United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0305/13/LA

 

 

EMPLOYMENT APPEAL TRIBUNAL

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

 

 

At the Tribunal

on 2 December 2013

Judgment handed down on 18 February 2014

 

 

Before

THE HONOURABLE MR JUSTICE LANGSTAFF

MR J HARRIS

MR J MALLENDER

 

 

 

 

 

 

ABERTAWE BRO MORGANNWG UNIVERSITY APPELLANT

LOCAL HEALTH BOARD

 

 

 

 

 

MS A MORGAN RESPONDENT

 

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR JULIAN ALLSOP (of Counsel) Instructed by: MLM Cartwright Solicitors Pendragon House Fitzalan Court Newport Road Cardiff CF24 0BA
For the Respondent	MR ALLAN ROBERTS (of Counsel) Instructed by: Royal College of Nursing Legal Services Lyndon House 58-62 Hagley Road Edgbaston B16 8PE

 

 

SUMMARY

DISABILITY DISCRIMINATION: REASONABLE ADJUSTMENTS

EXTENSION OF TIME: JUST AND EQUITABLE

PERVERSITY

An employee, who suffered from the effects of a significant depressive illness, was subject to a PCP that she should attend work in her usual post. In deciding that an employer had failed in its duty to make reasonable adjustments in the light of her agreed disability, by failing to redeploy her to an alternative post “in line with” the advice of its Occupational Health doctor, the ET erred, since as to a period before August 2011 it did not have any clear idea what features such a job would have to have to avoid the PCP causing substantial disadvantage to the claimant, and though it asked whether the adjustment would have done so, conspicuously failed to answer that question. (Though it thought that the failure to make the adjustment had caused additional difficulty to the Claimant, this did not answer the question whether to make it would have avoided the disadvantage in the first place).  The answer was not self-evident. As to the period after August 2011  it wrongly assumed that the doctor was advising that she could work if only some adjustments were made in connection with a particular alternative post, whereas he was in fact saying (at the time) that she could not work at all and would only be able to do so if her condition improved.  This same material misconception of fact vitiated a finding of discrimination related to disability. 

 

Two findings of harassment were made which were also subject of appeal.  The incidents giving rise to them arose in one case some three years before the claim was made.  It was unclear whether the tribunal, when accepting in relation to that case that the approach of a manger in a meeting had caused the proscribed “environment” had meant to say that it caused that during the meeting, but not more broadly, and since it did not refer to any evidence of ongoing consequence or perpetuated difficult atmosphere probably gave too wide a scope to “environment” which refers to an ongoing state of affairs and not a short-lived one-off incident (Weeks v Newham College applied).  The appeal in relation to the other finding was rejected.

 

Finally, the ET had erred in its exercise of discretion to extend time on the basis that it was just and equitable to do so: each allegation was separate, and should have been considered separately rather than globally; the ET had not considered a central question – the claimant’s reason in each case for being out of time ; and in reaching a decision that the matter was “finely balanced”, but that what tipped the balance was that otherwise the claimant would be denied well-founded claims, had taken into account a view of the merits of the claims that was (after this appeal) shown to be erroneous. 

 

The appeal was allowed; the decision was in part reversed and the balance, including the issue of extension of time in all cases, remitted for further submissions and consideration in the light of the judgment.

 

 

 

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

 

Introduction

1.              For reasons sent on 28^th March 2013 a Tribunal at Cardiff (Employment Judge Beard, Mrs Palmer, Mr Lloyd) dismissed claims of disability related discrimination contrary to the Disability Discrimination Act 1995, and of unfair dismissal, but upheld claims of discrimination arising from disability, pursuant to Section 15 of the Equality Act 2010, that the Respondent (“Abertawe”) had failed to make reasonable adjustments, pursuant to Section 20 of that Act, and that the Claimant had been subject to harassment as defined in Section 26 and prohibited by Section 40 of the Equality Act 2010.  It dismissed an argument that these claims should be rejected on time grounds. 

 

2.              Abertawe appeals against all the findings in favour of the Claimant.

 

The Facts

3.              The Claimant was employed from January 2007 as a psychiatric nurse therapist.  Some twenty years earlier she had spent a year as a psychiatric in-patient, suffering severe depression.  Though controlled to some extent by medication, that condition constituted a disability. 

 

4.              On 14^th October 2008 the Tribunal found that the Claimant’s manager Wendy Anthony enquired during the course of a meeting if the Claimant had had any previous episodes of mental ill-health which she had not discussed with the Occupational Health Department.  That involved a degree of accusation: it would have appeared that Wendy Anthony was accusing the Claimant of failing to do something which she should have done.  In its analysis of the facts, the Tribunal concluded that Wendy Anthony did not raise those issues with the statutorily proscribed purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment (adopting the words of Section 26 (1) (b) (ii) of the 2010 Act), but that that was the effect of what she said, and it found that it was reasonable for the Claimant to perceive it as creating such an environment, and on that basis it fell foul of the Act.

 

5.              The Claimant went off work from 17^th July 2010 until she was dismissed on 30^th December 2011 on the grounds of capability.  That dismissal was found not to be unfair. 

 

6.              In February 2011, whilst she was off work, there was a review meeting.  Abertawe’s HR advisor, Laura Keighan was present.  When the Claimant started to discuss her rights as a disabled person, suggesting that the Respondent was required to uphold them, the Tribunal found (at paragraph 27.9):

 

“…in our judgment Laura Keighan laughed when the Claimant was talking about the disability rights that the Respondent was required to uphold.  She attempted to persuade the Claimant that her complaints of bullying had no foundation.”

 

In fact, the Tribunal did dismiss those complaints: but it was also Miss Keighan’s reaction to her raising disability rights of which the Claimant complained.

 

7.              The Occupational Health Doctor, Dr Tidley (which is how he spells his own name in correspondence – other spellings appear in the judgment) advised in a report in April 2011 that he would support the Claimant’s transfer to different work (paragraph 28.3).  The only evidence of the start of the search for such work showed that it came at the end of June 2011 (paragraph 29.6), such that in early July 2011 the Claimant was offered three posts involving work different from that which she had been doing.  She turned the posts down as unsuitable, an assessment later shown to be shared by Dr Tidley in a subsequent report.  However, on 14^th July 2011, she was told of a secondment opportunity at Neath Port Talbot Hospital.  She began work there on 26^th July.  It was common ground that by the second day in that post she was visibly fatigued (though whether she had fallen asleep on the job as Abertawe claimed was in dispute).  She did not return to the job, getting to which involved an hour and a half of travel.

 

8.               Dr Tidley examined the Claimant in early August 2011, and in a letter of 15 August 2011 he wrote to the Claimant’s line manager, Pam Rosser.  The terms of that letter are of central importance.  It says, in the material parts:-

 

“On the basis of my assessment on 9 August 2011, I advise that Ms Morgan is currently unfit for work and I confirm that she is unfit to undertake her substantive duties as a Nurse Therapist in line with the Occupational Health advice provided to date.  I note the information contained in your letter dated 29 July 2011, including the concerns you report regarding Ms Morgan during her return to work programme.  I explored the concerns about Ms Morgan allegedly falling asleep whilst at work and whilst I advise that she reports she was fatigued, she refutes actually falling asleep as outlined in your letter and I have no medical reason to question this.

 

As outlined above, at the time of Ms Morgan’s appointment with me she was, in my opinion,  unfit for work but if her psychological health problems improve I confirm that I would support her, from a health perspective, resuming this return to work post but I would recommend altering the rehabilitative arrangements such that she works two or three half-days during week one and week two and then incrementally increases her attendance thereafter to try to reduce the impact of fatigue when she first returns to work… I have now arranged to re-assess Ms Morgan’s health status and general fitness for work again in approximately two to three months and with Ms Morgan’s agreement I will write to you again thereafter with further Occupational Health advice.” (emphasis added).

 

9.              It was on 26^th October 2011 that Dr Tidley next examined her (paragraph 42).  The Tribunal found:-

“His opinion by this stage was that the Claimant was not fit for re-deployment to an alternative post and that his view was that she might seek ill-health retirement.”

 

10.          That report was sent to Ms Rosser on 12^th December 2011.  On 15^th December 2011, on the basis of what Dr Tidley had said, the Claimant was dismissed with pay in lieu of notice with immediate effect, receiving ill-health retirement benefits at the highest rate.  This dismissal was not unfair.

 

The Decision

11.          The Tribunal considered discrimination arising from disability at paragraph 63.  Section 15 of the Equality Act 2010 provides that:-

“(1) A person (A) discriminates against a disabled person (B) if –

(a) A treats B unfavourably because of something arising in consequence of B’s disability and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim….”

 

The Tribunal held that unfavourable treatment was made out (someone in her position, who like her wanted to return to work, would consider a refusal to allow return as unfavourable).  Dr Tidley’s report suggested adjustments (63.4.1) which would avoid the Claimant demonstrating fatigue.  It was therefore not proportionate in the circumstances simply to end the placement (63.4.6).  Accordingly, her claim was made out.

 

12.          Harassment is proscribed by Section 40 of the Equality Act 2010, but defined by Section 26 in these terms –

“(1)  A person (A) harasses another (B) if –

(a) A engages in unwarranted conduct related to a relevant protected characteristic and

(b) the conduct has the purpose or effect of (i) violating B’s dignity or (ii) creating an intimidating or hostile, degrading, humiliating or offensive environment for (B)…

…..

(4)  In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account –

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect”

 

13.          The Tribunal found that Wendy Anthony’s accusatory remarks at the meeting in October 2008 constituted harassment, as separately did Laura Keighan’s laughter at the Claimant when she was making a serious point in February 2011, and the Claimant’s reaction to these incidents was reasonable within Section 26 (4).

 

14.          The third allegation of harassment concerned the Claimant’s raising a dignity at work grievance, which the Tribunal appeared to find had been made on 27^th September 2010.  There was an indication given to her then that there would be some form of investigation.  The Tribunal concluded that despite this her grievance was “virtually ignored, despite being raised on a number of occasions prior to the summer of 2011.  That must certainly amount to unwanted conduct”.  It considered that whereas there was insufficient evidence to show that delay by a Susan Stone in preparing a report on her grievance was for a reason related to her disability, in respect of Laura Keighan (against whom the same complaint of progressing the grievance at a slow pace was raised) it was established.  This was on the basis that Section 136 of the Equality Act applied in her case shifting the burden of proof.  That Section reads materially as follows:-

 

“…(2)  If there are facts from which the Court could decide in the absence of any other explanation, that a person (A) contravened in the provision concerned, the Court must hold that the contravention occurred.

(3)  But Sub-Section (2) does not apply if A shows that A did not contravene the provision.”

 

This Section covers an allegation of a breach of Section 40.  In addition to the evidence that applied also in the case of Susan Stone – that there was slowness in progressing a grievance, and that the Claimant was disabled – there was additional material in the case against Ms Keighan: first, the fact that she had belittled the Claimant’s reference to disability during the sickness absence meetings; and second that the explanation given by the Respondent for her approach was rejected.  Accordingly, by application of Section 136 harassment was made out.

 

15.          When the Tribunal came to consider whether there had been a breach of the duty to make reasonable adjustments, it was considering a duty relevantly expressed in relation to this case in Section 20(3) Equality Act 2010:

“…a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

 

16.          The Tribunal thought that the PCP was “that the Claimant attend work in her usual post”; and that “…that would clearly place anyone with the Claimant’s disability at a disadvantage as it did the Claimant as she could not comply with this criterion because of her disability”.  It asked therefore “whether any of the adjustments proposed would have alleviated that disadvantage”. It considered [66.5] that the Respondent could have redeployed the Claimant to an alternative post on either a temporary or permanent basis, and that [66.6] there was a duty to do so to “a suitable post in accordance with Dr. Tidley’s advice”.  This duty was plainly one which the Tribunal envisaged as being honoured in the period between April and July, for in paragraph 66.7 it went on to say:

“In addition to this when the claimant was redeployed there was again a failure to follow up on this redeployment after Dr. Tidley’s further advice.. [of August 2011] ”  (Italics supplied).

 

17.          Accordingly, the Tribunal addressed the duty to make an adjustment in respect of two time periods - that from April until the redeployment to Neath Port Talbot, and that following the collapse of that redeployment.

 

18.          Finally, it considered whether the claims were brought within time. All had been brought outside the primary time limit, so it was only if time were to be extended on the basis that it was just and equitable to do so that there would be jurisdiction to hear the claims.  The Tribunal’s conclusion as to this was summed up at paragraph 67.7:

 

“This is a difficult balancing exercise as clearly there is a degree of prejudice to the respondent in the late presentation of the claim.  However, in our judgment that prejudice is factually minimal in this case as the respondent had a long period in which to deal with the claimant’s complaint and had carried out a detailed investigation.  Given the prejudice to the claimant of losing her right to well founded claims, in circumstances where she had significant mental health difficulties in dealing with daily life we have come to the conclusion that it is just and equitable to extend time.”

 

The Appeal

19.          The Respondent appeals on seven grounds. The first three of those relate to the finding that the Respondent broke its duty to make reasonable adjustments; the fourth to the finding of discrimination arising from disability; the next two to the findings that Wendy Anthony (Ground 5) and Laura Keighan (Ground 6) had subjected the claimant to harassment for which the Respondent was liable, and the seventh argued that the conclusion that it was just and equitable to extend time was flawed.

 

20.          The central point spanning all the first four grounds was an evidential one: that the Tribunal had misinterpreted that which Dr.Tidley reported in August 2011. At paragraph 38.1 it recorded that his letter of 15^th. August suggested the claimant was “still unfit to take up her substantive duties as a nurse therapist”; at paragraph 63 that he had recommended adjustments; and at paragraph 39.1 that there was no reason for the claimant not to re-take the placement at Neath/Port Talbot if those recommendations were put into place.  However, it contrasted the employer’s view as being that occupational health advice (i.e. that of Dr. Tidley) was that she was “currently unfit for work” with a three month certificate to that effect, which was why the Respondent did not consider renewing the redeployment.  Mr. Allsop, who appeared for the Respondent, argued that the Tribunal appeared to think that if only adjustments were made, albeit in respect of the redeployed placement, the Claimant could there and then have resumed work, and there was no medical bar to her doing so.  In so thinking, it had materially misunderstood what Dr.Tidley said.

 

21.          These arguments require close examination of Dr.Tidley’s letter of 15^th. August, and, so far as it may add colour, any other relevant evidence before the Tribunal as to the claimant’s ability to work after July 2011. 

 

22.            We see no answer to Mr. Allsop’s submission that Dr. Tidley was saying, in his letter of August 2011, that the Claimant was unfit for any work. He was specifically reviewing her “general fitness for work”; in doing so described her as “currently unfit for work”; thought that he would support her return to work in her redeployed post “if her psychological health problems improve”, thereby saying that he could not support it until then; and gave a two to three month period before he next reviewed her health, presumably to see if by then those problems had indeed improved, but anticipating they were unlikely to improve sufficiently to permit work before then.  This was the way the Respondent said it read it – as recorded in a letter of 30^th. August from Pam Rosser to the Claimant. When this is coupled with the accepted fact that the Claimant was signed off work for three months, the record in Rosser’s letter of 30^th. August that the Claimant confirmed that she “..still remained unfit for work..” as at that date, an account which does not seem to have been challenged by the Claimant, and the fact that by 1^st. November 2011 Dr. Tidley was expressing the view that he did not anticipate her health improving so as to be able to permit her to work in the immediately foreseeable future, whatever the adjustment, such that he would then support ill-health retirement, no other conclusion is reasonably open.  The Tribunal itself held the dismissal of the claimant on 15^th. December 2011 on the ground that she was medically incapable was not unfair, nor disproportionate [64].  The overall picture is thus of a descent from doing some work, to being not currently able to work, to being permanently unable to do so, with nothing to suggest intermediate improvement.

 

23.          Although Mr. Roberts, who appeared for the Claimant, struggled valiantly to argue that it was not perverse of the Tribunal to conclude that Dr. Tidley was saying that with adjustments the Claimant would be fit to return to the redeployed post, we simply cannot read the material in any other way. There was no material which showed that the Claimant was fit for work, albeit in a redeployed post, at the time.  Her attempt to work had failed on the second day; it would seem from the letter of 30 August she herself accepted her unfitness then to work; the medical advice (though at that stage holding out the possibility that the claimant might be fitter after around three months) was one-way.

 

24.          The claim of discrimination arising from disability by not allowing the claimant to return to the redeployed role in August 2011 was necessarily predicated upon the Claimant being able to do it. The apparent finding of the Tribunal that she could was in error, for the reasons we have given.  If she could not do so, she suffered no detriment.  The reliance of the Tribunal on the failure of the Respondent to make adjustments as suggested by Dr.Tidley [63.4.6] ignores the fact that he was not suggesting that those adjustments would enable an immediate return to work, since he was describing her as currently unfit for that in any capacity, and that she would be able to do some work only if her health improved.

 

25.          We are bound therefore to conclude that insofar as the Tribunal’s decision relied on its erroneous view of what the health of the Claimant permitted, in the light of Dr.Tidley’s letter, the appeal must be allowed.

 

26.          This error affects its decision in respect of both reasonable adjustments, at least after the end of the Neath/Port Talbot placement, and discrimination relating to disability.

 

27.          Mr. Allsop argued that there were further reasons for holding the tribunal in error in relation to the former, and in particular the Tribunal’s finding in respect of the period between April and July (if it made one). First, the statute requires a comparison to be made between the claimant and those who are not subject to the same disability as was she, but no comparison was drawn in paragraph 66.2. Second, the nature and extent of the disadvantage should have been established. Both of these were requirements of the statutory provisions of the Disability Discrimination Act 1995, considered in Environment Agency v Rowan [2008] ICR 218, paragraph 27, and just as applicable to the requirements under the Equality Act 2010:

“In our opinion an Employment Tribunal considering a claim that an employer has discriminated against an employee ….. by failing to comply with [the duty to make adjustments to avoid the substantial disadvantage suffered because of a disability] must identify:

 

(a) the provision, criterion or practice applied by or on behalf of an employer, …………. [ (b) is not material here ]……..

 

(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 …………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….placing the disabled person concerned at a substantial disadvantage.”

 

28.          He submitted that the Tribunal here did not consider if the disadvantage was “substantial”, and should have done so. The Notice of Appeal argues that “without a coherent finding of the nature and extent of the substantial disadvantage, it was not possible for the Employment Tribunal to identify the reasonable adjustment required so that the Respondent could comply with its duty…”.

 

29.          The Tribunal concluded that what was needed was to “redeploy the claimant in a suitable post in line with Dr. Tidley’s advice” [para. 66.6]. Mr. Allsop submitted this was nebulous, and did not clearly identify what was required, nor what feature of the claimant’s disability would have been avoided by it.  Instead of asking whether the adjustment (i.e. redeployment in line with his advice, whatever that meant) would have avoided her disability causing substantial disadvantage to the claimant, it concluded that the failure to redeploy her had had “some impact on the deterioration of the claimant’s health” [66.4] which did not address the relevant question, however significant a view it might have been in a claim for personal injury damages: the issue is not whether failure to make a required adjustment caused damage, but whether such an adjustment was required in the first place. 

 

30.          In considering these submissions, we are once again required to review what the Tribunal had in mind as being adjustments made “in line with Dr. Tidley’s advice”.  This means going back before August 2011.

 

31.          The Tribunal found that Dr.Tidley had reported on the claimant in August 2008, when he had suggested that the claimant’s work programme should be adjusted so that she worked over four days per week. [15, 16.5].  This appears to have led to it being agreed with Abertawe in November 2008 that she could work a reduced week of 30 hours [16.7].  Thus far, an adjustment was made in line with the advice.  His next opinion as recorded by the Tribunal was

that of 9 November 2010, when he thought her unfit to carry out her work in any role, and this was likely to be so for some 2-3 months [25.1]. No adjustment was then called for. On 3^rd. February 2011, in a report received 25^th. February, he thought she might be able to work in a different work setting, and that:

“..if a suitable role was identified he could give further advice on the claimant’s ability to undertake that role.” [para.25.2]

 

 

In words which echo those, the Tribunal described his next advice of 4^th April 2011, received 8^th. April, as being that the claimant remained unfit to work as a nurse therapist, but that Dr. Tidley would support her transfer to different work, referring back to his advice of 3^rd. February.  It said:

“..he made it clear that if a potential opportunity arose, he or one of his colleagues would advise about that particular work.  He makes it clear that he is unable to provide any further advice”

 

32.          At paragraphs 31 and 32 the Tribunal set out that there were further reports from Dr. Tidley , which were repetitive of this earlier advice. In the latter, however, he specifically referred to adjustments:

“…indicating that he had only very general information about the proposed opportunity for the claimant to take up alternative work, and then he would require further details in order to make specific recommendations as to adjustments”

 

 

33.          What is singularly lacking from those passages is anything that might be termed specific advice – indeed, the Tribunal noted that Dr. Tidley could not give any, unless a particular job opportunity had first been brought to his attention.  It is plain from this that not every alternative job would suit the claimant – and with a complex disability such as severe depressive illness, influenced by many factors, it is not difficult to see why that should be.  But the features of an alternative job which would lead to some confidence that it would avoid the substantial disadvantage caused by the PCP in the light of the claimant’s disability were never identified.

 

34.          It follows that, as the Tribunal approached his letters, Dr. Tidley did not recommend any specific features that an alternative job should have, save that it was indeed alternative to the claimant’s contracted one of nurse therapist.  When it referred in paragraph 66.6 to redeployment “in line with Dr. Tidley’s advice” it must therefore have been referring to general advice that the claimant should be redeployed to some suitable alternative job.  This is indeed unspecific.

 

35.          We have looked at the letters from Dr. Tidley contained within our papers, to see if they might legitimately bear this understanding.

 

36.          In his letter of 25^th May 2011 Dr. Tidley recommended alternative work, initially on a temporary basis, to be considered to be an adjustment in line with the Equality Act 2010, but other than recommending that she did not return to her former post he did not wish to recommend any particular parameters in relation to this.  When, therefore, in his letter of 22^nd June 2011 he confirmed that he would support return to work in a temporary posting and “in line with the advice I have provided to date”, adding that he had no other recommendations about any specific adjustments or measures to support her return to work, the Tribunal must have understood his advice as being that a change of workplace could (thought not necessarily would) be appropriate on a temporary basis. 

 

37.          Mr Allsop relied on Project Management Institute v Latif [2007] IRLR 579 EAT.  Although criticism of the Tribunal’s decision in that particular case was dismissed on the facts, the Appeal Tribunal said:

“53… It seems to us that by the time the case is heard before a Tribunal there must be some indication as to what adjustments it is alleged should have been made.  It would be an impossible burden to place on a Respondent to prove a negative; that is what would be required if a Respondent had to show that there is no adjustment that could reasonably be made.  [Counsel for the Claimant] is right to say that the Respondent is in the best position to say whether any apparently reasonable adjustment is in fact reasonable given his own particular circumstances.  That is why the burden is reversed once a potentially reasonable adjustment has been identified…

 

54… The Claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred absent an explanation, that it has been breached.  Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty.  There must be evidence of some reasonable adjustment which could be made. 

 

55  We do not suggest that in every case the Claimant would have had to provide the detailed adjustment that would need to be made before the burden would shift.  However, we do think that it would be necessary for the Respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not”

 

 

 

 

38.          Mr Roberts, for his part, argued that all that was necessary was that the broad nature of the adjustment be identified.  It had been here.

 

39.          We note that in Latif the Tribunal had misdirected itself by holding that the employer was under a legal duty to carry out a proper assessment of the adjustments that might be made, but the Appeal Tribunal accepted (at Paragraph 35 of the judgment) that, although a failure to carry out a proper assessment was not itself a breach of the duty to make a reasonable adjustment, it might well result in a Respondent failing to make adjustments which he ought reasonably to make, and a Respondent could not rely on that omission as a shield to justify a failure to make a reasonable adjustment which a proper assessment would have identified.

 

40.          In the light of these considerations, save for one point, we reject the Respondent’s criticisms of the judgment here.  As the Appeal Tribunal recognised in Rowan, an identification of a comparator is appropriate “where necessary”.  This is a test driven by context.  Where the effect of a PCP is that an employee cannot continue to work in her previous post it is plain that those who do not suffer from her disability would generally be capable of doing so.  In such circumstances it is unnecessary to say that others, not suffering from her disability, would not be affected by the PCP of being required to turn up to work – it is self-evident.  Second, although the Tribunal should have analysed whether the disadvantage was substantial, in context it could have been nothing else: to be required to work at a job one cannot do is to be placed at a substantial disadvantage by comparison who do not suffer from the disability and can, accordingly, perform such work.  The nature, and the extent of the substantial disadvantage were self-explanatory.  Next, the Tribunal was in our view saying in Paragraph 66 that the Respondent should have dealt earlier than it did with identifying a redeployment possibility.  Its finding of fact at Paragraph 29.7 that in a large organisation such as that of the Respondent there were likely regularly to be available temporary and permanent postings of various sorts, and likely to be numerous opportunities for re-deployment “from this time onwards” relates to the period following 15^th April 2011.  Given this finding of fact, which could not be said to be perverse, that there would have been opportunities for re-deployment of the Claimant, the Respondent can no more claim here that its omission to identify a possible opportunity between April and July 2011 was a shield to justify a failure to make a reasonable adjustment any more than could the Project Management Institute in the Latif case.

 

41.          However, the Tribunal’s judgment was nonetheless flawed:  it posed as a question which it had to address (at Paragraph 66.3) whether “any of the adjustments proposed would have alleviated [the] disadvantage…”.  It never answered that question, yet by posing it as necessary for answer recognised that an answer was required.  At Paragraph 66.4 it said, instead:

“In our judgment a major issue was the re-deployment of the Claimant. In particular the Tribunal are concerned about the Respondent’s tardiness and restrictive approach to dealing with the issue of re-deployment.  It appears to the Tribunal that there is sufficient evidence for us to conclude that the failure to re-deploy the Claimant had some impact on the deterioration of the Claimant’s health, although this evidence comes from the Claimant and not a medical source.”

 

 

42.           This is not a finding that the adjustment would have alleviated the disadvantage.  It is, rather, a finding that a failure to make any adjustment by redeployment had “some impact” (presumably adverse) on the Claimant’s health.  It does not find that the Claimant (given her psychiatric state) would be able to sustain work in a redeployed post, especially without at least some evidence of the nature a redeployed post would have to have if it were to alleviate the disadvantage caused by the PCP.  Accordingly, Paragraph 66.4 was no answer to the question posed.  There was no other answer.  The Tribunal’s judgment fell short. 

 

43.          Though we do not rule out the possibility on the facts that at some time between mid April and the end of July 2011 Abertawe could have made an adjustment by re-deploying the Claimant to a job which she could, consistent with her medical condition, have continued to perform, such that failure to make that re-deployment was a breach of it duty, the Tribunal’s conclusion as expressed was in error for the reason we have given.

 

44.          Ground 5 complained that the Tribunal was wrong to hold that the remark of Wendy Anthony described at Paragraph 17.2.5 could amount to unwanted conduct within Section 26 of the Equality Act 2010, and, secondly and separately, that to hold in Paragraph 65.1.1 that what was said amounted to “accusatory remarks” in the plural when only one remark had been identified in evidence was perverse.  Thirdly, it was wrong to find that the remark created the prohibited environment, since it was raised in a non-aggressive manner in the context of a meeting convened to consider the Claimant’s fitness absence and history of her depression which had not previously been discussed with Wendy Anthony.  Fourthly, an “environment” was more than the happening of an incident for as long as that incident lasted: it was, rather, a state of affairs (as recognised in Weeks v Newham College of Further Education [2012] EqLR 788 at Paragraph 21): although it may be created by an incident, the effects are of longer duration.

 

45.          The legal test is that set out in Section 26 of the Equality Act 2010.  The Tribunal directed itself to this Section [49].  For a manager to accuse an employee of failing in her duty to the employer, when as here the contrary was the case (see Paragraph 10) is plainly capable of being unwanted behaviour within the Section.  Wendy Anthony’s conduct did not have the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, but the Tribunal thought would have made “a reasonable person uncomfortable”.  That conclusion was open to it: but it is not clear whether the Tribunal was referring to the Claimant being uncomfortable during the course of the interview or more generally.  There is no finding of fact in Paragraph 65 that there was any on-going effect of the accusation – for instance, that the Claimant dwelt upon it, or felt under suspicion from her employers thereafter.  Given the absence of any discussion of consequence, it appears that the Tribunal might have had in mind that the “environment” spoken of was that restricted to the interview itself, at which it was entirely open for it to hold that the Claimant was uncomfortable, and the atmosphere that described in Section 26 (1) (b) (ii).  We accept that the Tribunal did not address the law as set out at Paragraph 21 in Weeks.  Accordingly, we consider that the Tribunal has here said insufficient to demonstrate to us that it had the appropriate legal test in mind. 

 

46.          “Virtually ignoring” the grievance which the Claimant raised, was, by contrast, conduct undoubtedly persisting over a period. 

 

47.          Ground 6 argues that treating the Claimant in a way in which the uncertainty created was likely to exacerbate her condition, and leading to a sense that the Respondent considered her complaint and her disability unimportant could not be an intimidating, hostile, degrading, humiliating or offensive environment. 

 

48.          In our view it is undoubtedly open to a Tribunal to hold that where an employer conducts itself so that one of its employees, suffering a serious depressive condition, reasonably considers that the employer treats her condition as unimportant, this is capable of creating a humiliating and offensive environment.  For an employer to belittle a serious condition is not only capable of coming within the description, but likely to do so.  We reject this ground of appeal.  No error of law has been shown: the argument is essentially that the Tribunal was perverse to find as it did, which the argument goes nowhere near to establishing.

 

49.          In Ground 7 Mr Allsop complains that the Tribunal in Paragraph 67 did not identify when each cause of action accrued (though it appeared to regard them as separate and recognised that each was out of time).  Secondly, it failed to take into account the factors set out in British Coal Corporation v Keeble [1997] IRLR 336, at paragraph 8, as to the circumstances at the time when each cause of action accrued, and those when the primary limitation period expired.  Thirdly, the Tribunal did not say why it was that the Claimant had missed each time limit, and why in respect of each complaint she had not acted earlier than she did.  Fourthly, and finally, he argued that the exercise of the Tribunal’s “just and equitable” discretion should have been tailored to each cause of action individually, and reasons given: instead, the Tribunal merely summarised the matter in Paragraph 67.7 by balancing the minimal prejudice to the Respondent with the “prejudice to the Claimant of losing her right to well-founded claims”, referring to her significant mental health difficulties in dealing with daily life, but without detail.

 

50.          Mr Roberts in his skeleton argument sufficiently answers all these points, save one.  We accept, as he submits, that the precise date of an act or omission may not be material to the question whether an extension of time should be granted, especially where a continuing duty such as that to make reasonable adjustments is under consideration.  The checklist in Keeble is a useful checklist, but not a statement of statutory requirements (see Southwark London Borough v Alfolabi [2003] IRLR 220) and we accept that it may not always be appropriate to give more than summary reasons for a conclusion that it was just and equitable to extend time – here, the Tribunal focussed upon the fact of the Claimant’s disability, and the greater prejudice to her.  We accept also that there is a very wide latitude within which a Tribunal may properly exercise its discretion to extend time on the basis that it is “just and equitable” to do so.  A decision to this effect will only be upset on appeal if the Tribunal has directed itself wrongly in law, by failing to take into account some relevant consideration, taking into account an irrelevant consideration, or reaching a conclusion to which no reasonable Tribunal could come.

 

51.           However, what Mr Roberts conspicuously did not answer was the failure of the Tribunal to identify the reason why the Claimant had not submitted the claims in time.  Moreover, we accept that in the circumstances of this case, where the complaints in respect of harassment by Wendy Anthony and Laura Keighan, disability related discrimination, and a failure to make reasonable adjustments were all discrete claims in respect of which different reasons were likely to apply arising on different dates from as long before the applications as 14^th October 2008 it could not simply be assumed that the effect of her disability was such that she could not reasonably make the claims earlier than she did.

 

52.          Though there is no principle of law which dictates how sparingly or generously the power to enlarge time is to be exercised (see Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 at para 25, per Sedley LJ) a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to do so, and the exercise of discretion is therefore the exception rather than the rule (per Auld LJ in Robertson v Bexley Community Centre [2003] IRLR 434 CA).  A litigant can hardly hope to satisfy this burden unless he provides an answer to two questions, as part of the entirety of the circumstances which the tribunal must consider.  The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and insofar as it is distinct the second is reason why after the expiry of the primary time limit the claim was not brought sooner than it was.  The Tribunal here simply did not address these questions directly.  The reasons could not be assumed.  Further and separately, the Tribunal thought the matter was finely balanced, and one matter which tipped things in the Claimant’s favour was the fact that the claims were well-founded.  In the light of the conclusions we have reached on the appeal thus far, holding that the claim for disability related discrimination fails, that the reasonable adjustments claim after August 2011 cannot stand, that there was no finding that the postulated adjustment prior to August 2011 would have made a difference, and the claim in respect of the complaint against Wendy Anthony is questionable, this can no longer be said.  The Tribunal therefore took into account an erroneous perception of the strength of the Claimant’s case: perhaps because of the ripple effects of its misreading of Dr. Tidley’s report of August 2011.

 

Conclusions

53.          With the exception of Ground 6 (the finding in respect of Laura Keighan, in respect of which the time issue remains) the appeal is allowed against all the findings in favour of the claimant.  The decision to uphold the claim of discrimination arising from disability pursuant to Section 15 Equality Act 2010 was not well founded, and must be reversed.  The claim of discrimination based on a failure to make adjustments pursuant to Section 20 of the 2010 Act must also be reversed insofar as it relates to the period after August 2011.  As to the period between April 2011 and August 2011, the appeal as to adjustments must be allowed, but the issue remitted for it to be argued whether the evidence showed that a postulated redeployment would have avoided the adverse effect of the PCP so far as the claimant was concerned. 

 

54.          The claim of harassment insofar as it relates to Wendy Anthony must be remitted for further consideration: did the incident create the proscribed environment, extending beyond an immediate and short-lived reaction to the accusation made?  That in relation to Laura Keighan is allowed only insofar as the decision is affected by the decision to extend time.

 

55.          The issue of time cannot be determined by us: it will require to be determined again by the Tribunal on and following remission, in respect of each claim separately, in the light of all the circumstances but in particular the reasons advanced by the Claimant for not making that claim earlier than she did, and drawing any balance influenced by the supposed strength of the claims in the light of the conclusions reached by the end of the hearing including those on this appeal. 

 

The Remission

56.          At the remitted hearing, we see no need for any further evidence to be given.  The Claimant was represented and it was for her to prove her case. 

 

57.          Accordingly, the Tribunal should with the benefit of further submission be able to identify whether it is satisfied that there were adjustments which it would be reasonable for the employer to have to make, which would probably have avoided the substantial disadvantage caused to the Claimant from the PCP.  The period of enquiry is that between April 2011 and August 2011.  The Tribunal will wish to consider what reasons, if any, were advanced previously by Ms Morgan for her failure to submit her claims timeously.  If no reason was advanced it would be entitled to infer that there was no good reason, and evaluate the question of whether it would be just and equitable  to extend time in the light of that consideration.  It must, in the light of our conclusions, and its further conclusions on the matters we have remitted, consider again the balance of prejudice to which it referred in its earlier judgment.