Kenny v Hampshire Constabulary [1998] UKEAT 267_98_1410

EAT
Kenny v Hampshire Constabulary
[1998] UKEAT 267_98_1410 · 1998-09-18
MR JUSTICE MORISON (PRESIDENT) : This is an appeal against the unanimous decision of an industrial tribunal held at Southampton that the applicant, Mr Ian Kenny, was not unlawfully discriminated against contrary to the Disability Discrimination Act 1995 ['the Act'].

Facts

The facts as found by the tribunal are as follows:The appellant ['the applicant'] was born on 11 June 1970 and suffers from cerebral palsy. He is physically disabled within the meaning of the Act; but his intellectual capacity is unimpaired. He is a graduate and has obtained qualifications in the field of Information Technology. In October 1996 he applied for the post of Analyst/Programmer with the Information Technology Services Department ['the IT department'] of Hampshire Constabulary ['the respondents'].The applicant was interviewed on 18 November 1996 by Sergeant Kelly, the Project Manager, Mr Dowse the Technical Support Manager and Mrs Barnard, the Administration and Finance Manager in the IT department. Of the four interviewees, the applicant was regarded as the best candidate and on 20 November 1996 Mrs Barnard telephoned him and offered him the post, subject to the respondents being able to make appropriate arrangements for the applicant's needs. The applicant explained that he did not require special equipment to be fitted in the toilet but he needed to be accompanied to the toilet and assisted, but did not specify the details of this assistance.On his word processor the applicant had a statement setting out the assistance he required, which he handed to third parties as appropriate. It read:
"During the working day I need assistance when going to the toilet. This consists of holding the toilet bottle for me, emptying it when I have finished and helping me to sit back afterwards. I also require some assistance at lunch-time to open food packets and get the food out for me - but not with feeding."
The applicant did not supply this statement to the respondents at any stage.His actual needs were for someone to accompany him to the toilet and to hold a bottle in the correct position with the applicant's penis in the neck of the bottle so that he could urinate into it. The bottle would then be emptied and the applicant would have to be lifted back into his wheelchair.The Department of Social Security had classified the applicant as unemployable, but he has refused to accept that classification, and does not claim the Severe Disablement Allowance to which he is entitled. The respondents knew about the classification but were satisfied that his previous work history demonstrated that he could work satisfactorily provided that his toilet needs were met.Sergeant Kelly, who knew the applicant, suggested that the applicant's needs could be met by volunteers from within the IT department, and he prepared a rota of people who were willing to help. But the Sergeant omitted to specify the exact nature of the assistance that would be required.Mrs Barnard made her own enquiries about the feasibility of volunteers within the department. Of the 5 volunteers on the rota, 3 withdrew on learning the true extent of the assistance they would be expected to give, Sergeant Kelly had resigned, and the one other volunteer who would have been willing to be on the rota was unavailable for at least three days a week. Mrs Barnard also approached everyone (all female) who worked in her office, but none was prepared to provide the assistance required. She received the same response from a number of male officers she approached. During her inquiries, Mrs Barnard also discovered that any volunteer would have to be trained in the 'through arm pull' technique for lifting the applicant from the wheel chair and back onto it. Such training was necessary to prevent personal injury to the helper and would involve a half day training course, which could have been arranged without difficulty.The applicant suggested that a computer modem link be installed to enable him to work from home. This was rejected by the respondents because the applicant would still need to attend departmental meetings. Operational data of a sensitive nature would have to 'leave' the respondent's closed network; modem links were not secure, and there was a risk of infection from a computer virus.The respondents also considered whether the applicant's mother could attend during the day. They rejected it as impractical; the applicant was opposed to such an arrangement as it was an unreasonable burden for her and it was his desire to free his mother from her responsibility as a carer which motivated him to obtain employment outside the home.Mrs Barnard suggested to the applicant that he make an application for a support worker under the Access to Work Scheme. The applicant was contacted by Mrs Watson, a Disability Employment Adviser, who was a member of PACT (Placing, Assessment and Counselling Team) which deals with applications under the scheme.On 2 December 1996 the applicant, Mrs Watson, Mrs Barnard and Mrs Arnold (the respondents' personnel officer) met to discuss the provision of special equipment and a carer. As regards the applicant's toilet needs Mrs Watson confirmed that it was within the scope of the scheme to provide funding for support by work colleagues although that would have been unique in her experience. Due to the reluctance of work colleagues to give the applicant assistance in the toilet, Mrs Watson agreed that PACT would consider providing and funding outside care support, but rejected any suggestion that this could be provided on a full-time basis. The respondents were not made aware at the meeting that the maximum time allowed within the scheme for the determination of approval for funding was sixty working days.Following the meeting Mrs Arnold, Mrs Barnard and Mrs Brown were all involved in efforts to obtain a response to the application for assistance through the scheme. In exploring the possibility of obtaining outside care support for between 3 to 4 hours per day, Mrs Watson discovered that the funding would have exceeded the authority of the local manager, which was limited to a sum of £7,000 over 3 years. The application was therefore referred to the scheme's head office in London and Mrs Watson informed Mrs Arnold that the application would take some time and no response date was specified.By 13 December 1996 the respondents considered that there was an urgent need to finalise the position regarding the applicant's recruitment as Sergeant Kelly was working reduced hours and the Director of the IT department, Mr Young, had also resigned. As PACT could not give any positive information concerning the provision of a carer under the scheme, Mrs Barnard and Mrs Arnold decided that the conditional job offer to the applicant should be withdrawn. Mr Adamson, the Director of Personnel concurred with this and the applicant was informed by telephone, and a confirmation letter from Mrs Arnold was sent on 13 December 1996.The tribunal made the following findings:The applicant was a 'disabled person' as defined in section 1 of and Schedule 1, paragraph 4 to the Disability Discrimination Act 1995 ['the Act'] and the respondents' action of withdrawing the offer of employment was a potentially discriminatory act within the meaning of section 4(1)(c) of the Act.The respondents embarked on a bona fide exercise with the intention of confirming the applicant's appointment if it was found feasible to meet his care needs. It found that the respondents were willing and able to provide the facilities and equipment required by the applicant, but the only reason for failing to confirm the applicant's employment was the non-availability of the required personal care support, and in particular, the physical assistance required in the toilet. The tribunal found that this was a reason relating to the applicant's disability and that the reason for the applicant's non-employment was his disability and, therefore, was, unless justified, unlawful.The question which the tribunal asked itself was whether that treatment was justified pursuant to section 5(1), and whether the failure to comply with the duties under section 6 was justified under section 5(2), having regard to section 5(3) and 5(4) of the Act.The tribunal stated that the question they had to ask themselves was not whether it was reasonable to expect another person to assist the applicant in the toilet, but whether the respondents had shown a substantial reason, material to the circumstances of the case which justified their decision.The tribunal found that the applicant did not want his mother to be burdened with caring for him at work as well as at home and the respondents were justified in rejecting that option.They further found that the respondents gave full and proper consideration to the organisation of a rota of volunteer employees, but finally rejected the option because of the reluctance of employees to undertake the personal care required when the applicant visited the toilet. The respondents were justified in concluding that it was not safe to employ the applicant and rely on other employees assisting him in the toiletThe other option for the provision of care was under the Access to Work Scheme. The scheme was very new and the problem encountered by Mrs Watson, with regard to an employee requiring care support in the toilet, was novel in her experience. The tribunal found that, faced with the situation where a decision about funding an outside care assistant would take up to 60 working days, the respondents were justified in concluding that they could no longer rely on the scheme in relation to the employment of the applicant.The final option was for the applicant to work from home. The tribunal found that this was contrary to the applicant's objectives of relieving the burden of care currently on his mother and that the respondents were justified in concluding that a modem link was an unacceptable threat to keeping the police computer system and the sensitive material secure.The tribunal decision and this appeal raise a number of questions relating to the proper construction and application of ss.5 and 6 of the Act, which read as follows:Section 5 of the Act provides:
"(1)... an employer discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified.

(2)... an employer also discriminates against a disabled person if -

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and(b) he cannot show that his failure to comply with that duty is justified.(3) Subject to subsection (5), for the purposes of subsection (1), treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty."Section 6 of the Act provides:
"(1) Where - (a) any arrangements made by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer,
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect."(2) Subsection (1)(a) applies only in relation to -(a) arrangements for determining to whom employment should be offered;(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.Section 6(3) sets out examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1). Section 6(4) sets out factors for consideration when determining whether it is reasonable for an employer to take particular steps in order to comply with subsection (1).

Submissions

We now turn to the arguments of counsel which were presented with commendable clarity.The main submission on behalf of the appellant was that the tribunal compressed the question of reasonableness under section 6(4) with justification under section 5(2) and thereby failed to follow the guidance set out in Morse v Wiltshire County Court [1998] IRLR 352 . Where a breach of section 5(2) was alleged by the applicant, the steps leading to an adjudication are, first, do the matters complained of fall within section 6; second, if yes, was it reasonable for the employer to have take the steps referred to, having regard to the provisions of subsections (4) to (11) and any relevant Code of Practice; third, if yes, the employer has discriminated against the employee and is liable, unless he can show that his failure to comply with his section 6 duty is justified. Here, by moving straight to the defence of justification, the Industrial Tribunal failed to address its attention to the first two steps. The significance of this failure lies in the fact that section 6 requires the tribunal ["regard shall be had"] to various specific matters which well may interlink with, and shed light on how the question of justification should be answered. Whilst an employer might be justified in not taking a step which he reasonably could have taken, such a reasoning process would require full analysis. Thus, she submitted, the tribunal failed to consider whether it would have been reasonable for the respondents to adopt the options of using a rota of employees, of using a care worker under the Access to Work Scheme or allowing the applicant to work at home. It also failed to consider whether it would have been reasonable for the respondents to have taken temporary measures pending the outcome of the funding application. Instead the tribunal only considered whether those options could be justifiably rejected by the respondents, which was a breach of the guidelines set out in Morse and the Code of Practice.Mr Doughty accepted that the tribunal had failed to consider the factors set out in section 6 of the Act and had proceeded straight to the question of justification, and prima facie that would be an error of law. However, he submitted that if his cross appeal were accepted, then the tribunal would have been right not to consider the question of reasonableness in any event. In effect the tribunal would have come to the right conclusion albeit by the wrong route.Mr Doughty's contention on the cross-appeal was that section 6 of the Act did not apply and the tribunal had been wrong to state that "the provision of a person giving support is, for the purposes of this case, a step which an employer may have to take in order to comply to comply with section 6(1) of the Act". Section 6(1)(a) only applies to arrangements made by an employer in relation to the job undertaken by the disabled employee, which may have to be adjusted in order not to be discriminatory. An example of an arrangement falling within the Act would be an adjustment to a disabled employee's work timetable in order to allow him/her to leave during working hours to attend relevant medical appointments. By virtue of section 6(1) and 6(2) arrangements by or on behalf of an employer for determining to whom employment should be offered or on which employment should be offered or afforded did not require an employer to provide care facilities any more than it would have required an employer to provide assistance to cope with an incontinent employee. It was plain that there was a limit to the operation of section 6: for example, it is clear that an employer is under no duty to provide transport to enable a disabled person to get to work. The examples in subsection (3) all relate directly or indirectly to the performance of an employee's duties, as an employee. Nothing in the Code of Practice suggested any wider interpretation. He was minded to argue that an employer could not be in breach of a section 6 duty if he failed to make a person available to wheel the disabled employee to the toilet, if for example, the carpet was thick pile and the disabled employee could not manage on his own. In such a case he submitted that the difficulty was a physical one which would fall within section 6(1)(b).Section 6(1)(b) was enacted to cover the physical structure of the place of work. It covers the situation of the employer having to make alterations to the work premises in order to accommodate a disabled employee - such as constructing a disabled toilet. Provision of personal care cannot, therefore, be included under this section.The tribunal found that the applicant would have no problem doing the actual job, the insuperable problem related to his personal bodily functions in the toilet and the need for assistance. As those difficulties were not work related and not covered by section 6(1) Mr Doughty submitted that the respondent was not obliged to make any adjustments to assist him. Mr Doughty directed our attention to the Americans with Disabilities Act, which had been a model for the Disability Discrimination Act 1995 . The American Act excluded personal care from the arrangements which the employer had to provide and only covered physical arrangements in order to accommodate the disabled employee in the work premises.Mr Doughty stated that this case came within the definition of discrimination under section 5(1) of the Act only and not section 5(2). What the tribunal had to consider in this case was whether the applicant was discriminated against on the basis of his disability and then require the respondents to justify their actions. As the tribunal had found that the respondents were justified in discriminating against the applicant the tribunal decision was not wrong in law.Ms Moor submitted that this was a question of policy and we should look at the spirit of the Act, which was enacted to provide protection for disabled employees in precisely this sort of case. It was contended on behalf of the applicant that the reference to 'arrangements' in section 6 of the Act must cover matters of provision and omission and specifically included the provision of any care and equipment needed whilst at work. This would include the provision of personal carers if they were required by an employee to overcome a disadvantage at work. Therefore the tribunal must look at anything at work that creates a disadvantage and that includes the inability to go to the toilet unaided. Ms Moor's response to the point raised regarding the Americans with Disabilities Act was that, as the American Act specifically excluded personal care and the 1995 Act and Code of Practice do not, it is more likely that personal care is included within the ambit of the Act.It was argued that section 6 of the Act did apply to this case and the tribunal were wrong not to consider the reasonableness factors under that section of the Act. In any event, Ms Moor submitted that if the cross appeal succeeded the case should still be remitted to a new tribunal as the original tribunal's findings on justification were wrong in law.With regard to the tribunal's conclusion that there had been full consideration of the organisation of a rota of volunteers Ms Moor contended in her skeleton argument that this was perverse given the facts of the case. To have come to that decision, the whole of the headquarters would have needed to have been considered for the rota and on the facts the respondent only consulted the IT department, the members of Mrs Barnard's office and a few police officers.The tribunal also erred in finding that there would be a breach of security if the applicant worked from home as the only objection to the applicant working at home raised in evidence was the time required to create the dummy data rather than any security problem.

Decision

We would wish, in the first instance, to observe that the Industrial Tribunal did not have the benefit of the EAT's decision in the case of Morse . Second, they did not have the benefit of submissions as to the applicability of section 6 to the facts of this case. Technically, we are always reluctant to permit any party to an appeal to argue a point which was not considered by the Tribunal. On this appeal, Ms Moor, to whom we are indebted for a cogent argument, not only did not raise any objection to the cross-appeal being argued, but invited us to consider the point. We have done so. At this stage, the tribunals and the EAT are dealing with new legislation which often raises difficult points and it will not be surprising if, occasionally, we take the view that issues have not been properly considered. This is no reflection on the competence of the Tribunals generally, nor of this Tribunal in particular. They have obviously approached their task with care on the basis of the arguments presented to them.The first question that arises is whether the arrangements which were necessary to enable the applicant to work with the respondents fall within section 6. We have come to the conclusion that they do not. Broadly, we accept the submission on behalf of the respondents on the cross appeal. In the first place, we consider that Ms Moor's submission amounts to a contention that every arrangement which could be made to facilitate the disabled person's employment falls within the definition in section 6(2). Yet, as it seems to us, a line must be drawn somewhere otherwise the statute would have been drafted differently. Subsection (2), as the word "only" foreshadows, is not intended to cover everything an employer could do. For example, the provision of transport for getting to an fro from the employers' premises is outwith the section. If a disabled person needs assistance from another to get to work, that is for him/her to provide and pay for, but not the employers' responsibility. The effect of a failure to provide this service may deprive the disabled person of an opportunity to be employed in an undertaking, but without involving a breach of the Act. Therefore, the fact that the failure to make an arrangement will have this effect does not, of itself, bring the arrangement within the Act. In other words, not every failure to make an arrangement which deprives an employee of a chance to be employed is unlawful. It is to section 6(2) that one must turn for a definition of what is covered. It seems to us that in the context of the language used, namely "any term condition or other arrangement on which employment promotion a transfer or any other benefit is offered or afforded", Parliament had in mind what might be called 'job related' matters. In other words, Parliament is directing employers to make adjustments to the way the job is structured and organised so as to accommodate those who cannot fit into existing arrangements.The example of the incontinent job applicant is instructive. Ms Moor argues that an employer would be under an obligation to provide for the sanitary needs of that person, including the provision of a toilet assistant. She says that this interpretation would cause no injustice because the employer would probably be able to say that it was not reasonable for him to take corrective action and would be able to justify any breach. But with respect to that argument, the submissions she makes here belie that contention. She is asserting that the employers failed to justify their action because they could not show that attempts had been made to recruit volunteers from the whole of the force. It is plain that once the duty to make adjustments arises, the inquiry into reasonableness and justification may involve the employer in making extensive, detailed inquiries.A broad construction seems inconsistent with the word "only" in section 6(2); the opposite point of view does not automatically lead to the employer succeeding because, as here, there will be discrimination under section 5(1) which the employer will be required to justify. As a matter of first impression it seems to us that had Parliament intended to impose on employers the duty to cater for an employee's personal needs in the toilet it would have said so, and the Code of Practice would have laid out the criteria to be applied. In fact, the Code of Practice is not consistent with such a duty; it is consistent with the respondents' submissions.

(l) The Code refers to this thus:

"This could involve the provision of a support worker or help from a colleague, in appropriate circumstances for someone whose disability leads to uncertainty or lack of confidence."
It seems to us that this is referring to the provision of a helper to enable the disabled person perform their employment duties. The provision of a carer to attend to a person's personal needs is not aptly described as the provision of supervision. Supervision in the employment context is perfectly comprehensible as a concept and it would be distorting the language to suggest it covered personal care. On the other hand, it seems to us that an employer should be required to consider making physical adjustments to accommodate the presence of a personal carer provided by the disabled person himself/herself. Access to a toilet during working hours is a necessary ancillary to a person's work to bring the Act into play. Therefore, a failure to make physical arrangements for a disabled person to use the toilet would fall within section 6(1)(b); equally a failure to make physical arrangements to accommodate the carer would fall within that section; but it is going too far, in our judgment, to suggest that employers are under a statutory duty themselves to provide carers to attend to their employees' personal needs. The example of employment within a hospital was suggested in argument. It seems to us that the answer is, in principle, no different. In terms of its employment relationships, a hospital or police force is not obliged to provide personal carers but each will be required to consider making adjustments to accommodate the carer provided by the disabled person. In both cases, the employer will have discriminated against the disabled person by reason of his disability; in both cases the employer would have to justify the discrimination to avoid liability. In the former case, the question of justification might be answered differently from that in the latter.As Mr Doughty said, 'a line has to be drawn' on the extent of the employer's responsibilities in providing adjustments to accommodate a disabled employee.The result is that the cross appeal succeeds, and the Industrial Tribunal were right to reject the complaint under section 5(2) of the Act.We would add that, had the cross-appeal not succeeded we would have allowed the appeal on the grounds advanced by Ms Moor. We emphasise to Industrial Tribunals the need for them to know the scheme of the Act. Where section 6 applies the question of reasonableness must be addressed before the question of justification.We were attracted to Ms Moor's other submission that the tribunal have not fully considered the question whether the employers were justified in not waiting for the result of the PACT application. The submission made to us is that they apparently never considered whether during the intervening period, the employers should have suggested and/or indicated that they would permit the mother to attend on a temporary basis, to hold the fort. Whilst the President would have been minded not to allow the appeal on this ground, his lay colleagues feel differently and he is not prepared to disagree with them, in the light of their considerable workplace experience. This is, therefore, a unanimous decision that the matter should be remitted back for another tribunal to consider the question of justification under section 5(1) of the Act. The new tribunal will not be concerned to consider section 5(2) nor section 6. But it will wish to consider all the circumstances, including the relevant provisions of the Code of Practice. As a matter of general rule, whilst tribunals become familiar with the statute, we recommend to them that in every case reference is made to the Code of Practice. That document helps to set the framework within which decisions must be made and section 53(6) requires tribunals to take into account any provision of the Code which appears to it to be relevant.The decision of this court is that the matter be remitted back to another tribunal to consider the applicant's complaint under section 5(1) of the Act only.