are no doubt closely linked with the question whether the Claimant ought to have been given light work, but they are distinct causes of action to which some attention ought to have been given.

24. Paragraph 10.5 appears to be based on a factual misconception. The Tribunal said that “light duties had been made available for the Claimant for as long as was practicable in relation to his health, prior to having his heart operation in February 2009.” His operation was not in February 2009: it was 2 months later. It was not the Respondent’s case that it made light duties available for as long as was practicable in relation to the Claimant’s health. The Claimant was fit for light duties until his operation. On the Respondent’s own case light duties were stopped because of a move to different premises. The conclusion in paragraph 10.5 is perverse and cannot stand.

25. The Tribunal’s failure to deal properly with the issues raised by the Disability Discrimination Act inevitably has an impact on its consideration of the constructive dismissal claim. It was a key part of the Claimant’s case that the Respondent did not fulfil its duty to him under the Disability Discrimination Act. Other aspects of the Claimant’s case on constructive dismissal (the alleged bullying and unfair transfer) are not the subject of any findings at all. The Tribunal’s comment that “what seems to have prompted the resignation” was the cessation of statutory sick pay rather than any action or inaction of the Respondent would only be tenable if the Tribunal rejected the Claimant’s evidence as untrue and his letter dated 30 July as dishonest: there is no such finding. In any event the true test, on the basis of Meikle v Nottinghamshire County Council [2005] ICR 1, is whether the resignation was at least in part in response to the fundamental breach.

26. For these reasons the Tribunal’s judgment cannot stand. It will be set aside. As the Claimant submits, the correct course is to remit the matter for hearing before a freshly constituted Tribunal which will, if it finds in favour of the Claimant, also be able to deal at the same hearing with questions of remedy. As we discussed with counsel for the Claimant, we think that the Claimant would be wise to correspond further with the Administrators before such a hearing is listed.