LONDON BOROUGH OF HILLINGDON v MS A F MORGAN [1999] UKEAT 1493_98_2705

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1493_98_2705Case No Appeal No. EAT/1493/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF HILLINGDONAPPELLANTMS A F MORGANRESPONDENT
Before
Mr Justice MorisonDate 27 May 1999
[1]APPEARANCES For the Appellants MR M SUPPERSTONE QC Instructed By: Ms C Thomas Head of Corporate Legal Services London Borough of Hillingdon Civic Centre Uxbridge Middx UB8 1UW For the Respondent MR S BARBER (Representative) Regional Officer Greater London UNISON 1st Floor, Congress House Great Russell Street London WC1B 3LS MR JUSTICE MORISON (PRESIDENT) : This is an appeal against the unanimous decision of an Employment Tribunal which upheld Ms Morgan's complaint that she had been the victim of unlawful discrimination contrary to sections 5(1) and 5(2) of the Disability Discrimination Act 1995. The facts giving rise to this appeal are stated in the Extended Reasons of the Employment Tribunal, which were sent to the parties on 23 October 1998.[2]Ms Morgan was employed by the London Borough of Hillingdon, who are the Appellants, from November 1989; latterly, as it says, as a Service Information Officer. From January 1997 she was on sick leave suffering from Myalgic Encephalomyelitis (ME). The Tribunal noted that full details of her condition were contained in various reports which they summarised in paragraphs 3 and 4 of their written decision.[3]The Applicant was anxious to try and get back into employment and she returned to her workplace on 24 November, but she was unsupported when she arrived at work by any manager and no arrangements had been made to make sure that she was looked after. She found returning to work stressful. The job involved her dealing with the public. She could not cope and left.[4]The Tribunal commented:
"While her return was unsuccessful it represented an attempt by her to stimulate the Respondent into action along the lines suggested by Dr Thompson."
[5]The doctors were of the view, at this time, that what was described as "a graded return to work in line with her symptoms" should be undertaken. It was noted by the doctor that she needed a period of part-time work to ease herself back into routine and the doctor expressed the hope that such would be possible.[6]Thereafter, from time to time and on a regular basis, the Respondent's "Corporate Monitoring Panel" met to consider whether job vacancies could be filled by its redeployees prior to those jobs being advertised. There is a redeployment scheme in operation by this London Borough, which applies to those whose positions have been made redundant and to those who are on long-term sickness absence, and it is plain that the Council sought to meet the Applicant's needs through the redeployment process.[7]The Tribunal noted that although a senior employee of the Council enquired of departmental managers whether they could provide some work for her to do at home, that was answered negatively:
"… notwithstanding that this was an authority with 8,000 employees. In this respect, the Respondent treated the Applicant less favourably than Ms Warner for whom when on long-term sick leave it took positive steps to provide her with work at home. Furthermore there were others for whom the Respondent either found work at home or were paid salaries while awaiting redeployment … . Had the Respondent followed its doctor's advice and provided work for the Applicant it would have aided her recovery."
[8]The Tribunal noted that the arrangements made by the Respondents placed her at a substantial disadvantage in comparison with those who were not disabled. They pointed out that she lacked the personal face-to-face contact with anyone in Personnel, who could take the situation forward.[9]Secondly, the Personnel Department in contrast to the Occupational Health doctor, were negative in their approach. The Tribunal concluded that, had there been such personal contact between the Applicant and say, a senior Personnel Manager, and had the Respondent employers established the will to take the matter forward, there would have been a more positive conclusion than was the case. They made this finding:
"Following the Applicant's unsuccessful attempt to return to work on 24 November the situation fell apart to her long-term disadvantage."
[10]On the basis of those findings which they had made the Employment Tribunal drew the inference that the employers had unlawfully discriminated against her as a disabled person. They then considered specifically whether there was a breach of duty under section 5(1) of the Act and concluded that there was. They said this:
"We have been referred by witnesses for the Applicant to a whole list of persons who have been treated more favourably than the Applicant when they have been off work long term themselves. They have not been disabled persons. For the Respondent it has been put that there was no work for the Applicant to do. The Authority could not create unfunded work and there was no requirement that it should treat the Applicant more favourably because she was disabled. In an authority of this size this is a submission that we do not accept. All that was required was a gradual stimulus for the Applicant, an otherwise able person, to focus on a task and carry it forward. This is something which would not have occasioned much inconvenience or expense for the Respondent. We accept that the Personnel Department of the Respondent was at the time being bombarded by a number of well meaning Councillors in addition to a Union Official on behalf of the Applicant but their intentions were well meant. The failure of the Respondent to respond is in our view thoroughly unjustified and we do not see that dealing with the Applicant through the Corporate Monitoring Panel was any substitute. It would probably have required a month or two to build up before the Applicant would have been ready for any of the jobs which came up before the Panel."
[11]They then turned to the question of whether there has been a breach of section 5(2), which is the section which introduces the concept of reasonable adjustments under section 6. They referred to the decision of the Employment Appeal Tribunal in Morse v Wiltshire County Council [1998] IRLR 352 and they then said, accurately, that the list which is contained in paragraphs (a) to (l) of section 6(3) shows "but examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1)." They found that:
"… paying heed to the advice of its own Occupational Health Adviser could be added to the list in all the circumstances of this case. This was the initial step required to equip the Applicant for the jobs which came up before the Corporate Monitoring Panel. We find that the Respondent has failed to comply with the section 6 duty in respect of this disabled Applicant."
[12]Having dealt with whether there was a prima facie breach of section 5(2), they then went on to consider whether the justification defence would succeed under section 5(2). They set out the arguments of the parties. The employers were saying that: "The steps taken would have made no difference. The Applicant was almost unfit for all working requirements. The Applicant's expectations were unrealistic verging on unreasonable. It [the Respondents] cannot create unfunded work and there was no requirement to treat a disabled person more favourably [presumably than a non-disabled person]. Furthermore every job offered should be offered on merit.[13]The Tribunal indicated that they disagreed with the employer's submission: "What has characterised this particular case is a lack of human contact between the Applicant and anyone in the Respondent's Personnel Department who had the clout to take the matter forward. When the Respondent is dealing with a disabled person we find that hard to understand. Against the Respondent's vast economic resources albeit raised from the tax payers we do not believe that it would have cost very much to take the steps that we have identified".[14]The matter came before the Employment Appeal Tribunal under our preliminary hearing procedure and three arguable points of law were identified, namely: "(i) whether under section 5(1) and/or 5(2) (assuming a section 6 duty) there was an obligation on the Appellant to provide the Respondent with work at home; (ii) whether under section 5(1) and/or 5(2) there was an obligation on the Appellant to create work for the Respondent when none existed; and (iii) whether there was an obligation on the Appellant to offer the Respondent a job irrespective of merit. This issue raises the relationship between section 6 of the Act and section 7 of the Local Government and Housing Act 1989".[15]In support of the appeal Mr Michael Supperstone QC has argued that the Employment Tribunal erred in law in their approach to this case. The main point that he makes, in different forms, is that nowhere in the Tribunal's decision have the Tribunal indicated precisely what job they thought the Applicant could have done. That, he said, was a failure. It was their responsibility, if they were going to criticise the employers for not taking the steps referred to in section 6, to specify them with precision. He says that, on the evidence which was adduced there was no job as such which the Applicant would, or could, have done. He pointed out that it appeared, at least at some stage, that she was not willing to consider doing a job which carried a lower grade and therefore lesser pay.[16]Mr Supperstone accepted that the question whether there was an obligation on the Appellants to provide the Respondent with work at home was not in one sense happily expressed. The answer to that question was probably "No", if the question was meant to be a general one, but it does seem to us that the question should rather be directed to the provisions of the Act, as supplemented by the Code of Practice, where the question would be, "Whether, in all the circumstances, the employers had acted reasonably or unreasonably in failing to provide her with work at home". That question would be affected by whether there was available work to be done at home and what enquiries were made to ascertain whether such work was available and suitable for the Applicant's needs. He accepted that, in relation to the third issue identified, the question has been answered by Parliament itself. Section 7 of the 1989 Local Government and Housing Act, which provides that all staff are to be appointed on merit, contains within it, as a result of an appropriate amendment, a qualification to that primary obligation, namely that the requirement to appoint on merit has effect subject to "sections 5 and 6 of the Disability Discrimination Act 1995" (meaning of discrimination and duty to make adjustments).[17]In addition to that it is plain from the Code of Practice itself that the Disability Discrimination Act fits in with the requirement to appoint on merit in this way. Paragraph 4.66 reads:
"The Disability Discrimination Act does not prevent posts being advised as open only to disabled candidates. However, the requirement, for example, under Section 7 of the Local Government and Housing Act 1989 that every appointment to local authorities must be made on merit means that a post cannot be so advertised. Applications from disabled people can nevertheless be encouraged. However, this requirement to appoint 'on merit' does not exclude the duty under the 1995 Act to make adjustments so a disabled person's 'merit' must be assessed taking into account any such adjustments which would have to be made."
[18]It is not clear to us whether the Employment Tribunal were made aware of this qualification to the 1989 statute. We have noted that in paragraph 10 of the decision the Tribunal recorded the submission of the employers as being "Furthermore every job offered should be offered on merit". That implies, in the absence of qualification, that it may be that the employers themselves were unaware of the linkage between the Disability Discrimination Act and section 7 to which that sentence is an oblique reference. But whether it is unfair to make that point or not, it seems to us that the third issue that was said to fall for determination on this appeal in truth is not an issue at all since it has been amply dealt with in the Statute and the Code of Practice.[19]In relation to the second issue which was raised, namely whether under section 5(1) and/or 5(2) there was an obligation on the Appellant to create work for the Respondent when none existed, it was never suggested as we understand it, in the submissions made to the Employment Tribunal, that there was any such duty. The argument rather is on whether the employers have looked at their obligations under the Statute, as amplified by the Code of Practice, in order to see whether adjustments could be made to existing work practices of existing jobs to see if the Applicant would be given the opportunity for a graded return to work, doing short hours of work at home for a month or two, which would eventually lead her back into full-time employment with the Respondents.[20]It can be seen from the Tribunal decision that no reference was made explicitly to the Code of Practice. Paragraph 6.19 of the Code of Practice: Disability Discrimination (1996), provides as follows:
"An employer must not discriminate an employee who becomes disabled, or has a disability which worsens … . The issue of retention might also arise where an employee has a stable impairment but the nature of his employment changes."
[21]This is under the heading "Retention of disabled employees" which covers situations such as occurred here, when a previously healthy employee becomes disabled.[22]Paragraph 6.20 sets out the sort of reasonable adjustments which an employer might have to make in order to fulfil its obligations under the Statute where the question of retention of a disabled employee arises:
"6.20 If as a result of the disability an employer's arrangements or a physical feature of the employer's premises place the employee at a substantial disadvantage in doing his existing job, the employer must first consider any reasonable adjustment that would resolve the difficulty. The employer may also need to consult the disabled person at appropriate stages about what his needs are and what effect the disability might have on future employment, for example, where the employee has a progressive condition. The nature of the reasonable adjustments which an employer may have to consider will depend on the circumstances of the case."
[23]It is, we think, common ground between the parties that the correct approach of the Employment Tribunal to questions arising under section 5(1) and 5(2) and issues of justification, is properly set out between paragraphs 40 and 47 of the decision in Morse v Wiltshire County Council [1998] IRLR 352 ."40. In our judgment, ss.5(2) and (4), and 6(1), (2), (3) and (4) of the Act require the industrial tribunal to go through a number of sequential steps when dealing with an allegation of s.5(2) discrimination.41. Firstly, the tribunal must decide whether the provisions of s.6(1) and s.6(2) impose a s.6(1) duty on the employer in the circumstances of the particular case.42. If such a duty is imposed, the tribunal must next decide whether the employer has taken such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the s.6(1)(a) arrangements or s.6(1)(b) feature having the effect of placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled.43. This in turn involves the tribunal enquiring whether the employer could reasonably have taken any steps including any of the steps set out in paragraphs (a) to (l) of s.6(3) The purpose of s.6(3) is to focus the mind of the employer on possible steps which it might take in compliance with its s.6(1) duty, and to focus the mind of the tribunal when considering whether an employer has failed to comply with a s.6 duty.44. At the same time, the tribunal must have regard to the factors set out in s.6(4) paragraphs (a) to (e).45. If, but only if, the tribunal (having followed these steps) finds that the employer has failed to comply with a s.6 duty in respect of the disabled applicant, does the tribunal finally have to decide whether the employer has shown that its failure to comply with its s.6 duty is justified, which means deciding whether it has shown that the reason for the failure to comply is both material to the circumstances of the particular case and substantial (see s.5(2) and (4)).46. In taking these steps, the tribunal must, in our view, apply what Mr Ciumei called an objective test, asking for instance whether the employer has taken such steps as were reasonable, whether any of the steps in s.6(3) were reasonably available in the light of the actual situation so far as the factors in s.6(4) were concerned; and asking whether the employer's failure to comply with its s.6 duty was in fact objectively justified, and whether the reason for failure to comply was in fact material to the circumstances of the particular case and in fact substantial.47. No doubt, in carrying out these exercises, the tribunal will pay considerable attention to what factors the employer has considered or failed to consider, but it must scrutinise the explanation for selection for redundancy, for instance, put forward by the employer, and it must reach its own decision on what, if any, steps were reasonable and what was objectively justified, and material and substantial."[24]We have to say that we disagree, with respect, with the main submission advanced on behalf of the Appellants in this case. It seems to us clear that the Employment Tribunal's decision can be summarised in this way:[25]Firstly, with a graded return to work there was reason to believe that she could, after one or two months, have been able to fulfil the duties of many of the jobs which fell for consideration under the redeployment scheme, and for which she was well qualified.[26]Two, as a large employer the authority had the capacity to make adjustments, as they had with other staff, to enable her to have a graded return to work, for example, a short period of working at home doing work which she was qualified to do for short periods of time.[27]Three, the Personnel Department were less than active in seeking to ensure her graded return to work, adopting a supine rather than a positive attitude to finding her a position in other departments.[28]It seems to us, in a nutshell, that what has happened here is that the employers have treated the Applicant as they would have treated any other person who fell for redeployment within their redeployment scheme. To that extent they have failed in their duty. It was, since the coming into force of the Disability Discrimination Act, their duty to deal with people who became disabled at work in accordance with the statutory requirements as amplified by the Code of Practice. If they had approached the matter in that way, they would not have simply regarded this as another redeployment case where they had to see if there was a job available and, if not, to offer one which was below the level at which she had been working. The Act requires more, as its terms make clear. They are required to see if they can make reasonable adjustments so as to enable a person who is disabled to be retained in their employment. In this case the disablement was by November, regarded as being something which could be overcome with care and attention paid by the employers to her redeployment needs. For example, she could have been provided with secretarial or administrative work to do for short periods of time at home and the judgment of the Employment Tribunal on the facts, as they found them to be, was that if that attitude had been taken towards her, she would, in fact, have been able to return to full-time employment within about two months of her starting to do that temporary work.[29]Accordingly, it seems to us that the employers have never really addressed the questions at issue in this case, and the Tribunal was quite entitled to deal with their submissions in the robust and short form that they have, following a three-day hearing. It was obviously their view that the Council had failed to comply with the particular statutory obligations which are imposed on an employer when dealing with a disabled person. She was not simply to be treated as a potential redeployee. She needed specific measures being considered and taken in her case.[30]It is not, we think, with respect, for the Employment Tribunal to identify or select the job which they think she could have done. It was not their responsibility to identify the particular post. In this case what they are saying is that had the matter been approached correctly then they have no doubt at all but that adjustments would have enabled her to return to work through temporary working at home in the short term. That being so, the principal submission which was made to us, on behalf of the employers, must be rejected.[31]We have probably not done full justice to Mr Supperstone's other arguments. We have to say that, at the end of the day, we consider that the facts in this case and the way the employers have approached the case do not raise any grounds of appeal that we would need to deal with in this judgment. The case has simply gone off at the wrong angle (if I may put it like that). The employers never got beyond the starting gate in relation to their obligations under the Disability Discrimination Act. By saying that, none of us wish to imply that the Council has behaved in a manner which was cruel or harsh or uncaring. We would rather wish to say that it would have been better if they had in place a discrimination policy which dealt with people who become disabled at work, which would have enabled them to confront the issues in this case in a way which would have met with the Tribunal's approval.[32]For these reasons, the appeal must be dismissed, but we would wish to add this. We have already made it plain to Employment Tribunals that, in our judgment at this stage, there should always be reference to the Code of Practice and its relevant paragraphs. Section 51(5) of the Act makes it plain that, in arriving at their conclusion as to lawfulness the Tribunal will take into account any breaches of the Code. The Code should have been referred to in this decision. The paragraphs to which I have referred are plainly relevant paragraphs and there are others as well. It would have been preferable in this case, had the Employment Tribunal found, as they unquestionably would have done, that there had been breaches of the Code of Practice. At any rate, they should have addressed their attention to it expressly. It was a short decision reflecting, we think, the view taken of the case being advanced by the Respondents as exemplified by the use of their words "Thoroughly unjustified". But the short decision itself may have led to the attractive arguments that were presented to us by Mr Supperstone, pointing out that there is no indication in this decision that the Tribunal have held the employers to be in breach of the Code of Practice. That is a perfectly fair point for him to make as the decision stands.[33]What I would hope is that in future Employment Tribunals will heed what it is that we have said, which is that for the foreseeable future all Disability Discrimination cases should contain references to the relevant Codes of Practice which have been looked at during the course of the hearing and findings made in relation to them. The appeal must be dismissed.[34]Mr Supperstone has asked us for leave to appeal. He says that there are plainly important issues in this case which relate to the extent of an employer's duty under sections 5 and 6. We respectfully disagree. This is just simply an example of the application of the statutory provisions and of the Code of Practice to the particular facts of the particular case. It is not our view that there is any important point of principle which requires us to refer the matter to the Court of Appeal or to permit it to be referred to the Court of Appeal. Of course, if the Court of Appeal themselves disagree, then it will be open to them to give leave but the application for leave to appeal is refused.