HIS
HONOUR JUDGE DAVID RICHARDSON
1.
This is an appeal by Prospects for People with Learning Disabilities
(“Prospects”) against a judgment of the Employment Tribunal sitting in Cardiff
(Employment Judge Cadney presiding) dated 5 August 2011. The Tribunal heard
claims of unfair dismissal and disability discrimination (including harassment)
brought by Mrs Elizabeth Harris. It upheld her claim of unfair dismissal and
(in part only) her claim of harassment. Other claims were dismissed.
The background facts
2.
Prospects is a national organisation providing supported living services
for people with disabilities. In Neath it supported two bungalows, each built
to house three residents. These residents had severe disabilities. It is
relevant to describe briefly the condition of three residents in one of the
bungalows. One was blind, deaf, epileptic, with sensory impairment and
challenging and self injurious behaviour. Another was wheelchair dependent,
requiring the use of a hoist, and was diabetic and registered blind. A third
had no verbal communication, was epileptic, had a tendency to slip and fall,
and exhibited challenging and self injurious behaviour.
3.
Ms Harris was a support worker. She was employed at Neath from 27 May
2002 until the termination of her employment with effect from 18 November
2010. She worked mainly in the bungalow to which we have referred, undertaking
night shifts.
4.
Ms Harris has suffered for many years from a rare congenital
musculoskeletal condition known as arthrogryposis. It affects her joints,
resulting in weakness and stiffness. She is unable to straighten her arms and
has had knee problems. She had knee alignment surgery in January 2006, an
ankle operation in October 2008 and knee replacement surgery in January 2009.
She returned to work after this last surgery on 20 February 2009. Her
condition has not prevented her caring for her children and elderly mother, and
doing her housework and shopping. But she has limited strength, limited
capacity for manual handling and limited dexterity. At all material times she
has been a disabled person within the meaning of the Disability
Discrimination Act 1995 and the Equality Act 2010.
5.
By reason of her disability Ms Harris could not undertake
cardio-pulmonary resuscitation (“CPR”), heavy lifting, and many manual tasks.
As the Tribunal found, Prospects knew this and had continued to employ her.
6.
Ms Harris was expected to have a First Aid Certificate. This required
renewal from time to time, and that renewal required attendance at a training
course. The course involved CPR; Ms Harris had always been unable to undertake
it; but it seems that previously her inability to perform CPR had not prevented
the grant of the certificate by the training organisation which Prospects used.
7.
In 2009 after she returned to work Ms Harris fell into dispute with her
manager, Ms Williams. She was asked to work in the other bungalow; she
refused, saying that she felt more at risk in the other bungalow. Ms Harris
was referred for an occupational health report. She refused to attend. In due
course a short GP’s report was obtained with her consent; and an occupational
health report based on the GP report confirmed her condition in general terms.
8.
Ms Harris’s First Aid Certificate had expired in November 2009.
Prospects was well aware that she would have difficulty in renewing her certificate
because the training now required the person trained to demonstrate CPR: this
was specifically stated in a report written in December 2009. However,
Prospects left the matter until Ms Harris attended a course for her replacement
certificate on 5 March 2010. She was again unable to undertake CPR; and on
this occasion the trainer declined to grant her a First Aid Certificate.
9.
In consequence Ms Harris was suspended on full pay. She was informed of
her suspension at a meeting; but there was no prior discussion with her. The
Tribunal described the decision as follows in its findings of fact.
“…the Claimant was suspended with immediate effect because of
concerns of safety. This was a decision taken by Steve Crowther and Jane
Hanwell because they believed that the failure of the claimant to pass the
training course meant that she could not perform CPR. They decided to suspend
and to ask for a doctor’s report.”
10.
A report was indeed obtained from an occupational health physician.
This confirmed her condition. It confirmed that she would not be capable of
doing a variety of tasks which required physical strength: CPR was one of
these. The report said that Prospects, if it had not already done so, might
wish to consider reasonable adjustments.
11.
On 23 April 2010 Prospects met Ms Harris and agreed with her that she
would be transferred from the night shift to work as a supernumerary on the day
shift. While she did so risk assessments were prepared by management relating
to various tasks which she undertook: she saw and signed these risk assessments
on 14 May 2010. A “shopping list” of the tasks she could under take was also
made.
12.
On the basis of these documents Ms Harris was again suspended on 19
August 2010 – on the grounds of her own safety. There was again no discussion
with her prior to the suspension. She was seen again by the occupational
health physician in September. It found that any increased risk to her own
safety at work was small As regards her capabilities, the physician pointed out
that he had already advised Prospects that she was not capable of undertaking
certain tasks “such as practical first aid and physical restraint of agitated
clients”.
13.
Following this report Ms Harris was told she could return to work (but
not, as the Tribunal noted, why). On 7 October 2010 an email was written to Ms
Harris asking her to attend a meeting. The email dealt with the timing of a
grievance appeal hearing and declined her request for a companion to attend a
return to work meeting. Almost incidentally the email said “it would be a good
idea to hold a meeting at which we can review your situation”. She was told
she could bring a companion to this meeting. She was not told that the meeting
might discuss termination of her employment. The Tribunal was critical of this
email: it said that the phraseology was “opaque”; and that it should have been
made abundantly clear if the meeting was intended to discuss termination of her
employment.
14.
On 4 November 2010 the meeting was held. Neither Ms Harris nor her
representative understood, when they attended the meeting, that it might
discuss termination of her employment. But this is what occurred. She was
told both at the meeting and in a confirmatory letter, that in her present job
the risks run were unacceptable and Prospects must “act to end them” and that
it seemed “to have no choice but to end her employment” unless there was some
reasonable alternative employment. She was told all staff had to have
qualifications in first aid and manual handling; and that continuing to employ
her as a supernumerary was not possible. She was asked to consider any other
options before a final decision was taken.
15.
A further meeting took place on 11 November. At this meeting Ms Harris
suggested an alternative means of carrying out CPR using the foot. She
questioned risk assessments and shopping list. She was told that the key
issues were first aid and manual handling.
16.
On 16 November Ms Harris’s employment was terminated. The letter stated
“We have already taken medical advice which is clear, for
example, the Doctor states that you are unable to conduct CPR. She further
states that there are severe limitations that impede manual handling, which in
the scenario.. above, could be potentially lethal. Unfortunately, no amount of
reassessment is going to change this. It is also the case that management is
accountable for any incidents and management has therefore assessment [sic] the
risk.”
17.
On 15 December an appeal hearing took place, concentrating on the issues
of first aid training and manual handling. The appeal was dismissed.
The Tribunal’s reasons
18.
The Tribunal, after setting out its findings of fact, set out its
conclusions. It dismissed a claim of victimisation. It turned to the question
of harassment, summarising accurately the terms of section 3B of the Disability
Discrimination Act 1995 (and section 26 of the Equality Act 2010,
which cast the definition of harassment in slightly different terms).
19.
The Tribunal dealt with the first suspension in paragraphs 51 and 52 of
its reasons.
“51. The second element is the claimant's suspension. In our
judgment, there is a good deal more in the claimant's case in respect of this
allegation. Put simply, the claimant had been employed since 2002 and there had
never been any concern over the quality of her work. It had become increasingly
clear and certainly had been known to the respondents since May 2009, that she
herself believed there were limitations on her work as a result of her
disability, and as was shown by Ms Williams comments on Christmas Eve, it was
known the respondent that she had significant physical limitations. They had
not at any stage prior to the 5th March 2010, despite the fact that claimant's
First Aid Certificate had expired in November 2009, to limit her duties in any
way. However, immediately upon discovering that the claimant had been unable to
successively complete the CPR part of the First Aid Course on 5th
March 2010, it was decided that she should be suspended without any prior
discussion with her or consultation with her, or apparently any consideration
of whether there was any other task in which she could be employed. She was
subsequently employed from the 7th May 2010, in a supernumerary
capacity on the day shift. It is hard to see why this could not have been
considered or implemented in March.
52. The respondent suggests that since suspension is a neutral
act, pending investigation, that this is not capable of being an act of
harassment. However, in our judgment simply to suspend a disabled person
because of the consequence of a disability which had been known by her
immediate Line Manager for something approaching a year, which she herself had
asserted seriously affected her ability to do her job, in circumstances in
which they had known for at least 4 months that she did not possess an
appropriate First Aid Certificate and should have known that she was extremely
unlikely to be able to obtain one is certainly capable of violating her
dignity. The reason for this in our view is that it evinces a failure to
actively consider the effect and consequences of the disability at an early
stage resulting in a suspension which may, had they addressed the question
earlier have been entirely unnecessary. Accordingly in our judgment that,
subject again to the points about time limits, can reasonably be considered
conduct which violated her dignity and is an act of harassment.”
20.
The Tribunal turned to the second suspension in paragraph 56 of its
reasons.
“56. The next matter is the second suspension on the 20th
August 2010. Again, in our judgment, there is merit in this allegation. Once
again, the suspension was decided without any consultation with the claimant.
Given that it was apparently based upon the risk assessment the claimant had
herself completed, together with the shopping list assessment which she had
not, and given that it was in respect of the risk of her slipping or falling,
something which had not eventuated in the 8 years of her employment, it is
difficult to see why it was important to suspend her at that point. It appears
to us that the reasons for the suspension are in fact very scant, but perhaps
more pertinently in terms of harassment, that it is a violation of a disabled
person’s dignity, simply to suspend them from work without any discussion or
consultation about the reasons for it.”
21.
The Tribunal found, however, that Ms Harris’s dismissal was not an act
of disability discrimination. Although she was treated unfavourably by reason
of something in consequence of her disability, her dismissal was a
proportionate means of achieving a legitimate aim; for reasons which it set out
in some detail, there were no reasonable adjustments which would have allowed
her to continue in the employment of Prospects, given her physical limitations.
The Tribunal said:
“It follows that in our judgment, none of the adjustments
contended for could have allowed the claimant to continue in the role of
support worker as there were fundamental and irreducible aspects of the role
that she could not perform.”
“We accept the respondent’s primary case, which is that their
essential duty and their primary duty is the care of the residents for whom
they are concerned. That includes providing staff who are able to assist them
in an emergency.”
22.
Although the dismissal was not an act of disability discrimination, the
Tribunal found that the dismissal was unfair. The Tribunal accepted that the
dismissal was for capability, a potentially fair reason. It accepted that the
decision to dismiss Ms Harris could be substantively fair. It found, however,
that the procedure was not fair. It said:
“70. For the reasons set out above, in our judgment, it was
known to the respondent that the claimant had not appreciated prior to the
meeting of the 4th November 2010, that there was any risk to her
employment. Accordingly, whether she should or should not have appreciated
that fact, she had no reasonable opportunity to prepare for the meeting of the
4th November 2010. She was then presented with what is essentially
a fait accompli, which was reinforced on the 11th November
2010, leading to her dismissal. It follows that in our judgment, we have grave
concerns as to whether this dismissal was procedurally fair. We have concluded
it was not. There was no consultation as to the underlying medical condition
or evidence as contemplated in the well known case of East Lindsey District
Council v Daubney which is in itself in our judgment sufficient to render
the dismissal unfair.”
23.
The Tribunal went on to say: –
“72. We have not had submissions specifically as to Polkey,
(although general points are made in the written submissions) but it will be
apparent that in our judgment, it was inevitable had a fair procedure been
adopted that the claimant would have been dismissed. This is in the
circumstances a provisional view set out to assist the parties in any
discussions, and is subject to any further submissions either party would wish
to make on hearing of remedy in this matter.”
Statutory provisions
24.
The two instances of harassment which the Tribunal found to be
established occurred prior to 1 October 2010 when the Equality Act 2010
came into force. Accordingly the relevant law concerning harassment was
contained in the Disability Discrimination Act 1995.
25.
Section 3B provided:
“3B Meaning of ‘harassment’
(1) For the purposes of this Part, a person subjects a disabled
person to harassment where, for a reason which relates to the disabled person’s
disability, he engages in unwanted conduct which has the purpose or effect of -
(a) violating the disabled person’s
dignity, or
(b) creating an intimidating,
hostile, degrading, humiliating or offensive environment for him.
(2) Conduct shall be regard as having the effect referred to in
paragraph (a) or (b) of subsection (1) only if, having regard to all the
circumstances, including in particular the perception of the disabled person,
it should reasonably be considered as having that effect.”
26.
By virtue of section 4(3)(b) it was unlawful for an employer, in
relation to employment by him, to subject to harassment a disabled employee
whom he employed.
27.
It will be noted that there is no defence of justification within
section 3B. Section 3B(2), however, provides a statutory direction that
conduct shall be regarded as falling within section 3B(1) only if it should
reasonably be considered as having that effect.
28.
As to unfair dismissal, the Tribunal, having found that the reason for
dismissal related to capability, was obliged to apply section 98(4) of the Employment
Rights Act 1996:
“98(4) In any other case where the employer has fulfilled the
requirements of subsection (1), the determination of the question whether the
dismissal is fair or unfair (having regard to the reason shown by the employer)
–
(a) depends on whether in the
circumstances (including the size and administrative resources of the
employer’s undertaking) the employer acted reasonably or unreasonably in
treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance
with equity and the substantial merits of the case.”
Suspension
29.
On behalf of Prospects, Mr O’Dair first addressed us on the question of
suspension. He does not suggest that the Employment Tribunal stated the law
incorrectly, or that the Tribunal’s reasons are indicative of any misunderstanding
of the law. He puts his case in two ways. He submits that the Employment
Tribunal’s reasons are perverse; alternatively he submits that the Tribunal has
“failed to consider” matters which it ought to have considered.
30.
As regard the first suspension, he submits that the Employment Tribunal
left out of account its finding that Ms Harris had refused to co-operate with
the making of an occupational health report. This, he submitted, was
fundamentally inconsistent with its findings in paragraphs 51 and 52 that there
should have been earlier consultation with her. The Tribunal’s conclusion on
this point was perverse.
31.
Further, he submitted that the Tribunal had lost sight of the purpose of
the suspension. It was, he submitted, appropriate and necessary for the
protection of the residents – in particular a resident who was in poor health
that very weekend – that the suspension was imposed. Such a suspension could
not, he submitted, be an act of harassment. He criticised the Tribunal for,
as he would put it, applying hindsight to the decision which Prospects’ manager
had to take at short notice after Ms Harris failed to acquire a first aid
certificate. He submitted that the Tribunal’s conclusion was at odds with its
eventual findings in, for example, paragraph 72 of its reasons.
32.
As regards the second suspension, he submitted that the Tribunal failed
to appreciate Prospects’ duty, both legal and moral, to an employee such as Ms
Harris. He referred us to section 59 of the Disability Discrimination Act
1995, which provides that nothing in the Act renders unlawful any act done
in pursuance of any enactment; and took us to Amnesty International v
Ahmed [2009] ICR 1450, following and applying GMC v Goba [1988]
ICR 885, in support of a submission that Prospects’ action was not unlawful so
long as it was reasonably necessary to suspend Ms Harris. He criticised the
Tribunal’s conclusion that there was “scant” reason for suspension; he said
that the decision was honestly taken for her safety; and such reasons could not
be described as “scant”. He accepted that the risk assessments showed only a
moderate risk, and that the Claimant had been working for Prospects for some
years; nevertheless he submitted that the Tribunal’s conclusions were perverse.
33.
On the question of suspension our conclusions are as follows.
34.
The Tribunal was, we think, correct to see the importance of, and
address, Mr O’Dair’s submission that suspension on full pay was a neutral act
(see paragraph 52). Where an employer acts reasonably in imposing suspension
with pay, we do not think his action can or should amount to an act of
harassment. In the generality of cases, suspension on full pay will not amount
to harassment.
35.
On the one hand, suspension ought never to be routine: it ought to be
imposed only where it is necessary to do and after careful consideration; and
it should be kept under review to ensure that it is not unnecessarily
protracted: see the ACAS Code, para 8, and the Guide, para 4.15 – which provide
as follows: –
“8. In cases where a period of suspension with pay is considered
necessary, this period should be as brief as possible, should be kept under
review and it should be made clear that this suspension is not considered a
disciplinary action.
4.15 There may be instances where suspension with pay is
necessary while investigations are carried out. For example where
relationships have broken down, in gross misconduct cases or where there are
risks to an employee’s or the company’s property or responsibilities to other parties.
Exceptionally you may wish to consider suspension with pay where you have
reasonable grounds for concern that evidence has been tampered with, destroyed
or witnesses pressurised before the meeting.
Suspension with pay should only be imposed after careful
consideration and should be reviewed to ensure it is not unnecessarily
protracted. It should be made clear that suspension is not an assumption of
guilt and is not considered a disciplinary sanction.”
36.
On the other hand, however, suspension can be necessary for a variety of
reasons; and if an employer reasonably believes that it is necessary, and makes
clear to an employee that the suspension is pending investigation and decision,
we do not think it will fall within the harassment provisions. These
provisions do not make specific provision for a defence of justification, but
if a suspension is properly and reasonably imposed it will not be reasonable to
consider it as having the effects set out in section 3B(1): see section 3B(2).
37.
The Tribunal was, however, entitled in our judgment to find that the
suspension imposed in this case was far removed from the generality of cases.
38.
We reject Mr O’Dair’s criticism that the Tribunal has failed to take
into account Ms Harris’s refusal, some nine months earlier, to co-operate with
the making of an occupational health report. That refusal related to a quite
different issue. As regards Ms Harris’s ability to undertake CPR, there was no
doubt. Prospects’ report in December 2009 highlighted it; but Prospects took
no steps to consider it with Ms Harris. It sent her on a course containing a
component which it knew was a problem for her, given her disability. Without
any discussion on the question, prior to or after the course, it suspended
her. We see no error of law or perversity in the Tribunal’s reasons.
39.
We further reject his submission that the Tribunal was bound to find
suspension necessary for the protection of the residents. As the Tribunal
itself found, there was a requirement for a member of staff to be trained in
CPR and to have a certificate to this effect. But it does not follow that Ms
Harris had to be suspended peremptorily. With forethought and preparation,
this could have been avoided; or she could have worked as a supernumerary. We
reject Mr O’Dair’s criticism that the Tribunal applied hindsight to the
decision which had to be taken on 5 March. The Tribunal’s point was that if
proper consideration had been given to the position of Ms Harris, a disabled
person, the peremptory suspension could have been avoided.
40.
As regards the second suspension, the Tribunal again reached, in our
judgment, a conclusion which it was entitled to reach. It is not, and cannot
possibly be, the law that an employer is required peremptorily to suspend an
employee, disabled or not disabled, simply because a risk assessment shows that
some part of the work creates a moderate risk for them. The Tribunal was
entitled to criticise Prospects for failing to consult with Ms Harris
properly. Its reasons for imposing this suspension were indeed scant, as the
subsequent occupational health report showed; and dismissal, when it occurred,
took place on different grounds after she had returned to work.
41.
Mr O’Dair’s point under section 59 of the Disability Discrimination
Act 1995 was not taken below and is not open to him now as a discrete
point. In view of the subsequent occupational health report, however, we
consider that the Tribunal would inevitably have come to the conclusion that
suspension of Ms Harris for her own safety was not reasonably necessary.
42.
For these reasons we consider that the Employment Tribunal, in the
particular and unusual circumstances of this case, was entitled in law to
conclude that the case of harassment was made out; its decision was not
perverse.
Unfair dismissal
43.
As regards unfair dismissal, Mr O’Dair submits that the Tribunal has
placed altogether too much weight on what occurred on 4 November. This, he
submits, was no more than an introductory meeting; Ms Harris and her
representative had a full opportunity to make submissions at a meeting on 11
November and at the appeal. He submits that Prospects could simply have
written to her on that day; if it had done so, and held a meeting on 11
November, its procedure could not be said to be unfair. Therefore what
happened on 4 November could not found a finding of unfair dismissal. He
distinguished East Lindsey DC v Daubney on its facts.
44.
Further Mr O’Dair submits that the Tribunal has left out of account the
appeal which took place in the following month. He took us to the minutes of
the appeal, and suggested that this was a complete appeal which gave Ms Harris
every opportunity to put her case.
45.
We reject these submissions; in our judgment the Tribunal did not err in
law.
46.
The Tribunal was in our judgment right to conclude that if an employer
is considering the dismissal of a disabled employee on the grounds of
capability, it should consult the employee in good time so that an employee
knows the seriousness of the position and can consider her own response. In
this case there was no such consultation; the email on 7 October did not even
tell Ms Harris that her employment was at risk. The Tribunal was entitled to
find that, when the employee was first told that her employment was at risk at
a meeting when the employer informed her that it had already taken a
provisional decision to dismiss, there was no adequate process of
consultation. The Tribunal was entitled to find that this lack of consultation
was not cured by a meeting after a provisional decision to dismiss had been
notified, still less by an appeal after the final decision. We would add that
the appeal meeting was, as the notes indicate, held on a limited basis; but the
fundamental point is that the time for consultation to begin was prior to the
start of the formal dismissal process.
47.
For these reasons we conclude that the Tribunal did not err in law; and
did not reach a perverse conclusion.
