United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0296/16/BA

 

 

EMPLOYMENT APPEAL TRIBUNAL

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

 

 

                                                                                                             At the Tribunal

                                                                                                             On 25 & 26 April 2017

 

 

 

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

 

 

 

 

 

 

MRS C WEST                                                                                                            APPELLANT

 

 

 

 

 

THE ROYAL BANK OF SCOTLAND PLC                                                           RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR RICHARD ALFORD (of Counsel) Direct Public Access
For the Respondent	MR PARAS GORASIA (of Counsel) Instructed by: Pinsent Masons LLP 3 Colmore Circus Queensway Birmingham B4 6BH

 

 

SUMMARY

DISABILITY DISCRIMINATION

 

1.               The Employment Tribunal did not err in law in finding that the Claimant had not established a PCP in respect of her allegation of failure to make reasonable adjustments concerning ergonomic assessment.  Grounds 2 and 5 dismissed.

 

2.               The Employment Tribunal did not give sufficient reasons on the question whether a changed Occupational Health report was “something arising from [the Claimant’s] disability”, and may have adopted a wrong legal approach: Basildon and Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305 and Pnaiser v NHS England [2016] IRLR 170 considered and applied.  Ground 1 allowed.

 

3.               The ET erred in failing to consider and apply PCPs in respect of the Share Save Scheme which the Claimant had pleaded; and in finding that a term of the Respondent’s final salary Pension Scheme, which had not changed and had always been applicable to her employment, has not been applied to her.  Grounds 3 and 4 allowed.

 

HIS HONOUR JUDGE DAVID RICHARDSON

 

Introduction

1.               This is an appeal by Mrs Christina West (“the Claimant”) against a Judgment of the Employment Tribunal sitting in Manchester (Employment Judge Sherratt, Mrs Roscoe and Dr Salim) dated 5 November 2015.  By its Judgment the Employment Tribunal dismissed claims of disability discrimination and unfair dismissal, which she brought against the Royal Bank of Scotland plc (“the Respondent”).

 

2.               Following a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 five grounds of appeal were allowed to proceed to this Full Hearing.  Four grounds concern disability discrimination.  The final ground concerns unfair dismissal.  This ground is dependent upon the second ground, which concerns an alleged failure by the Respondent to assist the Claimant during a period of redeployment.

 

The Background Facts

3.               The Claimant commenced employment with the Respondent on 15 April 1985.  She worked full-time until November 1998 and then, again, after periods of maternity leave and part-time working, full-time from January 2009.  By this stage she had been for some time a Business Control Manager, a role which involved travel to and from branches in the North of England.  She lived in Bury, Lancashire.  During a reorganisation in 2009, she was reassigned to a corporate division covering England and Wales.  She was concerned at the amount of travel, bearing in mind that she had two young children, but she began to work in the new division.

 

4.               The Claimant had first suffered from symptoms of neck and back pain, diagnosed as cervical spondylosis, in about 2003.  The symptoms became much worse following a fall in November 2009.  She was off work from 30 November 2009 until 1 March 2010.  It is not in dispute that from this time onwards she was, by virtue of her cervical spondylosis, a disabled person for the purposes of the Equality Act 2010.

 

5.               The Claimant’s return to work in March 2010 was on a phased basis working two hours per day.  An Occupational Health report was commissioned.  The report by Dr Mattison, dated 9 April 2010, advised that travelling and carrying equipment were likely to aggravate her symptoms.  She was better suited to a role at a fixed base with an appropriate chair and workstation and it was unlikely that she would be able successfully to continue in her present role.  The Claimant’s line manager told her that the team she was in could not support her on a non-peripatetic basis in the long term.

 

6.               As a long-serving employee of the Respondent, the Claimant was entitled to sick pay for up to 12 months.  She was also eligible, so long as she met the criteria, to benefit from the Respondent’s long-term disability scheme (“the LTD Scheme”).  It potentially provided her with 55% of her salary for up to 4½ years, but it was a term of the Scheme that she must give up her existing role as a condition for joining.

 

7.               In June 2010 at the Respondent’s instance, the Claimant began a further period of sick leave.  She was first referred to the Respondent’s redeployment program for three months.  At the end of this period she remained on sick leave while she was referred back to Occupational Health.  In November 2010 the Occupational Health doctor recommended her for the LTD Scheme.  She signed her acceptance and joined the Scheme with effect from 3 February 2011.  So, from that date, while she remained an employee of the Respondent, she was no longer a Business Control Manager.

 

8.               A little over one year later, on 21 March 2012, there was a further report on the Claimant’s health, this time from Dr McNamara, a consultant in occupational medicine.  He said that the Claimant should be able to work 20 to 25 hours per week and that work should be found for her where she could be based entirely in an office environment.  The effect of this was that Aviva, who administer the LTD Scheme, considered that she did not meet the definition of capacity.  Following this report the Respondent ceased to make payments to the Claimant in about August 2012.  From that time onwards, therefore, she had no income from the Respondent.

 

9.               Following lengthy correspondence, arrangements were made for a further Occupational Health report.  It was broadly to the same effect as before.  The Claimant could return to work subject to a series of adjustments, which included a phased return, a “full ergonomic workstation assessment with particular attention being paid to mouse, keyboard, chair and the ability to use voice recognition software”, and a reduction in the need to drive long distances.

 

10.            The Respondent had been inviting the Claimant to join the redeployment program since November 2012.  The further report was received in February 2013.  Much correspondence ensued on a variety of points.  Eventually in October 2013 the Respondent placed the Claimant on a period of redeployment for 16 weeks until January 2014.  She was sent some 29 potential jobs and told that if she expressed interest, and provided she met the minimum standards for the role, she would be considered on a non-competitive basis.

 

11.            The Claimant did not engage in this redeployment process at all.  She told the Employment Tribunal that she had decided not to do so by May 2013, having lost confidence in the Respondent.  At the time her stance was to raise various points of objection.  She said in particular that she wanted a full ergonomic workstation assessment prior to the period of redeployment.  She was offered a workstation assessment for her home and assured that once her new role was secured the Respondent would address all her specific needs concerning specialist equipment and adjustment, but these could not be determined until the details, requirements and location of the new role were known.  The Claimant rejected a workstation assessment at home because, she said, she did not wish to have any further equipment provided at home.  The Employment Tribunal also noted that the Respondent was willing to have an assessment carried out at its office in Bury, although that office was going to be used by the Claimant for use in a search for employment if she wished to undertake it.

 

12.            The Claimant had also been asking since at least August 2012 whether if she took a job on redeployment she would be able to keep her existing salary for the purpose of calculating her pension entitlement, which depended on final salary.  The Respondent’s stance was that she would not.  There was, however, a term in the Respondent’s final salary Scheme that the Respondent would use the best salary in the ten years preceding retirement.

 

13.            In the result, the Claimant did not follow up any of the 29 potential jobs or engage in the redeployment process in any positive way.  In due course, following the expiry of the redeployment period, she was asked to attend a meeting and told that dismissal may be the outcome.  On 16 April 2014 she was dismissed with 12 weeks’ pay in lieu of contractual notice.  She appealed against her dismissal.  Her appeal was rejected on 25 July 2014.

 

The Employment Tribunal Proceedings and Reasons

14.            The Claimant represented herself throughout the Employment Tribunal proceedings.  She brought two claims: one in 2013 and one in 2014, which were heard together.  At a Preliminary Hearing relating to the 2013 claim, the Claimant was asked to produce a schedule setting out the nature of her disability discrimination complaints.  She did so under seven headings.  They set out, in broad terms, the nature of her claims but did not analyse them in terms of the provisions of the Equality Act 2010, although headings were given as to the type of claim made.  Given that the Claimant was acting in person, it was not surprising that she did not analyse the claims in legal terms, but it was to cause difficulty later.

 

15.            The Employment Tribunal hearing started between 5 and 7 May 2015 but was postponed by a bereavement.  It resumed between 12 and 15 October.  Both parties provided written submissions but, again, not surprisingly, the Claimant did not deal with legal issues in her submissions.  In the course of oral submissions the Employment Tribunal engaged in discussion with the parties about the “provision, criterion or practice” (“PCP”) which was being alleged.  The Employment Tribunal noted that the Claimant was not able to put forward any particular PCP in relation to the reasonable adjustment claims but said it would “give consideration to them nonetheless”.

 

16.            The Employment Tribunal made detailed findings of fact in paragraphs 3 to 73 of its Reasons, set out statutory provisions, and then turned to its conclusions on the seven allegations of discrimination in paragraphs 80 to 103.  I will deal individually with the Employment Tribunal’s reasoning in respect of the four issues which are the subject of the appeal, but I should make it clear that the Employment Tribunal found it would not have been reasonable for the Respondent to have amended the Business Control Manager role so that the Claimant could do it from a base location and without travel (see paragraph 98 of its Reasons; not the subject of appeal).  Hence, if the Claimant was to stay in employment some other role had to be found for her.

 

17.            On the footing that there had been no disability discrimination, the Employment Tribunal turned to the unfair dismissal claim and found that dismissal was for some other substantial reason and was fair.  It is sufficient to quote two passages from its Reasons to indicate its conclusions:

“106. … We do, however, consider that the reasoning amounts to some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held i.e. in this case a position where she remained an employee of the respondent but without any formal role in the circumstances where following two periods of redeployment and a period on long-term disability the claimant had not found alternative employment.  We bear in mind the substantial steps taken by the claimant’s then manager to provide her with details of possible roles and the fact that the claimant, for her own reasons, did not see fit to make [an] application for any of them, notwithstanding the fact that she was told that she could apply on a non competitive basis should she meet the basic criteria for the role.  The Bank never needed to get so far as this because no application was put in by the claimant.

107. … We have set out above the steps taken by the employer with regard to making the claimant aware of potential alternative employment opportunities.  We have set out the claimant’s failure to respond to that which was sent to her.  We have noted the claimant was not in a role, although she remained an employee of the company.  As was stated by the management, an impasse had been reached and what else could they have done given the seeming intransigence on the part of the claimant?  In our view in all the circumstances the decision to dismiss the claimant was reasonable and fair in these particular circumstances, notwithstanding the fact that she remained a person with a disability.”

 

18.            Against that background I turn to the disputed issues.

 

Ground 1

The Employment Tribunal’s Findings.

19.            The first heading in the Claimant’s schedule concerned the stoppage of pay under the LTD Scheme.  She said that, as a result, she had no employment or pay from that time onwards, resulting in severe financial hardship and stress.  The type of discrimination was said to be discrimination arising from disability.  She said she should have remained on payments under the LTD Scheme or had her salary reinstated.  The Employment Tribunal’s reasoning concerning this issue is set out at paragraphs 87 to 90:

“87. In the first allegation, alleging discrimination arising from disability, there is no doubt that the respondent was aware that the claimant was a person with a disability.  What is the unfavourable treatment the claimant complains of?  It seems to be that she was not paid after coming off the LTD scheme.  Not being paid is no doubt unfavourable treatment.  Did this therefore arise in consequence of the claimant’s disability or for some other reason?

88. In his submissions Mr Gorasia contends that the lack of pay was unconnected with disability per se and did not arise in consequence of her disability, but rather due to her intransigence and failure to engage with the redeployment process.  Had she engaged then she would have found a remunerated role.

89. We ask ourselves what was the reason why the claimant was not in receipt of an income from the Bank?  The claimant went on to the LTD scheme in late 2010 or early in 2011 having met the criteria laid down and with her disability.  On doing so she gave up her role.  She came off the LTD scheme in October 2012, still with her disability but without a role, with the reason being that occupational health advice was to the effect that she no longer fulfilled the insurer’s definition of incapacity.

90. We find that the claimant was not in receipt of an income because having relinquished her former role and the salary that went with it she was removed from the LTD … scheme because [the] Occupational Health advice was to the effect that she no longer qualified for it notwithstanding her continuing disability.  In our judgment the change does not arise from the claimant’s disability which continued but from the occupational health advice which altered.  We therefore conclude that the unfavourable treatment was not because of something arising in consequence of the claimant’s continuing disability.”

 

Statutory Provisions

20.            It is unlawful for an employer to discriminate against an employee in respect of the employee’s terms of employment, in the way the employer provides access to any benefit or by subjecting the employee to any other detriment; see section 39(2) of the Equality Act 2010.

 

21.            Discrimination arising from disability is defined by section 15:

“(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.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

 

 

 

Submissions

22.            On behalf of the Claimant, Mr Richard Alford submits that the Employment Tribunal did not apply section 15(1) correctly or else gave insufficient reasons for its conclusion.  It concentrated on the reason for loss of salary without giving any reason for its conclusion that the “something”, the changed Occupational Health advice, arose from her disability.  On any view, the changed Occupational Health advice was something arising in consequence of her disability.  The Employment Tribunal ought to have resolved that question in her favour and turned to the question of justification under section 15(1)(b), which it did not do.  He relied on two important recent decisions of the EAT concerning section 15: Basildon and Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305 and Pnaiser v NHS England [2016] IRLR 170.

 

23.            On behalf of the Respondent, Mr Paras Gorasia makes three submissions.  Firstly, he argues that the Employment Tribunal’s reasoning was sufficient.  It was not required to consider the elements of section 15 in any particular order (see Weerasinghe at paragraphs 26 and 27).  Secondly, the Claimant did not identify the “something arising in consequence of her disability” on which she relied or advanced any positive case as to how she had been treated unfavourably because of it.  Thirdly, removal from the LTD Scheme was not “something which arose in consequence of her disability”.

 

Discussion and Conclusions

24.            The starting point for the Employment Tribunal was to identify the treatment alleged.  It found that the treatment was that she was not paid from the time when she was taken off the LTD Scheme.  That was indeed what the Claimant was alleging.  The next question for the Employment Tribunal was whether this treatment was unfavourable.  It found that it was.  I have heard no argument to the contrary.  Plainly, the Claimant had the expectation when she went on to the LTD Scheme that she might receive a proportion of her pay for up to 4½ years.

 

25.            The Employment Tribunal then had to decide whether this unfavourable treatment was because of something arising in consequence of her disability.  This involves consideration of two linked types of causation explained in Weerasinghe and Pnaiser.  It will suffice to cite the helpful summary in paragraph 31 of Pnaiser:

“(a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B.  No question of comparison arises.

(b) The tribunal must determine what caused the impugned treatment, or what was the reason for it.  The focus at this stage is on the reason in the mind of A.  An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case.  Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case.  The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant.  The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport [1999] IRLR 572.  A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises, contrary to Miss Jeram’s [for the Respondent] submission (for example at paragraph 17 of her skeleton).

(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is ‘something arising in consequence of B’s disability’.  That expression ‘arising in consequence of’ could describe a range of causal links.  Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall [v Chief Constable of West Yorkshire Police [2015] IRLR 893]), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link.  In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) For example, in Land Registry v Houghton UKEAT/0149/14, [2015] All ER (D) 284 (Feb) a bonus payment was refused by A because B had a warning.  The warning was given for absence by a different manager.  The absence arose from disability.  The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met.  However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(g) Miss Jeram argued that ‘a subjective approach infects the whole of section 15’ by virtue of the requirement of knowledge in s.15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability.  She relied on paragraphs 26-34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages - the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability.

(h) Moreover, the statutory language of s.15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability.  Had this been required the statute would have said so.  Moreover, the effect of s.15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15.

(i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed.  Depending on the facts, a tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of ‘something arising in consequence of the claimant’s disability’.  Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment.”

 

26.            As we have seen, the unfavourable treatment was failing to pay her.  The next question the Employment Tribunal answered was: what was the reason why the Respondent did not pay her?  The Employment Tribunal dealt with this in paragraphs 89 to 90.  She was removed from the LTD Scheme because the Occupational Health advice was that she no longer qualified for it.  The “something” which the Employment Tribunal found was, therefore, that the Occupational Health advice was that she no longer qualified for the benefit. 

 

27.            The next question for the Employment Tribunal was, therefore, whether this “something” arose from the Respondent’s disability.  The Employment Tribunal stated a conclusion on this question.  In its reasons, it found that the “change”, which I think must mean the new Occupational Health advice given in 2012, “does not arise from the claimant’s disability which continued but from the occupational advice which altered”.  In my judgment, this very short conclusion is insufficiently reasoned to stand and may well rest on an error of law.  On the face of it, the Occupational Health advice received both in 2011 and 2012 was something arising from the Claimant’s disability.  It was, after all, commissioned to establish the extent and consequences for work of that disability.  The Employment Tribunal did not explain why it reasoned to the contrary and there was a real risk that it may have fallen into the error of construing the words “something arising from B’s disability” too narrowly.

 

28.            The guidance in Pnaiser at paragraph 31(d), building upon all against Hall v Chief Constable of West Yorkshire Police [2015] IRLR 893 is apposite at this point.  The causal link between the something and the disability may have more than one element.  No doubt the first element here was the Occupational Health advice, but this was obtained precisely in order to access the Claimant’s disability and, if so, if the overall picture is kept in mind, the Occupational Health advice would indeed appear to be something arising from the Claimant’s disability.  At all events, the Employment Tribunal has not explained its conclusion so the appeal on this point must be allowed.

 

29.            On well-established principles, the EAT may substitute its own conclusion on such a question only if the error of law could not have affected the result or the EAT can say what the correct conclusion must be without any factual assessment of its own (see Jafri v Lincoln College [2014] ICR 920).  On the limited papers I have, I do not think I can go so far as to say that the ET was bound to find that the “something” arose from the Claimant’s disability, although the case appears to me to be strong. 

 

30.            In any event, the ET will have to address section 15(1)(b) and I am certainly in no position to reach a conclusion on section 15(1)(b) on the papers which I have.  The aim of adhering to the LTD Scheme limits would no doubt be legitimate, but whether the treatment of the Claimant was disproportionate may depend on the terms of the Scheme, the findings of the medical reports, whether there was a conflict between them and what steps the Respondent took to resolve it, and other points which the Claimant made.  So, the matter must be remitted for rehearing and, on rehearing, the Employment Tribunal will, to my mind, be wise to make findings both on section 15(1)(a) and 15(1)(b).

 

Ground 2: Assistance During Redeployment Period and Reasonable Adjustment

The Employment Tribunal’s Reasons

31.            The second heading in the Claimant’s schedule concerned the alleged failure of the Respondent to conduct a full ergonomic workplace assessment.  She said she could not apply for any roles if she did not know how voice recognition software would interact with the Respondent’s software or how productive or effective modified equipment would be.  Therefore, she said, she had no employment and no prospect of obtaining employment until a workstation assessment was undertaken.  The type of discrimination was said to be failure to make reasonable adjustments.

 

32.            The Employment Tribunal’s reasoning on this issue is set out in paragraph 91 of its Reasons:

“91. Turning to the second allegation relating to failure to make reasonable adjustments, we considered with the claimant what the provision, criterion or practice might be, particularly as the claimant had relinquished her former role, making her an employee without a role.  Having discussed matters with the claimant and the respondent we are not able to conclude that there was any PCP in place that would require a full ergonomic workstation assessment to be carried out.  We are aware of the claimant’s desire to have a workstation assessment carried out, and the respondent’s view that they would carry out such an assessment once the claimant found a role so that they could tailor the assessment to the role she found.  In the absence of a role being found, and therefore the absence of a PCP, this allegation of failure to make reasonable adjustments does not have a foundation upon which it can be based so it fails.”

 

Statutory Provisions

33.            An employer owes to his employee a duty to make reasonable adjustments (section 39(5) of the Equality Act 2010); failure to comply is a form of discrimination (see section 21(2)).  Section 20 sets out the content of the duty:

“(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for these purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is 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.

(4) The second requirement is a requirement, where a physical feature 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.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid.

(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A’s costs of complying with the duty.”

 

Submissions

34.            On the Claimant’s behalf, Mr Alford criticises the failure of the Employment Tribunal to identify a PCP.  The concept of a PCP should be interpreted widely so as to give effect to the legislation and it was often possible to work backwards from the disadvantage to establish the PCP (see Nottingham City Transport Ltd v Harvey UKEAT/0032/12 at paragraphs 17 and 18).  The Employment Tribunal had a role to play in defining the PCP (see Secretary of State for Work and Pensions v Higgins [2014] ICR 341 at paragraphs 29 to 40 and Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 at paragraphs 46 to 47).

 

35.            Mr Alford accepts that the Claimant did not expressly define the PCP in her pleadings or schedule of allegations - I will return to this in a moment - but he says that her complaint of disadvantage was clearly discernible from the schedule.  He sought to define it in the course of his submissions and, again, I will return to that in a moment.  He says that the ET should have been able to define the PCP and it would then have been necessary for the ET to consider the remaining elements of the duty.

 

36.            Mr Gorasia replies that it was for the Claimant to prove the PCP alleged to have caused her disadvantage.  He took me to leading cases on this question, in particular, Project Management Institute v Latif [2007] IRLR 579 at paragraphs 44 to 45.  The Claimant was given every opportunity by the Employment Tribunal to assist it on this question.  She had been unable to do so.  It was not for the Employment Tribunal to step in and find a PCP of its own.  In attempting to do so at all, it had been doing its best to assist the Claimant.

 

Discussion and Conclusions

37.            The concept of a PCP is unlikely to be familiar to a layman, but it serves an important purpose in equality law, especially the law concerned with reasonable adjustments.  Its purpose is to isolate and establish that feature which the Claimant says causes the disadvantage which requires a reasonable adjustment.  Thus, in Higgins at paragraphs 34 to 35 the EAT said:

“34. In our experience the phrase still sometimes causes problems, as to some extent it appears to have done in this case.  It is, we think, important to keep in mind the whole of section 20(3).  The elements within it are designed to link together.  The purpose of identifying a PCP is to see if there is something about the employer’s operation which causes substantial disadvantage to a disabled person in comparison to persons who are not disabled.

35. The PCP must therefore be the cause of the substantial disadvantage.  Wide though the concept is, there is no pint in identifying a PCP which does not cause substantial disadvantage.”

 

38.            It is for a Claimant to identify and prove the PCP.  It is sufficient on this question to cite Latif at paragraphs 44 to 45:

“Burden of Proof

44. We turn to the final ground.  Ms Clement [for the Appellant] submits that the tribunal erred in its approach to the burden of proof.  This was specifically considered by the tribunal who were persuaded by Mr Epstein [for the Respondent] that the proper approach was as follows (para 4.11):

‘(a) Has the claimant proved facts from which it could be inferred that any provision, criterion or practice has placed her at a substantial disadvantage?  If so,

(b) Has the respondent on cogent evidence proved that

(i) there was no such provision, criterion or practice, or

(ii) the claimant was not at a substantial disadvantage; and

(iii) that there were no further or other steps that it could reasonably have taken in order to reduce or eliminate any such disadvantage?’

(Mr Epstein accepts that the word ‘and’ emphasised in that paragraph must be an error: even on his approach, it ought to be an ‘or’.  This is because the duty to make an adjustment does not arise if the other two conditions are not satisfied.)

45. We observe in passing that we very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice, or demonstrating the substantial disadvantage.  These are simply questions of fact for the tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the claimant.  These are not issues where the employer has information or beliefs within his own knowledge which the claimant cannot be expected to prove.  To talk of the burden shifting in such cases is in our view confusing and inaccurate.”

 

39.            There will, of course, be times when a claimant, who is a litigant in person, can and does establish a PCP without appreciating that such a concept even exists.  The PCP may be obvious from the disadvantage described (see Harvey at paragraphs 17 and 18).  It may be, and often is, a quite basic feature of the employment (see, for example, Griffiths at paragraph 47, where the PCP was the requirement of maintaining “a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions”).  It may be a written rule of some kind, obvious on the papers.  It is good practice for an Employment Tribunal to consider with a claimant, particularly a litigant in person, what the PCP is, when at a Preliminary Hearing or the start of a final hearing, it is confirming the issues to be determined.  If this has not happened it may not be too late for it to be identified during final submissions, though at this stage the Employment Tribunal must be alert to ensure the process is fair to both sides.  There are times when the PCP is obvious to both claimant and respondent and set out in the papers even if it is not labelled as such.

 

40.            There will, however, be cases where the claimant does not successfully identify or establish a PCP.  I have reached the conclusion in respect of this ground that the Claimant did not establish a PCP and that the Employment Tribunal made no error of law.  My reasons are as follows.

 

41.            It is, I think, clear that the Claimant was seeking to put forward the case that a “full ergonomic workplace assessment” should have been carried out before she could consider redeployment.  This was the Employment Tribunal’s understanding and it is consistent with the schedule where she describes her claims. 

 

42.            In my judgment, there was a fundamental internal inconsistency in the way in which the Claimant was seeking to put her case.  She had latched on to the Occupational Health advice that there should be a “full ergonomic workplace assessment” in the broad sense in which that was described in the report, which I have already quoted.  However, such an assessment can only be carried out if there was a potential workplace to assess.  If one posits as the PCP that when an employee is on redeployment a full ergonomic workplace assessment will only be undertaken when the employee has obtained a role, that PCP could not possibly place the Claimant at a disadvantage, for such an assessment can only be carried out in respect of an actual workplace, whereas the Claimant did not respond to any of the jobs suggested during redeployment or suggest any of her own.  It would not assist the Claimant to formulate a PCP which involves a failure to do that which is impossible. 

 

43.            Recognising this difficulty, Mr Alford took instructions and put his case in the following way.  What the Claimant required prior to considering alternative jobs, was that there should be a preliminary assessment to check, in particular, whether voice recognition software would function with the Respondent’s systems.  Only this would give her the confidence to engage in a redeployment process and seek specific jobs.  The PCP applied by the Respondent was that it would only undertake this limited assessment when she had obtained a role. 

 

44.            This alternative formulation will not suffice for two reasons.  Firstly, it was not the way the case was put below.  The Claimant was given every opportunity to define the PCP relied on and she did not do so; the Employment Tribunal did its best to assess her case by reference to the schedule which she had provided, which had referred to a full ergonomic workplace assessment, and it cannot be criticised as making an error of law because it did not formulate her case in this alternative way.  Secondly, the Employment Tribunal’s Reasons show that the Respondent was prepared to engage in assessment as far as possible before a workplace was established - by undertaking an assessment at home or a nearby office of the Respondent where she might use a desk (see paragraphs 45 to 48 of the Employment Tribunal’s Reasons).  The factual basis for the PCP was not established.

 

45.            I, therefore, reject ground 2.  I would add for the sake of completeness that there is a line of authorities, of which the best known is Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664, holding that failure to carry out an assessment does not, in itself, constitute a failure to make a reasonable adjustment.  This is a further problem with which the Employment Tribunal would have had to grapple if it found a PCP to exist.  Mr Alford suggests that Tarbuck might be distinguishable on the basis that in this case the assessment was required to enable the Claimant to have the confidence to apply for a job on redeployment.  That faces both factual and legal difficulties, not least factual difficulties given findings of the Employment Tribunal to which I have already referred about the Claimant’s reason for not cooperating with redeployment, but while noting this difficulty I need express no further view about it.

 

Ground 3: Pensionable Salary, Reasonable Adjustment and Indirect Discrimination

The Employment Tribunal’s Reasons

46.            The sixth heading in the Claimant’s schedule complained that if she found a role through redeployment paying less than her previous role, her pension would accrue at a lower rate.  She wished to retain the rate of accrual appropriate to her previous salary.  She said that a role with a lower salary would have a huge impact on her final salary at retirement.  This type of discrimination was said to be indirect discrimination and failure to make a reasonable adjustment.  The Employment Tribunal dealt with this complaint in paragraphs 99 to 100.  It said:

“99. With regard to the sixth allegation, this alleges indirect discrimination and failure to make reasonable adjustments in terms of pensionable salary.  The claimant accepted that the final salary for the purposes of pension would be the best earned in the last ten years of employment, but she pointed out that that salary would of itself have [increased] by whatever percentage general salaries within the Bank increased over that ten year period, thus giving her a higher final salary.  If she was in a lower paid job then in all probability she would not ever reach the highest final salary that she was paid in the old role.

100. As regards indirect discrimination and the duty to make adjustments, there are for both requirements for a provision, criterion or practice.  With regard to this allegation the claimant is referring to what might have happened had she found an alternative role with a lower salary.  Given that she did not then we are unable to support this prospective claim for indirect discrimination and/or failure to make reasonable adjustments.”

 

Statutory Provisions

47.            I have already set out statutory provisions relating to reasonable adjustments.  Indirect discrimination is defined by section 19 of the Equality Act 2010 as follows:

“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if -

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

 

Submissions

48.            Mr Alford submits that the Employment Tribunal erred in law by defining the PCP too narrowly.  There was no doubt that the Respondent’s rule was that final pension should be based on an employee’s salary, subject only to the ten-year rule.  Figures produced by the Claimant demonstrated how this might impact on her if she took a job at a lower rate of pay and stayed on it for ten years.  This PCP applied both before and after redeployment.  It applied to every employee including the Claimant.  Therefore, the Employment Tribunal ought to have found that the PCP was established and should have gone on to consider the remaining elements of section 19 and section 20.

 

49.            Mr Gorasia does not accept that there was any error of law by the Employment Tribunal in the way it considered the PCP, but he also submits that the Claimant did not establish that the PCP in question placed the Claimant or disabled persons at particular disadvantage when compared with persons who are not disabled.

 

Discussion and Conclusions

50.            There is no doubt that the Respondent had a rule that pension would be based upon final salary, by reference to the salary in the job an employee was actually doing at the relevant time, although the rule was modified to the extent that the best year of salary in the last ten would be taken.  This rule applied to the Claimant as it applied to everyone else and it was not modified if the Claimant or any other employee took a job after redeployment.  I have not heard any sustained argument on the meaning of the words “applied to” in section 19, words which are not found in section 20.  But, it seems to me, on any possible meaning of those words the rule that pension would be based upon an employee’s salary at the relevant time applied to the Claimant throughout her employment, including during her period of redeployment.  Accordingly, I accept the submission of Mr Alford that the Employment Tribunal ought not to have decided the case on the basis that the PCP was not applied to the Claimant until she found an alternative role with a lower salary.  It should have continued with its analysis of section 19 and 20.

 

51.            I turn to Mr Gorasia’s alternative submission that the Claimant could not establish the requisite disadvantage.  The Employment Tribunal made no findings about this and I do not have details of the Pension Scheme itself before me.  The EAT has a limited role in deciding questions of this kind (see Jafri v Lincoln College).  I can see that a scheme which defines pension by final salary might work hardship upon a person who has to take a less remunerative job for a period prior to retirement and that this might be particularly likely to impact on persons with a disability.  Whether that is the case here is a matter for findings by the ET.  Likewise, it is for the ET to decide whether any PCP was a proportionate means of achieving a legitimate aim or whether there was any step which it was reasonable for the Respondent to have to take to avoid the disadvantage.

 

Ground 4: Share Save Scheme, Reasonable Adjustment and Indirect Discrimination

The Employment Tribunal’s Reasons

52.            The seventh heading in the Claimant’s schedule relates to the Respondent’s Share Save Scheme.  The Employment Tribunal’s findings of fact did not deal specifically with this issue but her claim was put as follows in a passage which the Employment Tribunal quoted at paragraph 86:

“I was a member of my employer’s Share Save Scheme and in March 2009 purchased a five year share option with the ability to purchase shares at a favourable rate at the end of the five year period.  Payments were taken directly from salary but as I have been on a zero ill health scheme since August 2012 and have not received a payslip since April 2013, payments have not been deducted from my salary.  The scheme allows six missed payments with the ability to make any missed payments within the six month period.  Because I have suffered financial hardship by being on the zero ill health scheme I have missed seven payments and have been unable to make up the missing payments so therefore my contract has been cancelled.  Because I have no employment or pay I am unable to contribute to the Share Save Scheme.  I have received a cheque with a small amount of interest but have lost the ability to purchase shares in March 2014 at a favourable rate which may later increase in value if I had kept them as an investment.  My Share Save contract should have been frozen and I could have made up the missing payments when I obtained a role and started receiving a salary.  My employer should have asked if I wished them to contribute the amount per month on my behalf to be repaid once I had a role.  My contributions would continue and enable me to participate in the Share Save Scheme.”

 

53.            The Claimant also said that she had made 48 out of 60 payments but she had lost the right to acquire shares at a favourable rate because of the payments she had missed, although she had received the return of the payments she had made with some interest.  She has, therefore, on her case, lost out on some element of profit.

 

54.            The type of discrimination was said to be indirect discrimination and failure to make a reasonable adjustment.  The Employment Tribunal dealt with it in paragraphs 101 to 104 of its Reasons:

“101. With regard to the seventh allegation of indirect discrimination and failure to make reasonable adjustments to the Share Save Scheme as regards the indirect discrimination claim, the claimant has not dealt with the question of how “A” might apply the PCP to persons without a monthly salary with whom the claimant does not share the characteristic of disability.  In simple terms there is nothing before us to enable us to conclude that there was [an] act of indirect discrimination with regard to this scheme and its application to the claimant.

102. As to a failure to make reasonable adjustments, we ask ourselves what the PCP is and we presume that the PCP is the requirement on behalf of a member of a Share Save Scheme to make monthly payments into the scheme for each month that the scheme endures, in this case a five year scheme.

103. The claimant complains that she suffered financial hardship having come off the LTD scheme, but the lack of an income would not necessarily preclude her from making payments under the Share Save Scheme whilst she remained an employee.  We are aware that the claimant was not well placed financially because of the unfortunate circumstances surrounding both her and her husband but we have referred above to a letter dated 15 October 2012 in relation to the Share Save Scheme.  There was the possibility to make alternative arrangements as to payment, thus suggesting that any payment does not need to be made out of income.  Had the claimant had money available then she could have applied it to the Share Save Scheme had she so chosen.

104. In these circumstances we conclude that those employees of the Bank who were in the situation of the claimant in not being paid, for whatever reason, would not be in a position to make payments into the Share Save Scheme unless they had alternative resources.  Comparing the claimant with someone who does not have a disability, we cannot see that the claimant is at any greater or lesser disadvantage than any other employee who is for whatever reason without pay.”

 

 

Submissions

55.            On the Claimant’s behalf, Mr Alford submits that the Employment Tribunal should have analysed this issue in the structured way required by equality law.  The PCP was derived from the rules of the Scheme.  These rules generally required payment sourced from a payslip, permitted a short period of six months to make up any shortfall and allowed only six missed payments in total.  These rules should have alerted the Employment Tribunal to a potential disparate impact upon disabled persons in general and the Claimant in particular, in that disabled persons are particularly prone to long-term absence and reduced or nil pay.

 

56.            On behalf of the Respondent, Mr Gorasia submits that the Employment Tribunal’s Reasons are clear and it cannot be faulted for seeking to identify a PCP when the Claimant had been unable to do so.

 

Discussion and Conclusions

57.            In this case although the Claimant was not conversant with the concept of a PCP, she had plainly stated in her schedule, which the Employment Tribunal quoted, what the features were which caused her disadvantage.  She had in the course of the evidence addressed the features which caused her disadvantage and proved them.  The Respondent was on notice of them throughout.  In my judgment, the Employment Tribunal was wrong to “presume” that the PCP was the requirement to make monthly payments.  In this case the Claimant had expressly stated the features which caused her difficulty.  These were (1) the short period of six months to make up any shortfall, and (2) the maximum of six missed payments in total.  These were the PCPs and the Employment Tribunal had stated them itself in quoting the Claimant’s schedule.  I, therefore, consider that the Employment Tribunal started with the wrong PCP.

 

58.            I have some difficulty as well with the Employment Tribunal’s reasoning in paragraphs 103 to 104, which does not appear to grapple at all with the argument that disabled persons are particularly prone to long-term absence and reduced or nil pay.  I find it difficult to see what other persons the Employment Tribunal was in practice considering by way of comparison.  Very few, apart from disabled persons, would ever be employees with no pay, but the fundamental point is that the Employment Tribunal did not address the correct PCP.  Accordingly, on this point also the appeal will be allowed and the matter remitted for reconsideration.

 

Ground 5

59.            This ground is linked to ground 2 and must fail also.

 

Remission

60.            It follows that what will be remitted to the Employment Tribunal are three quite short discreet issues.  One is concerned with the stoppage of the Claimant’s pay from the LTD Scheme or after the LTD Scheme.  One is concerned with a pension element.  One is concerned with the Share Save Scheme.  Compensation for the first of these might be significant.  Compensation for the second and third is likely to be very limited.  The question arises whether to remit to the same or to a differently constituted Employment Tribunal.  Such a decision is taken in accordance with the criteria in Sinclair Roche & Temperley v Heard [2004] IRLR 763, to which I have had regard.

 

61.            On the whole I think these three discreet issues are best decided afresh by a newly constituted Employment Tribunal.  This is not because I doubt the professionalism of the present Employment Tribunal but it, and the parties, would be faced with attempting to extract what was relevant from papers and notes of evidence now nearly two years old and covering a host of issues which would be entirely irrelevant to the limited matters remitted.  That would be a difficult task for all concerned and, in particular, for the Claimant.  Moreover, the present Employment Tribunal has expressed views on two matters which will be remitted and, on the whole, I think a newly constituted Employment Tribunal is best.

 

62.            It would, I think, help if there is a short Preliminary Hearing, either by telephone or personally.  It would help if before this the Respondent prepares a list of issues which spell out the legal questions which the Employment Tribunal will have to determine.  It will help if before this the Respondent produces a proposed bundle which I think will be relatively short containing a fraction only of material.  It may well be desirable to have short witness statements which are dedicated to the points in issue.  I would also say that the sums involved are relatively small, if there is any prospect of mediation or settlement, now would be the time to consider it before further expenditure takes place.

 

63.            In summary, therefore, the appeal is allowed in relation to grounds 1, 3 and 4.  Those grounds are remitted to a freshly constituted Employment Tribunal to be considered in accordance with this Judgment.  Grounds 2 and 5 are dismissed.