United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0552/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 June 2011

Before

THE HONOURABLE MR JUSTICE KEITH

MS K BILGAN

MR I EZEKIEL

LEEDS TEACHING HOSPITAL NHS TRUST APPELLANT

MR P FOSTER RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

DISABILITY DISCRIMINATION – Reasonable adjustments

If there is a real prospect of an adjustment removing a disabled employee’s disadvantage, that would be sufficient to make the adjustment a reasonable one, but that does not mean that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one: Cumbria Probation Board v Collingwood (UKEAT/0079/08/JOJ) and Romec Ltd v Rudham (UKEAT/0069/07/DA) applied.

THE HONOURABLE MR JUSTICE KEITH

1.            The Claimant, Paul Foster, was employed by the Respondent, the Leeds Teaching Hospital NHS Trust (“the Trust”), for many years in various capacities, ending up as a senior security inspector in the Trust’s Security Department.  In 2006 his relationship with his line manager broke down, and from 18 October 2006 he was unable to work as a result of stress.  He never returned to work, and on 6 February 2009 he was dismissed on the ground that a doctor in Occupational Health could not predict the likelihood of his “situation” altering within the foreseeable future.  Indeed, Mr Foster himself accepted that he was not fit to return to work at that time.  Mr Foster’s complaints of disability discrimination and unfair dismissal were upheld by an Employment Tribunal following a hearing in Leeds, and the Trust now appeals against those findings.

2.            The relevant facts which the Tribunal found were that shortly after Mr Foster went on sick leave in October 2006, he raised a grievance alleging that he had been bullied and harassed by his line manager, Jim Merrick.  It took some time for the grievance to be determined, and in the meantime, Mr Foster was seen by Dr Thomas McGarry, a doctor in Occupational Health.  That was on 25 June 2007.  Dr McGarry confirmed that Mr Foster’s stress was the result of problems at work, and that Mr Foster’s return to work would not be possible until those problems had been resolved.  He advised that attempts should be made to resolve them as soon as possible, as Mr Foster’s ability to return to work would become less likely as time went on.  That prompted Mr Foster to express concern about the time it was taking to determine his grievance, but he was told by Bob Bilton, the Trust’s Deputy Head of Logistics, that his ill-health and his grievance were separate issues, and nothing was done to discuss, or otherwise address, the issues which were causing the stress which kept Mr Foster from work.

3.            That remained the case after Mr Foster’s grievance was dismissed.  He was told about that on 27 September 2007.  He was unhappy about that, but he did not take his grievance to the next level of the grievance procedure as he could have done, because he had been wrongly advised by his trade union representative that there was “no right of appeal”.  His concern over where the dismissal of his grievance left his relationship with Mr Merrick might not have mattered, because at a meeting on 8 January 2008 with Darryn Kerr, the Trust’s Director of Estates and Facilities, Mr Foster’s trade union representative had thought that Mr Kerr has reassured him that Mr Foster could be redeployed to another department within the Trust with equal status and salary where he would not be under the management of Mr Merrick.  Accordingly, when Mr Foster next saw Dr McGarry on 14 January 2008, he confirmed that he was ready to return to work.  Dr McGarry saw no medical bar to that, although he thought that Mr Foster might still be vulnerable to stress, and that it was possible that his symptoms might recur.

4.            Unfortunately, the promise of redeployment to a post outside the Security Department which Mr Foster’s trade union representative thought had been given by Mr Kerr did not materialise.  The Tribunal did not decide whether Mr Foster’s trade union representative had got the wrong end of the stick, or whether Mr Kerr had changed his mind, but in a letter dated 24 January 2008 to Mr Foster’s trade union representative, Mr Kerr was talking of Mr Foster returning to a role within the Security Department.  That was confirmed on 18 February 2008 when Mr Bilton told Mr Foster that his redeployment to a post outside the Security Department was not an option.  The only two options which Mr Foster was offered were either returning to the job he had had before he had gone on sick leave, or to a job in the control room which would also be within the Security Department at the appropriate banding for that job.  It was proposed that he would not be managed by Mr Merrick directly, even though Mr Merrick was ultimately responsible for the management of both posts, and to overcome that Mr Bilton proposed mediation between Mr Foster and Mr Merrick.

5.            Mr Foster told Mr Bilton that neither of these options were acceptable, but Mr Bilton’s position remained that redeployment to another department was not possible.  He confirmed that at a meeting a couple of weeks later on 6 March 2008.  In essence, Mr Bilton’s position was that Occupational Health had confirmed that Mr Foster was fit to return to work.  That meant that Mr Foster was fit to perform either of the roles which he had been offered within the Security Department.  Mr Bilton saw the allegation of bullying and harassment as a separate issue which had previously been decided, and which Mr Foster could take forward in such manner as he chose.  Mr Foster’s position was that what was preventing him from returning to work within the Security Department was the stress he would experience if he returned to either of the jobs within the Security Department which Mr Bilton had offered him.  Mr Bilton maintained his stance, and he warned Mr Foster that if Mr Foster did not feel fit enough to return to work, the Trust would have no option but to proceed to what Mr Bilton described as “a hearing for capability on the grounds of ill-health”.

6.            Following that meeting, Mr Foster saw Dr McGarry again.  Dr McGarry’s advice to the Trust was that although management thought that the dismissal of Mr Foster’s grievance should be regarded as having resolved the issues of bullying and harassment which Mr Foster had raised, that was not how Mr Foster saw it.  For Mr Foster, rightly or wrongly, the problem still existed.  So long as Mr Foster thought it still existed, his return to work would not be possible until he was redeployed, in effect, to a role outside the Security Department.

7.            Dr McGarry’s advice was not taken.  Management’s view was the same as Mr Bilton’s.  Since Mr Foster’s allegations of bullying and harassment has not been accepted, there was no reason to redeploy him.  Management took the view that Mr Foster’s stress had been catered for sufficiently by the offers made to him by Mr Bilton, and management therefore recommended that he be dismissed if his ill-health prevented him from taking up either of the posts which had been offered within the Security Department. 

8.            That recommendation was considered by Michael Taylor, the Trust’s Head of Estates – Operational Services, at a hearing on 16 June 2008.  He regarded his remit as being limited to whether Mr Foster’s ill-health prevented him from returning to work, and not extending to what the reasons for his absence from work were.  As it was, he did not accept the recommendation that Mr Foster should be dismissed.  He thought that Mr Foster should be put on the Trust’s redeployment register for three months to see if suitable alternative employment was available.  No other steps were taken by the Trust to address Mr Foster’s ongoing concerns.  He was told that he could pursue them, but that would be outside what the Tribunal described as “the current process”.  Mr Foster did not raise a further grievance as he had come to lack any confidence that it would achieve anything.

9.            Unfortunately, Mr Foster was not redeployed in the next three months.  A “redeployment opportunity”, as the Tribunal described it, had arisen during that period, but Mr Foster’s ill-health had prevented him from pursuing that.  However, by the end of September 2008, Mr Merrick had left the Trust’s employment, and Dr McGarry advised that in the light of that, Mr Foster’s phased return to work within the Security Department was a feasible option.  But by then management had begun to have serious reservations about whether Mr Foster would be well enough to return to work in the Security Department even with Mr Merrick’s departure, and their stance was that if Mr Foster returned to work within the Security Department, it should provisionally be for three months so that his progress could be assessed.

10.         Mr Foster’s return to work within the Security Department was considered by Mr Taylor at a reconvened hearing on 10 October 2008.  At that hearing, Mr Foster confirmed that he felt well enough to return to work within the Security Department, though he wanted to speak to his GP first.  He wanted to discuss his ongoing concerns with Mr Taylor, but Mr Taylor told him that that was outside his remit.  Mr Taylor decided that Mr Foster’s return to work within the Security Department could start again on 20 October 2008, and that the position would be reviewed in three months’ time.  If Mr Foster wanted to raise his ongoing concerns, he would have to do so with his line manager, whoever that was.

11.         Mr Foster did not return to work on 20 October 2008.  He wanted to raise his ongoing concerns with his line manager, but he had been told that that would require, as the Tribunal put it, “his consent to undergo the process from the very beginning”, which we take to mean that he would have to raise a fresh grievance.  He was seen by Dr McGarry again on 11 November 2008, and this time Dr McGarry reported that Mr Foster was unfit for work, and that was when he said that he could not predict the likelihood of this “situation” altering within the foreseeable future.  By then, Mr Foster had lost all confidence in the Trust, and he was not sure that there was anything the Trust could have done to enable him to return to work.  In the light of Dr McGarry’s latest report, and Mr Foster’s own acceptance that he was unfit to return to work then, Mr Taylor decided, following a reconvened hearing on 6 February 2009, that Mr Foster’s employment should be terminated.  He did not consider any options other than Mr Foster’s dismissal.

12.         Mr Foster appealed against his dismissal.  The hearing took place on 27 October 2009.  He did not claim that he was fit to return to work, or that the Trust could do anything at that stage to facilitate his return.  He was looking for compensation and for the managers who he regarded as responsible for the situation in which he found himself to be held accountable for their actions.  Since an internal appeal against one’s dismissal is about getting oneself reinstated or re-engaged, and since that was not what Mr Foster was looking for – indeed, he was acknowledging that he was not fit to return to work – it is difficult to see how the appeal panel had any option but to dismiss his appeal.  Indeed, the appeal panel said that the decision to dismiss him was fair and reasonable in the light of the available medical evidence.  The panel thought that the period during which attempts had been made to redeploy Mr Foster could have been extended, i.e. beyond September 2008, but even if it had been extended by, say, three months, the panel thought that it was unlikely that that would have made any difference.

13.         However, pending the panel’s final decision, the chairman made some comments about the way Mr Foster had been treated.  There was evidence that Mr Foster had been harassed.  The delay of nearly a year in investigating his complaints had been unacceptable.  There had been a “failure to manage the sickness absence”, and the attempt “to rigidly separate the management of the sickness absence and his return to work from the investigation of the grievance of bullying and harassment” had been “fatally flawed”.  Mr Foster could have been offered support, and adjustments could have been made, without compromising that investigation.

14.         Those were the facts which the Tribunal found.  It was conceded that at all relevant times Mr Foster was disabled within the meaning of the Disability Discrimination Act 1995 (“the Act”), and the Trust did not contend that it did not know of his disability.  The requirement which was said to have placed Mr Foster at a substantial disadvantage in comparison with persons who were not disabled – which section 4A(1) of the Act required to be established if Mr Foster’s claim of disability discrimination was to succeed – was not identified in the ET1.  That did not matter provided that the requirement was identified with sufficient clarity in the Tribunal’s judgment: see Environment Agency v Rowan [2008] ICR 218 (Judge Serota QC presiding) at [27].  As it is, Mr James Boyd for the Trust acknowledges that it was identified by the Tribunal at the hearing, namely the requirement that Mr Foster could only work in the Security Department, apart from the three months when he was on the redeployment register, during which time he could have been redeployed to a post outside the Security Department if a suitable one had become available.  Accordingly, what the Tribunal had to address on the claim for disability discrimination was whether that requirement placed Mr Foster at a substantial disadvantage in comparison with people who were not disabled.  If it did, the Trust was under a duty to take such steps as were reasonable in all the circumstances of the case – i.e. what the Act calls “reasonable adjustments” – to prevent the requirement having that effect.  The question for the Tribunal would then be whether the Trust had complied with that duty.

15.         The Tribunal found that the requirement placed Mr Foster at a substantial disadvantage: his disability, i.e. his stress, was the result of working within the Security Department, and he could only be expected to return to work there once the factors which had caused his stress had been eliminated.  There was no chance of that being done because the Trust had never thought it necessary to explore, as part of the process to get Mr Foster back to work, what had caused his stress in the first place.  Although the Tribunal could not find that Mr Foster’s complaint that his treatment by Mr Merrick was justified, the fact was that Mr Foster believed, rightly or wrongly, that he had been treated badly, and it was not disputed that it was that which had brought on his stress.  It is almost too obvious to state it, which is probably why the Tribunal did not state it, but the Tribunal must have thought that people who were not disabled as a result of stress were not under the disadvantage of having to work in a department which caused them stress.  There is no challenge to that finding.

16.         When it came to whether the Trust had complied with its duty to make reasonable adjustments to prevent Mr Foster from being at the substantial disadvantage which he was, the Tribunal decided that it had not.  The Tribunal’s reason was that an adjustment which could have been made was to put Mr Foster on the redeployment register in January 2008.  That is also a finding which the Trust does not challenge.  What it challenges is the Tribunal’s finding that that would have been a reasonable adjustment to make.  The Tribunal found that it would have been a reasonable adjustment to make (a) because Mr Foster believed that that was what Mr Kerr had promised in January 2008, and (b) in the light of Dr McGarry’s advice to the Trust in June 2007 and March 2008.  The Tribunal noted that even when Mr Foster was on the redeployment register between June and September 2008, his ill-health had prevented him from pursuing one redeployment opportunity, and that by November 2008 Dr McGarry was reporting that Mr Foster was unfit for work.  The Tribunal concluded, and this is the finding which is challenged, that if Mr Foster had been put on the redeployment register in January 2008, when Mr Foster said that he was ready to return to work and Dr McGarry had confirmed to the Trust that there was no medical bar to that, there would have been “a real prospect” (para. 41) or “a good prospect” (para. 42) of him returning to work if he had been offered appropriate support at the time and the question of his dismissal for his ill-health had been delayed, even if he was not fit to return to work later in the year.

17.         In fact, there was no need for the Tribunal to go as far as to find that there would have been a good or real prospect of Mr Foster being redeployed if he had been on the redeployment register between January and June 2008.  It would have been sufficient for the Tribunal to find that there would have been just a prospect of that.  That is the effect of what the Employment Appeal Tribunal (Judge McMullen QC presiding) held in Cumbria Probation Board v Collingwood (UKEAT/0079/08/JOJ) at [50].  That is not inconsistent with what the Employment Appeal Tribunal (Judge Peter Clark presiding) had previously said in Romec Ltd v Rudham (UKEAT/0069/07/DA) at [39].  The Employment Appeal Tribunal was saying that if there was a real prospect of an adjustment removing the disabled employee’s disadvantage, that would be sufficient to make the adjustment a reasonable one, but the Employment Appeal Tribunal was not saying that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one.  When those propositions were put to Mr Boyd, he did not disagree with them.

18.         The criticism of the Tribunal is that it was not open to it to make the finding which it did about Mr Foster’s prospects of redeployment if he had been on the redeployment register between January and June 2008.  It is claimed that it was not open to the Tribunal to conclude that Mr Foster had proved any facts from which the Tribunal could have concluded, in the absence of any evidence from the Trust, that there was a good or real prospect that he would have been redeployed if he had been on the redeployment register between those dates.  That submission tracks the language of section 17A(1C) of the Act, which sets out the burden of proof in cases of alleged disability discrimination, suitably modified to relate to the facts of the case.

19.         It is acknowledged that the Trust was a sizeable undertaking with a large workforce, but for the Tribunal to say that there was a good or real prospect that Mr Foster would have been redeployed if he had been on the redeployment register between January and June 2008 was, so Mr Boyd argued, a finding at a high level of generality.  In that context, the language of the Employment Appeal Tribunal (Underhill J presiding) in HM Prison Service v Johnson [2007] IRLR 951 at [90] is instructive.

“We are not to be taken as saying that it was incumbent on either the Claimant, in advancing the case, or the Tribunal, in deciding it, to identify a precise alternative posting, with every detail worked out.  The degree of specificity required would depend on the nature of the evidence and the issues.  In some circumstances a finding that there were ‘plenty of other jobs’ which a Claimant could have been moved to might be sufficient (at least for liability purposes).  But it is necessary that that finding be made.  The Tribunal never made a clear finding that … there was … another suitable job elsewhere in the Prison Service or the Home Office to which the Claimant could reasonably have been transferred ...”

20.         It is important to remember that what the Tribunal was having to do was to decide whether in January 2008 when Mr Foster could have been put on the redeployment register but was not, there was a chance that a post suitable for him and at his level of seniority would have become available.  The Tribunal was having to assess that chance as it would have appeared in January 2008.  That assessment was prospective, not retrospective.  That is apparent from the language of section 18B(1)(a) of the Act, which provides:

22.            In the circumstances, the burden of proving that there was not a good chance of such a post becoming available during that period passed to the Trust.  That is entirely understandable since the likelihood of the availability of other posts for Mr Foster would have been far easier for the Trust to assess than Mr Foster.  In the event, the Trust did not prove that because it called no evidence on whether posts at Mr Foster’s level and suitable for him could have been expected in January 2008 to become available in the next six months, and failing that, on whether any such posts had in fact become available during that period.  In that connection, the fact that a redeployment opportunity had arisen during the three months when Mr Foster was on the redeployment register is not insignificant.  It follows that the appeal against the finding of disability discrimination must be dismissed.

23.         We turn to the claim of unfair dismissal.  The Tribunal found that no reasonable employer would have rigidly separated consideration of Mr Foster’s absence from work from the reasons for that absence.  No reasonable employer would have prevented Mr Foster from making representations about the reasons for his absence from work at the hearings at which Mr Taylor was considering whether Mr Foster should be dismissed for his absence due to ill-health.  And no reasonable employer would have dismissed Mr Foster before fully considering the reasons for his absence from work, and whether, when it was in possession of the full facts, there was any alternative to dismissal.

24.         Before turning to the challenge to those findings, we should say that the Trust says that Mr Foster’s original grievance was not limited to his complaint that he had been bullied and harassed by Mr Merrick.  He had made other complaints as well: a complaint that he had not been supported by Mr Merrick’s line manager; a complaint regarding variations in Mr Foster’s contractual hours as a result of the Working Time Regulations and the effect which those variations had had on his pay; a complaint about how previous allegations he had made about fraudulent behaviour on the part of some of the Trust’s employees had been resolved; a complaint that he had not been consulted over the effect on him of a substantial reorganisation within the NHS nationwide; and a complaint about how Mr Merrick had harassed him in connection with that reorganisation.  Mr Foster’s original grievance has not been included in the bundle for use on this appeal, and we therefore cannot say whether his original grievance incorporated all these additional complaints, though the letter of 27 September 2007 has been included in the bundle, and that shows that two complaints were considered over and above Mr Foster’s complaint that he had been bullied and harassed by Mr Merrick.  They were a complaint that he had not been supported by Mr Merrick’s line manager (which was dismissed), and a complaint that he had not been paid the sums properly due to him for weekend working (which was upheld).

25.         However, we do not consider that it is necessary for us to address those complaints, because it is plain that the Tribunal thought that Mr Foster’s ill-health was due to his perception of how he had been treated by Mr Merrick.  That was the topic which he had wanted to raise with Mr Taylor.  That is sufficient for the Trust’s purposes when it comes to the basis on which the Trust challenges the Tribunal’s finding that Mr Foster’s dismissal was unfair.  The Trust’s point is that it should not have been criticised by the Tribunal for divorcing Mr Foster’s absence from work from the reasons for that absence, when the reasons for his absence from work were stress supposedly brought on by the way he was treated by Mr Merrick, when his grievance about that had been rejected, when he had not taken that grievance to the next level of the grievance procedure, and when he did not pursue a fresh grievance, even though he was claiming that the harassment of him was continuing even when he was absent from work.

26.         In our judgment, that criticism of the Tribunal ignores two things.  First, it ignores the point that even though the allegations which Mr Foster had made against Mr Merrick had been rejected, Mr Foster believed, rightly or wrongly, that he had been bullied and harassed by Mr Merrick, and that it had not stopped.  The link between his absence from work and the reasons for his absence still remained because Mr Foster believed that it was the treatment of him at work which had caused his stress, and had made it impossible for him to return to the Security Department while Mr Merrick was still there.

27.         Secondly, the criticism of the Tribunal ignores the core point which the Tribunal had made when it was considering the claim of disability discrimination.  Mr Taylor may have had little option but to dismiss Mr Foster in February 2009 in the light of Dr McGarry’s view in November 2008 that he could not say that there was any likelihood of Mr Foster being able to return to work within the foreseeable future, and Mr Foster’s own acceptance at the hearing before Mr Taylor in February 2009 that he was unfit to return to work.  But there was, as the Tribunal found, a good chance that it would not have got to that stage in February 2009 if Mr Foster had been placed on the redeployment register in January 2008.  It was the Trust’s failure to do that which had set in train the events which resulted in Mr Foster’s dismissal in February 2009.  So when the Tribunal said that no reasonable employer would have dismissed Mr Foster before fully considering the reasons for his absence from work, we think that one of the things which the Tribunal was referring to was that the Trust had not acted reasonably in dismissing Mr Foster before considering why he had been absent from work since January 2008, as his absence from work since then would have been attributable to the Trust’s failure to place him on the redeployment register if a suitable post would have become available for him between January and June 2008.

28.         We do not think that such a finding could be regarded as perverse.  It follows that the appeal against the finding of unfair dismissal must be dismissed as well.