United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0084/13/SM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 12 July 2013

Before

HIS HONOUR JUDGE PETER CLARK

BARONESS DRAKE OF SHENE

MRS M V McARTHUR FCIPD

MS M FULLER   APPELLANT

LONDON BOROUGH OF REDBRIDGE RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

DISABILITY DISCRIMINATION – Reasonable adjustments

Employment Tribunal found no failure by employer to make reasonable adjustments.  No error of law shown.  Appeal dismissed.

HIS HONOUR JUDGE PETER CLARK

Introduction

1.            This is an appeal by Ms Fuller, the Claimant before the East London Employment Tribunal, against the Judgment of an Employment Tribunal, chaired by Employment Judge Franey, following a hearing held between 27 February and 2 March 2012, dismissing her complaints of disability discrimination, constructive unfair dismissal and breach of contract brought against her former employer the Respondent, London Borough of Redbridge.  That Judgment was promulgated with Reasons on 4 April 2012.

2.            The appeal was initially rejected on the paper sift by HHJ Serota QC under EAT rule 3(7) for reasons given in a letter dated 3 July 2012.  However, at an Appellant‑only rule 3(10) oral hearing held on 28 February 2013, HHJ Shanks was persuaded to allow the appeal to proceed to this full hearing.earing HEaring

3.            The Claimant was employed by the Respondent as a Finance Officer from 1 January 2008 until her resignation effective on 18 June 2010.  She suffered from a medical condition known as sarcoidosis, a lung inflammation which can cause dry eyes, skin lesions and can affect her joints, particularly ankle joints.  She also suffered from asthma.  It was common ground that she was disabled within the meaning of the Disability Discrimination Act 1995, then in force.

4.            One of the steps to be taken to avoid the onset of symptoms was to keep away from open windows letting in cold draughts.  An issue arose in the office in which she worked because other employees found the room stuffy with the windows closed in winter.  It seems that working relations between the Claimant and some work colleagues were not good.  By way of example an issue arose between the Claimant and Sue Sicklin as to whether a window should be opened or closed on 27 January 2009.

5.            Attempts were made by the Respondent to resolve the window issue, by the Claimant hot‑desking to avoid draughts and by offering to move her to a different office on a temporary basis, an offer which the Claimant later rejected and also working at Kurly’s desk.

6.            She raised a grievance on 18 March 2009 and was then off sick from 25 March to 13 May.  After a short return to work she was then off sick continuously until her resignation on 18 June 2010.  During that period she used up her contractual six months full sick pay and from 17 September 2009 went onto six months of half pay.  That contractual entitlement ended on 17 March 2010 and we infer she then received Statutory Sick Pay until her resignation.

7.            An attempt was made to obtain assistance from Access to Work but they informed the Claimant on 23 June 2009 that they were unable to help.  She did not then pass that information onto the Respondent.

8.            On 30 July 2009 Ms Cutts produced her report on the Claimant’s grievance, acknowledging that managers could have done better and that there should be some team building.  However, the Claimant’s suggestion that her manager, Ms Reed, had commissioned staff to open windows to upset her was rejected.  An appeal against Ms Cutts’ findings was rejected by Mr Power on 9 October 2009.

9.            The Employment Tribunal found that the Claimant suffered in winter, but not during May to September.  On 24 April 2010 Mr Best, who was Ms Reed’s line manager, invoked the Respondent’s Absence Management Procedures by inviting the Claimant to a meeting on 13 May.  The Claimant instructed solicitors who wrote to the Respondent on 10 May.  On 10 June, the Respondent’s solicitors responded to a further letter from the Claimant’s solicitors dated 4 June.  The Claimant then resigned on 18 June, complaining of a failure by the Respondent to provide a working environment which accommodated her disability.

10.         The disability complaint related to an alleged failure to make reasonable adjustments and direct discrimination.  A late application to amend to add a disability related claim was rejected by the Franey Employment Tribunal.

11.         In essence, the Employment Tribunal reached the following conclusions: (1) For reasons given at paragraphs 175 to 192, they rejected the complaint of any failure to make reasonable adjustments; the complaint in relation to sick pay therefore necessarily fell (see paragraph 192); (2) The direct discrimination claim based on the Respondent’s solicitors’ letter of 10 June 2009 (sic) 2010 failed for the reasons given at paragraph 193; (3) The Respondent was not in fundamental breach of the implied term of mutual trust and confidence (paragraphs 194 to 200); there was no constructive dismissal; (4) Consequently, both the unfair dismissal and wrongful dismissal (notice pay) claims failed; (5) Although all claims were dismissed on their merits, those claims lodged outside the primary three‑month time limit failed on limitation grounds (paragraphs 202 to 206); (6) the Respondent’s costs application was dismissed (paragraphs 207 to 210).

12.         Ms Falade, to whom we are grateful for the clarity of her submissions and obvious mastery of the details of this case, has organised her argument under six grounds of appeal.  She accepts that ground 5 (constructive dismissal) and ground 6 (limitation) are rendered moot unless she can persuade us that the Employment Tribunal fell into error in rejecting the Claimant’s case on reasonable adjustments.  There is no challenge to the finding in relation to direct disability discrimination.  It is to the reasonable adjustments question that grounds 1 to 4 are directed.

13.         As the EAT made clear in Environment Agency v Rowan [2008] IRLR 20, when considering a complaint of failure to make reasonable adjustments, the Tribunal in a physical feature of the premises case as here, should take a three‑step approach.  First, was the Claimant put at a substantial disadvantage by the physical feature complained of?  If not, the duty to make adjustments does not arise.  Secondly, would the adjustment reduce or avoid the disadvantage to the Claimant.  And, thirdly, is the adjustment a reasonable one to make.

14.         We agree with Ms Robinson that reasonable adjustment cases are particularly fact‑sensitive and this case is no exception.  On the basis of the facts found, contrary to ground 4 of the appeal, we are satisfied that the Claimant was not at a disadvantage from open windows in the summer months on the basis of the Tribunal’s findings at paragraphs 172 to 174.  Those months, including 18 June when she resigned and 6 July 2010 when she was declared fit to return to work.  The problem only arose in the winter.  She was not, therefore, disadvantaged at the time when she was due to return to work.

15.         The Tribunal found that reasonable steps had been taken by the Respondent in the past to make adjustments to overcome the problem of open windows during the winter.  As to working in the small reception area in the CRC West building as opposed to the reception area in the school building which was being refurbished (see paragraph 74), we again agree with Ms Robinson that the Tribunal was entitled to take account of problems within the Claimant’s team when it decided that she should not return to work in a separate area from her colleagues (see paragraph 184) and to find that that was not a reasonable adjustment at the time.  Indeed, the Tribunal found that the Respondent had done all that was reasonable to help the Claimant to get back to work; the object of a reasonable adjustment, by taking the exceptional course of permitting the Claimant’s solicitor to attend the proposed return to work interview (see paragraph 199).  That meeting was designed to resolve the issues concerning the Claimant’s working environment.  Instead, she resigned.

16.         In these circumstances we are wholly unpersuaded that any error of law is made out in relation to the Tribunal’s approach to the Respondent’s duty to make reasonable adjustment.  We reject grounds 1 to 4 of the grounds of appeal.  It necessarily follows that ground 5 fails and ground 6 is, as the Tribunal pointed out (particular 202), entirely academic.

17.         Accordingly, this appeal fails and is dismissed.