MS A MCDONALD v LONDON BOROUGH OF EALING [2000] UKEAT 406_99_0304

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 406_99_0304Case No Appeal No. EAT/406/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS A MCDONALDAPPELLANTLONDON BOROUGH OF EALINGRESPONDENT
Before
Mr Justice Charles Mr J C Shrigley Mr N D WillisDate 3 April 2000
[1]APPEARANCES For the Appellant MR STUART BARBER (Regional Officer) UNISON 1st Floor Congress House Great Russel Street London WC1B 3LS For the Respondents MR TERRY GALLIVAN (of Counsel) London Borough of Ealing Legal Dept Perceval House 14-16 Uxbridge Road London W5 2HL MR JUSTICE CHARLES : The parties to this appeal are a Ms A. McDonald (the Appellant and the Applicant before the Employment Tribunal) and the London Borough of Ealing. The appeal is against part of a decision of an Employment Tribunal sitting at London (North), the Extended Reasons for which were sent to the parties on 27 January 1999.[2]The Extended Reasons are 52 pages in length. We would like to take this opportunity of thanking and paying tribute to the Employment Tribunal for the care they have taken in writing those Extended Reasons and the manner in which they have dealt with this case.[3]When this appeal came before this Tribunal by way of Preliminary Hearing the Appellant, who at the Employment Tribunal, at that Preliminary Hearing and today has been represented by a Mr Barber who is a Regional Officer of UNISON, agreed that only some of the matters included within the Notice of Appeal he had prepared should go forward. The original Notice of Appeal was 41 pages long.[4]The judgment of this Tribunal on the Preliminary Hearing contains the following:
"Following a very long hearing at London North an Employment Tribunal unanimously decided that a number of complaints made by Ms A McDonald, the Appellant, were not well founded and each complaint was dismissed. The judgment runs to some 60 pages. From that appeal, Mr Barber, who appeared for the Appellant at the Employment Tribunal, submitted on her behalf a Notice of Appeal running to some 41 pages. 1 At the preliminary ex-parte hearing today, Mr Barber has appeared before us. He has agreed that only two matters which should go forward to appeal, each of which we think is arguable, are these and to withdraw all other matters raised in the Notice of Appeal. The two matters are these: first, on the question of comparators, the question on which he says the Tribunal erred is in respect of disability discrimination. He wishes to argue that the tribunal erred in law by taking account of comparators. Secondly, on victimisation he agrees that the only question on which the Appellant wishes to appeal is this; that the question of victimisation was wrongly addressed by the Tribunal by way of motive rather than, as a recent decision of the House of Lords shows, by looking at the subjective impact on the Appellant's mind. 2 We will give leave to Mr Barber to put in a substituted Notice of Appeal within 14 days, setting out these two grounds; the Respondents answer should follow thereafter. Category B, estimated time of appeal half a day to a day. 3 We have pointed out to Mr Barber that allowing the points to go forward to a full hearing does not mean that this panel necessarily thinks they are likely to succeed and that it will be open to the Respondent to this appeal, in the event that it is unsuccessful, to apply for an order for costs."
[5]We pause to comment that paragraph 3 of that judgment is an indication that, having regard to the volume of paper put before them on the Preliminary Hearing, this Tribunal did not feel that it had "got to grips with" the issues which the Appellant sought to raise on this appeal.[6]Mr Barber told us and we accept that at the Preliminary Hearing he handed in a hand written amended Notice of Appeal. Paragraphs 1 to 3 of that Notice of Appeal are in the following terms:
"(1). Disability Discrimination that the Tribunal erred in law within the meaning of section 5(1)(a), section 5(2) and section 6 of the DDA when failed to apply the tests set out in: (a) British Sugar v Kirker (IRLR-1998-624). (b) Clark v TDG (Novocold) (IRLR-1999-318) in that 'in deciding whether the reason for less favourable treatment does not or would not apply to others, it is simply a case of identifying others to whom the reason for the treatment does not or would not apply' ( Clark v TDG ) and 'A section 5(2) claim for a breach of a section 6 duty is not dependent on successfully establishing a claim under section 5(1). They are different causes of action' ( Clark v TDG ). (2). The evidence before the Tribunal (and accepted by them) was that there were a large number of employees who were identified who were not subjected to the same treatment complained of. The reason for that treatment of the applicant it is contended was because of her disability. (3). Further, it is contended that in ignoring the provisions of the Code of Practice the Tribunal failed in its section 53(6) duty ( Clark v TDG : para 82)."
[7]Paragraphs 4 and 5 of that hand written Notice of Appeal related to the claim for victimisation. Mr Barber has not pursued that aspect of the appeal before us. In our judgment he was correct to abandon that aspect of the appeal.[8]We accept that the hand written Notice of Appeal prepared and handed in by Mr Barber at the Preliminary Hearing identified the matters which this Tribunal decided could proceed to a full hearing with the note of caution expressed in paragraph 3 of their judgment.[9]Further in our judgment the leave given by paragraph 2 of the judgment of this Tribunal on the Preliminary Hearing related to leave to put in an amended Notice of Appeal in the terms of (or substantially in the terms of) the hand written draft handed in on that day.[10]The amended Notice of Appeal put in by Mr Barber on behalf of the Appellant is in the following terms:
"1. a. The appellant appeals solely against the decision of the Employment Tribunal to dismiss her claims as set out in originating application No. 2206015/97 in that the Respondents discriminated against her contrary to S.4(2)(d), S.5(1) and S.5(2) of the D.D.A, 1995. b. It is contended that the Tribunal misdirected itself in Law within the meaning of these sections. REF: British Sugar v Kirker IRLR [1998]-624 EAT Clark v TDG Limited (Novocold). c. Further it is contended that the Tribunal failed in their duty as set out under S.53(6) of …. Discrimination …. Against Disabled people."
We pause to comment that this reflects paragraphs 1 and 3 of the hand written amended Notice of Appeal. "2. 'Comparator test' [Clark v Novocold] a. It is contended that the Tribunal fundamentally erred in Law by approaching this case [and portrayed in their lengthy judgment] on the basis of both actual comparators and hypothetical comparators. It was the appellants case throughout that she suffered as a direct result of her disability related absence, and but for her disability she would not have been subjected to the treatment afforded to her. b. The Tribunal at Paragraph [7] of their judgment confirm such an approach to issues before it. This approach was reinforced in their findings at Paragraph [70]. 3. Code of Practice – S.5(2) Duty under S.6 Although the Tribunal refer to the Code of Practice in general terms [Para 40] they specifically and only refer to Paragraphs 3.1; 3.5 and 4.20 of that code [Para 80]. They erroneously failed in their duty by overlooking and not considering those provisions of the Code of Practice at Paragraphs: * 3.3 'Expert Advice' * 4.3 'Less favourable duty' * 4.20 and 5.27 'flexible hours and rehabilitation' * 4.2.2 'little benefit to employee' * 4.24 to 4.30 'Cost of adjustment' [Clark v Novacold] 4. Pre-D.D.A Disability related sickness a. It is contended that the Tribunal in adopting their 'Comparator' approach further muddied the waters when in reinforcing the 'Comparator' approach they erred in Law when they followed the reasoning of the employer by taking into account pre-D.D.A. Disability related Sickness to assess whether the employers were 'justified' in their actions . b. It is contended that this was a fundamentally flawed approach in that the question they should have posed was 'Did the pre-D.D.A disability sickness have a subjective effect on the treatment of the applicant'. It is contended that it did, and in line with the 'Comparator' test set out in Clark v Novocold the appellant, but for her disability related sickness, pre-D.D.A would not have received the treatment complained of. REF: British Sugar v Kirker IRLR [1998] 624." Paragraphs 2, 3 and 4 of the amended Notice of Appeal therefore, in effect, provide particulars of paragraph 1 and include matters covered in paragraph 2 of the hand written amended Notice of Appeal.[11]Also paragraph 4 of the amended Notice of Appeal potentially adds new points but we permitted Mr Barber to argue these points.[12]In the opening paragraphs of his skeleton argument Mr Barber said this:
"Three main issues flow from this Appeal namely: a. the approach of the Tribunal and the effect of that approach in its findings of primary facts and subsequent findings against the appellant, when it failed to address correct [and in Law] the appellant's disability related position post December 1996 when the DDA 1995 came into force. b. The failure of the Tribunal to fully take on board the provisions of S.53(6) of the 1995 Act relating to the 'Code of Practice for the elimination of discrimination' …. Against Disabled people. c. The 'Comparator' approach."
It can be seen from this introduction to the skeleton argument that it has a different focus to the amended Notice of Appeal in that point (a) relates to the effect of the approach of the Employment Tribunal in, or in respect of, its findings of primary facts and subsequent findings against the Appellant.[13]It became apparent as Mr Barber's oral submissions developed that he was seeking to challenge the findings of facts and the approach of the Employment Tribunal on essentially two matters namely:(a) the medical condition of the Applicant and thus the nature and extent of her disability after the coming into force of the Disability Discrimination Act as to which he referred us, in particular, to the quotations from doctors' reports set out at pages 6 and 7 of his original Notice of Appeal and, in particular, to the quotations relating to the reports dated 14 August 1997, 15 September 1997 and 27 October 1997; and(b) comparators. Mr Barber accepted that he was seeking to make these challenges and that if he could not make one or both of them good his other arguments lost all, or most, of their force.[14]In our judgment it was not open to Mr Barber to seek to argue before us in support of an argument relating to the position before and after the coming into force of the Disability Discrimination Act, or otherwise, that the findings of the Employment Tribunal as to(a) the nature and extent of the Applicant's illness, and thus(b) her disability and the changes thereto after the coming into force of the Disability Discrimination Act, were wrong.[15]The first reason for this is that this point does not, in our judgment, appear from the hand written amended Notice of Appeal and was not a point which this Tribunal allowed to proceed to a full hearing on the Preliminary Hearing.[16]Secondly, and more importantly, when the merits of the respective cases of the parties are examined this argument was effectively a challenge to the findings of fact made by the Employment Tribunal in respect of the medical evidence before it. As to their findings:(a) It is apparent from the Extended Reasons that the Employment Tribunal considered that evidence carefully (see, for example, paragraphs 14 and 74), and(b) Mr Barber, in our judgment, correctly accepted that the whole history of the Applicant's illness and absences were relevant to the situation that existed after the coming into force of the Disability Discrimination Act 1996. His argument however was that the medical evidence before the Employment Tribunal demonstrated that after the coming into force of that Act, the Applicant's condition worsened considerably and that this was relevant to the adjustments that should have been made pursuant to duties imposed by that Act.[17]The challenge is therefore not really one as to the approach adopted by the Employment Tribunal but relates to their findings as to the extent of the illness and disability of the Applicant and their relevance to the adjustments that could, or should, have been made.[18]In this context it is also relevant to note that at the end of paragraph 74 of the Extended Reasons the Employment Tribunal record that before them the Applicant's constant theme was that her health had now improved and that her sickness absence would be substantially better in the future. This is at odds with the argument presented to us by Mr Barber that the medical evidence demonstrated that her health had worsened and that in 1997 she had been diagnosed as now also suffering from a potentially fatal complication called lupoid hepatitis.[19]In short in our judgment this line of argument advanced by Mr Barber was hopeless. It related to findings of fact made by the Employment Tribunal and in our judgment, having regard to the Extended Reasons read as a whole it is simply not open to him to suggest that the Employment Tribunal had no evidence before them upon which they could reach their findings or that they were perverse.[20]In large measure Mr Barber's argument relating to comparators was also an attempt by him to "re-run the facts" before us. However, by paragraph 2 of the hand written Notice of Appeal he did identify that a point would be raised on the evidence in respect of comparators. But, that paragraph starts with the following phrase: "The evidence before the Tribunal ( and accepted by them ) " and therefore, on the face of it, this ground as put before this Tribunal at the Preliminary Hearing and allowed to proceed is based upon findings made, or evidence accepted, by the Employment Tribunal. When we asked Mr Barber to identify those findings or evidence his response was to say that the Tribunal had allowed him to introduce written and oral evidence relating to comparators. From that it seemed he had used the word "accepted" in the sense of "admitted into evidence".[21]As appears from paragraph 5 of the Extended Reasons the Employment Tribunal initially refused to allow Mr Barber to introduce such evidence. In our judgment in reaching that conclusion the Employment Tribunal did not err in law. Indeed, we would go further and record that in our judgment their decision was correct.[22]However, and notwithstanding the ruling made by the Employment Tribunal, Mr Barber and the witnesses he called regularly referred(i) to documents relating to comparators, and(ii) to comparators. Having regard to this (as appears from paragraph 7 of the Extended Reasons) the Employment Tribunal took the pragmatic decision that, notwithstanding their original ruling and entirely without prejudice to it, they should allow the Applicant to refer to those documents and comparators.[23]This shows how the documents and evidence as to comparators was admitted into evidence and therefore in the sense described to us orally by Mr Barber "accepted by them".[24]Additionally Mr Barber asserted that the evidence as to comparators (both oral and written) was not effectively challenged and therefore, as we understood him,(i) its truth, and(ii) its effect (as asserted by him), were accepted by the Employment Tribunal. In our judgment the Extended Reasons show that this was not the case. As to this the findings made by the Employment Tribunal have to be read as a whole but we would draw particular attention to paragraph 67 (albeit that it deals primarily with the complaint under the Race Relations Act 1976), paragraph 77, paragraphs 82.5.1 to 82.5.6 and paragraph 82.6.4 of the Extended Reasons.[25]Again in our judgment this challenge to the findings (and approach) of the Employment Tribunal to the comparators put forward by Mr Barber on behalf of the Appellant and their findings, having regard to them alone (or taken together with the findings of the Employment Tribunal concerning the Appellant's health and disability) in respect of(i) less favourable treatment,(ii) the adjustments that were made or could or should have been made, and(iii) justification, are hopeless. In our judgment, the Extended Reasons read as a whole show clearly that the Employment Tribunal had evidence upon which they could base their conclusions relating to these matters and their conclusions cannot be categorised as being perverse. Other points raised by Mr Barber on behalf of the Appellant The approach having regard to the introduction into law of the Disability Discrimination Act 1995.[26]In our judgment the Employment Tribunal did not err in this respect. In our judgment they were correct to have regard to the history. Further in our judgment it is apparent from the Extended Reasons that following the introduction of that Act the Employment Tribunal had regard to its application on the basis of the situation that then existed in respect of the Appellant's disability, her absences, the reasons for the employer's conduct and actions, the Disability Discrimination Act 1995 and the Code of Practice. The approach to less favourable treatment.[27]The Employment Tribunal, with considerable good sense and foresight approached this issue on the alternative bases(a) that the decision of this Tribunal in Clark v Novacold would be upheld, and(b) that, as in fact occurred, the Court of Appeal would overrule the decision of this Tribunal in that case (see, for example, paragraph 82.6.4 of the Extended Reasons).[28]It follows that on the law as it stood at the time the matter came before the Employment Tribunal the Employment Tribunal applied that law and reached a conclusion that there was not less favourable treatment. On the alternative (and at the time they took it hypothetical) approach set down by the Court of Appeal in Clark v Novacold [1999] IRLR 318 , the Employment Tribunal correctly accepted that there would be less favourable treatment but went on to find that the Respondent employer's treatment of the Appellant was entirely justified.[29]A consequence of this alternative approach, and the finding of the Employment Tribunal on justification, is that as a free-standing point the arguments raised by Mr Barber in relation to the approach taken by the Employment Tribunal at law to the assessment of less favourable treatment lead nowhere and to win the Appellant would have to succeed on her attack on the finding of the Employment Tribunal on justification. Justification and s. 6 duty[30]The Employment Tribunal found in paragraph 82 of their Extended Reasons that the Respondent employer had not failed to comply with a section 6 duty. Accordingly, they did not consider the issue of justification under section 5(2)(b). The issue of justification however arose, and they considered it, on their alternative (and at the time hypothetical) approach under section 5(1).[31]In addition to the arguments advanced on behalf of the Appellant by Mr Barber on(i) the facts, and(ii) the approach of the Employment Tribunal (identified in paragraph 13 above and dealt with thereafter) Mr Barber asserted that on the issue of justification (and as we understood him on the issue whether the Respondent employer had a s. 6 duty) the Employment Tribunal erred in law by failing to have proper regard to the Code of Practice and, further or alternatively, by failing to adequately refer to provisions of the Code mentioned during the hearing and explain their view on the impact of those provisions. In this respect he referred us to and relied on in particular Ridout v TC Group [1998] IRLR 628 (in particular paragraph 28 of the judgment), Goodwin v Patent Office [1999] IRLR 4 (in particular paragraphs 23 and 24 of the judgment) and London Borough of Hillingdon v A Morgan (unreported) (in particular paragraph 32 of the judgment). These are all decisions of this Tribunal chaired by the President (Morison J) in which he says that reference should always be made explicitly by Employment Tribunals to any relevant provision of the Guidance or Code. In the reported decisions these statements are correctly referred to as obiter dicta (and the statement to such effect in the Morgan case is also obiter dicta ). This is because the cases are not decided on the basis of the lack of reference to the Code or Guidance.[32]In our judgment the passages in these cases concerning reference to the Code or Guidance by Employment Tribunals in their Extended Reasons should be read with cases concerning the obligation of an Employment Tribunal to give reasons and the approach of an appellate court to the consideration of Extended Reasons given by an Employment Tribunal, such as Hollister v National Farmers' Union [1979] ICR 542 at 552H to 553D, Jones v Mid Glamorgan County Council [1997] ICR 815 at 826D, Martin v MBS Fastenings (Glynwed) Distribution Ltd [1983] IRLR 198 and in particular to paragraph 19 of the judgment therein, Hampson v Department of Education and Science [1989] ICR 179 and in particular to the first paragraph in the headnote at page 180, Meek v City of Birmingham District Council [1987] IRLR 250 , and in particular the passage, at p.251, from the leading judgment of Bingham LJ with which Sir John Donaldson MR and Ralph Gibson LJ agreed, and High Table v Horst [1998] ICR 409 at page 420 E to F. When this is done in our judgment the statements in the cases referred to in paragraph 31 hereof are statements giving guidance as to good practice in cases under the Disability Discrimination Act particularly whilst the law relating to its construction and application develops and they do not (and are not intended to) provide a different approach to that set out in the above cases to the question whether an Employment Tribunal has erred in law in failing to comply with its obligation to give proper reasons.[33]Here it is clear from the Extended Reasons that the Employment Tribunal did have regard to Code of Practice, indeed they expressly refer to it on a number of occasions (see paragraphs 40, 69, 79, 80 and 82.7.2). We also accept the submission made on behalf of the Respondent employer that on behalf of the Appellant employee (Ms McDonald) Mr Barber put a number of provisions of the Code of Practice (which were said by him to be relevant) to the Respondent's witnesses and that provisions of the Code of Practice were referred to in the submissions of the parties. Indeed this was not disputed by Mr Barber and it was part of his case that the Employment Tribunal were referred to a number of provisions of the Code of Practice in addition to those expressly referred to in paragraph 80 of the Extended Reasons, which he said should have been referred to in the Extended Reasons. We do not agree. In his skeleton Mr Barber listed the provisions of the Code of Practice that he said should have been expressly referred to in the Extended Reasons but in our judgment none of them point to a different conclusion or approach to that reached and taken by the Employment Tribunal, and none of them need to be expressly mentioned by the Employment Tribunal in the Extended Reasons. In our judgment Mr Barber's reference to these provisions in argument did not add to the force of his submissions or indicate that express reference to them by the Employment Tribunal would have assisted them in their approach or in reaching their conclusions or in explaining their reasons. His arguments by reference to these provisions were effectively the same as his other arguments which we have rejected.[34]In our judgment, for the reasons stated above:(a) the Employment Tribunal have not erred in law by failing to have regard to the Code of Practice, or in not making further express reference to provisions thereof in their Extended Reasons, and(b) the Extended Reasons read as a whole adequately explain to the parties why they won and lost having regard to the provisions of the Disability Discrimination Act and Code of Practice. Overall Conclusion[35]For the reasons stated above this appeal is dismissed.