MISS A BERESFORD v THE LONDON BOROUGH OF HAMMERSMITH & FULHAM [2000] UKEAT 958_00_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 958_00_1910Case No Appeal No. EAT/958/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS A BERESFORDAPPELLANTTHE LONDON BOROUGH OF HAMMERSMITH & FULHAMRESPONDENT
Before
His Honour Judge J R ReidDate 19 October 2000
[1]APPEARANCES For the Appellant MR JAMES MELVIN (FRU Representative) Free Representation Unit Fourth Floor Peer House 8-14 Verulam Street London WC1X 8LZ JUDGE REID QC : This is an ex parte preliminary hearing on the appeal by Miss Beresford against the unanimous decision of an Employment Tribunal sitting at London (North) on 2nd and 3rd May 2000, the decision being delivered on 22nd May 2000, by which the tribunal decided:
"The unanimous decision of the Tribunal is that the Applicant was fairly dismissed for redundancy and was not discriminated against by the Respondent contrary to the Disability Discrimination Act 1995."
The grounds of appeal assert that the dismissal was not due to redundancy but was due to disability and that the respondent, the London Borough of Hammersmith & Fulham, was in breach of duties laid down by virtue of the Disability Discrimination Act 1995 .[2]The appellant was first employed by the respondent as a nursery officer at the Westway Day Nursery from 20th March 1986. In April 1992 she had a number of days off work and therefore attended a first interview under the respondent's Capability Code. In January 1993 a report was received from the Occupational Health Physician that she was fit to work, but following absences, she was interviewed again under Stage 2 of the Capability Code in March 1993.[3]In April 1993 she moved to the Grove House Day Nursery. On 10th June 1993 a report was received from the OHP to the effect that she was fit to work. Unfortunately she was then absent from work from 10th September to 29th November 1993 as result of vertigo and a viral infection. She returned to work and a further report was produced in April 1994 regarding absences to the effect that the appellant " suffered recurrent ear, nose and throat symptoms associated with vertigo headaches and resulting in stress." However she was by then fit to work.[4]In July 1994 she underwent a further first stage capability interview. On 3rd December 1994 she was placed on the re-deployment register in connection with the closure of the Grove House Day Nursery. She requested voluntary severance in March 1995 but, in the event, she was redeployed to the position of nursery officer at the Westway Day Nursery. Two days later on 3rd April 1995 she underwent another Stage 1 interview.[5]On 10th August 1995 the OHP provided a further report to the effect that the appellant was "not fit for work because of vertigo related illness." In December 1995 the appellant was again reported by the OHP to be fit for work.[6]She moved to the Eridge Day Nursery on 1st January 1996. However she was absent from work because of continued vertigo and acute anxiety, stress and depression from January to August 1996. She underwent a return to work interview on 10th September 1996 when it was agreed that she could return to work with reduced hours and the position would be reviewed on a monthly basis. In the event, she returned to fulltime work on 28th November 1996. On 16th December 1996 she underwent yet another first stage interview under the Capability Code. The OHP provided a report on 17th December 1996 to explain that the appellant was coping with work. The appellant underwent a second stage interview on 21st March 1997. On 25th June 1997 the OHP reported that the appellant was fit to continue in her current post. But on 21st October 1997 the OHP recommended that the appellant should be redeployed on the grounds of anaemia and tiredness. It was recommended that the appellant should have a less demanding and challenging job and it was explained that the appellant was unable to cope with shift work. The appellant was then absent with a viral infection from 23rd October until 5th November 1997. On 6th November 1997 she returned to the Eridge Day Nursery but was asked to leave because of a recommendation had been received regarding ill health redeployment. On 7th November 1997 she was written to and advised she was being placed on the redeployment register with effect from 21st November 1997. On 13th November 1997 the appellant met Ms Conway, Principal Personnel Officer, to discus redeployment options. A redeployment profile was drawn up and signed by the appellant on 9th January 1998. In the meantime on 5th January 1998 an agreement was reached that the appellant should carry out administrative duties at the Eridge Day Nursery. It was expected that she would continue carrying out these duties until the end of March 1998. However, on 7th January 1998 the appellant was admitted to hospital with a urinary tract infection and did not return to work until 15th February 1999. On 29th January 1998 the OHP produced a report referring to the appellant's administrative work having the desired result and expected to see her again in three month's time. Presumably that report was written with the OHP was not aware that the appellant had been admitted to hospital.[7]On 20th March 1998 the employee relations department referred the appellant to the OHP for consideration as to whether or not she would be entitled to retire on ill health grounds. The OHP reported on 12th May 1998 that it would not possible to recommend ill health retirement because surgery was due to be carried out in August. On 20th May the appellant automatically came off the ill health redeployment register at the expiry of six months and this was confirmed to her by a letter of 4th June 1998.[8]On 12th June 1998 Mr Reilly wrote to the appellant calling her to a sickness hearing while she was still off sick. That was postponed in the light of her forthcoming operation. That took place on 26th August 1998 when doctors removed her left kidney.[9]On 21st September 1998 the sickness hearing was due to take place, but in the absence of the appellant this became an informal meeting between Mr Reilly and her union representative. The outcome was that Mr Reilly decided that personnel should be asked to conclude the matter of the appellant's redeployment before considering what steps were necessary to monitor her sickness absence. On 29th September 1998 Ms Devendra wrote to the appellant to invite her to a meeting on 30th October to discuss redeployment. The appellant did not attend that meeting because she was not feeling well.[10]The OHP wrote a report on 14th October 1998 explaining that the appellant was recovering from surgery and suggested that the position should be reviewed in two months' time. At the end of October 1998 the appellant returned to the redeployment register. On 13th November 1998 Ms Devendra wrote to the appellant asking her whether Ms Devendra should make any changes to her profile report. The appellant did not reply.[11]During the period the appellant was absent discussions took place between the respondent and the various unions affected by the closure of the Eridge Day Centre. On 17th November 1998 Mr Reilly wrote to the appellant explaining that a decision to close the Eridge House Day Nursery was to be considered by councillors on 9th December 1998. He clearly anticipated that councillors would make that decision, presumably on advice from their officer. He therefore warned the appellant that she would be placed on the redeployment register for potential redundancy with effect from 31st December 1998 and also wrote that her contract of employment would end on 31st March 1999 if no satisfactory alternative job was identified. Unfortunately it appears that she did not receive that letter.[12]On 15th December 1998 the OHP wrote to explain that the appellant was neither fit for the post of nursery officer nor for the post of family support worker although she might be fit for the latter by mid-January 1999 if it was set up on a part-time basis. On 11th January 1999 the OHP sent a further memorandum to explain that the appellant was still not fit for work although it was likely that she would be fit for the family support worker post sooner than the nursery officer post. The OHP also advised that the appellant "would almost certainly fall within the definition of disabled as defined by the Disability Discrimination Act" and suggested that the Council might consider whether any adjustments might enable her to return to work.[13]On 12th January 1999 she was interviewed for the position of family support worker but did not satisfy all the criteria for the post and was not successful.[14]On 22nd January 1999 Ms Devendra wrote to the appellant explaining that the respondent had been unsuccessful in redeploying her on the grounds of ill health. She added that in the light closure of Eridge Day Nursery with effect from 31st March 1999 the respondent would continue to seek redeployment for appellant on the ground of severance. She added that if at the end of the period the appellant had not been successfully redeployed she would be entitled to a severance payment as described in the letter of 17th November 1998. That was the letter the appellant had not received but it does not appear that the appellant clarified the reference to the letter at any time. On 29th January 1999 the appellant submitted a certificate from her GP indicating that she was fit to work. On 9th February 1999 it was agreed that the appellant could carry out administrative duties at the Askham Road Centre between 10 a.m. and 4 p.m. She started those duties on 15th February 1999 but then commenced annual leave on 16th February 1999 which continued until 22nd March 1999. On 18th February 1999 the OHP wrote to Mr Tume explaining that, in view of the appellant's "persistent symptoms, it would seem reasonable for her to continue working her current part-time hours for the next 3-4 weeks. I hope that at the end of that period of time, she will be fit for full-time administrative work. I understand that the nursery at which she was formerly employed is due to close at the end of March. I have therefore assumed that fitness to return to work as a Nursery Officer is no longer at issue."[15]On 12th March the appellant wrote complaining to the director about her treatment including her unhappiness of having to work at Askham Road. That was just before she was due to return from her annual leave.[16]On 24th March 1999 the appellant had a telephone conversation with Mr Tume. He explained that there was a position available for her in the education department in what the appellant was later to find out was the new Randolph Beresford Centre, a centre named after one of her relatives. He explained it would involve what was called pastoral care and that the appellant would not be working on the teaching side. He also told her that the head of the centre was a Ms West. The appellant asked when she would have to start and was told the start date would be 1st April. The appellant said that the only trouble she had about this was the distance and that she would probably have difficulties in getting there. There was a discussion about relocation expenses. On 24th March Mr Houghton wrote to the appellant calling her to a third stage interview. On the same day Mr Tume wrote to the OHP explaining the appellant was "currently a redeployee on the grounds of severance and has been matched to the post of Early Year Educator in the Education Department – a similar position to that of Nursery Officer." He attached a job description and asked the OHP to carry out a medical assessment on the information available from her medical notes to confirm whether or not the appellant was fit to carry out the full range of duties for that post.[17]The appellant attended at the Randolph Beresford Centre on 26th March 1999. She established that the position would involve lifting and informed Ms West that she would not be fit to carry out her duties. On 29th March the appellant's general practitioner wrote to the OHP explaining she saw no reason why the appellant would not be able to go back to work as a Nursery Officer although she added that "it would be sensible after such a major procedure and after such a break from work that she should preferably be able to be re-introduced back to her duties slowly, perhaps doing alternate days or half days initially and working up quite quickly to becoming full-time again over may a matter of a month."[18]On 31st March 1999 the appellant's period on the redeployment register formally expired but she continued to be employed. Throughout the different periods that the appellant had been on the redeployment register she had been sent various job bulletins but had not applied for any vacancy advertised in those bulletins. On 7th April 1999 the OHP wrote to Mr Tume. The main part of the memorandum indicated that the appellant reported that there had been no improvement in her symptoms since the OHP had see her in February. The OHP was unable to explain the reason for the symptoms presented to her by the appellant. The OHP also stated that the appellant did not feel well enough to undertake the work of an Early Years Educator but had told the OHP that she would feel well enough to return to work if a mutually acceptable administrative post could be found. It appears that after the memorandum had been dictated, the OHP received the general practitioner's report of 29th March 1999 and she appended a postscript concluding that there was no reason why the appellant should not go back to working with children.[19]On 23rd April the appellant attended a meeting with Mr Houghton. She was assisted by her union representative and Ms Devendra also attended to make notes. During an early part of the meeting there was a brief recess to determine if an additional report had been received from the general practitioner since 7th April but no such report was found. Subsequently such a report did come to hand but did not indicate that she was unfit for the work that she was supposed to be doing as an Early Years Educator. In the event it appears likely that the report was written on 23rd and as I say it was received later. Mr Houghton explained that on the basis of the information currently held the appellant's declaration that she was unfit to complete the duties of an Early Years Educator led "to an alternative option of severance at the end of her extended redeployment period on 30 April 1999." The appellant's union representative asked if light duties or reduced hours at the Beresford Centre would be possible but the appellant herself responded that this would not be suitable for her and also commented on what she described as her inability to travel to the Beresford Centre from her home in Croydon. Ms Devendra noted that there had been attempts to match the appellant during the redeployment period and that she had been matched to two positions of family support worker and access team member. The appellant had not, of course been successful in her interview for the position of family support worker and she had not attended an interview offered to her for the position of access team member because it was only a part-time position.[20]The appellant explained that she did not consider herself well enough to complete the duties of the post of at the Beresford Centre but then asked to be considered for a post at the Marshcroft Centre to which she would be able to travel. Mr Houghton explained that the role was exactly the same but that the position at the Beresford Centre was permanent whereas the position at the Marshcroft Centre was a maternity cover position only. Because the appellant had given her opinion she was unable to take up duties of the Early Years Educator at the Beresford Centre Mr Houghton said that there was no other alternative but to offer severance at the end of April 1999.[21]The position as the tribunal found it to be was that there was a genuine redundancy because of the closure of the Eridge Day Nursery and the tribunal went on to hold that the fact that it was the employee's union representative who had first raised the question of adjustment, did not mean that the employer automatically fell foul of the provisions of section 6 of the 1995 Act. The question of adjustment had, in any event, been removed from consideration by the appellant before the respondent Council had ever had a chance to enter into discussion about the matter because she was not prepared to work at the Beresford Centre.[22]The tribunal took the view that if an employee makes it clear that there are no adjustments she will consider reasonable there could not be a duty on the employer to offer or make adjustments and there could not, therefore, be a breach of section 6 for that reason.[23]The tribunal took the view that breach of the section 6 duty would only arise in circumstances where the appellant indicated that she was prepared to carry out the work being offered subject to certain adjustments being made. The tribunal pointed out that if a respondent then refused to contemplate such adjustments clearly there would be a breach of section 6.[24]The tribunal concluded therefore that there was no breach of section 6. There was a redundancy. There was no question of the appellant being treated disadvantageously because of disability and went on to say that even if it was wrong in this, the tribunal took the view that an employer could not still be penalised in circumstances where it wanted to retain the services of an employee but the employee themselves refused to continue working for the employer notwithstanding the offer of adjustments. In this case, the tribunal held:
"34 … that the reason the Applicant declined to take the position at the Beresford Centre was as stated in the telephone conversation with Mr Tume on 24 March and repeated at the meeting on 23 April, namely that the Applicant did not feel that she would be able to travel to the Beresford Centre from Croydon. That is why she asked if, instead, she could be appointed to the post at the Marshcroft Centre. However her travel difficulties had nothing to do with her disability so that the failure to accommodate this wish could not be a breach of the requirements of Section 6."
[25]It is said that by ground 1 of the Notice of Appeal that the decision that the dismissal was due to the closure of Eridge Day Nursery, and therefore due to redundancy was incorrect. That, it seems to us, was a pure question of fact. The assertion thereafter that the appellant was suffering from a disability and was unable to do the task expected of an employee doing her job was contrary to the medical evidence that she was capable of doing the Early Years Educator job which was available to her. The fact that other employees were re-assimilated and others took voluntary severance, but the appellant was the only one to take involuntary severance, does not, in our judgment, show that there was no redundancy. The assertion in ground 1 of the Notice of Appeal that the tribunal's finding was perverse on the facts, is simply untenable.[26]In ground 2 it is asserted that in effect the tribunal went wrong in considering the disability point. Although those grounds are particularised in 13 separate subparagraphs of which only one was abandoned, it seems to us that there is no point of law and no possible serious argument to suggest that the tribunal was wrong.[27]The position in this case was that the appellant did suffer from a disability. But the work that she was offered was work that, on the medical evidence, she was well able to do. The question of making adjustments for her therefore did not arise because her disability did not impinge on her ability to do the work that was available to her. Further the question of adjustments never arose because she was unwilling contemplate any adjustments. It is not the law, contrary to the submission made to us, that an employer is obliged to bring up the question of adjustments in order to comply with the obligations under the 1995 Act. The provisions of section 6, so far as they might be relevant here, are:
"(1) Where – (a) any arrangements made by or on behalf of an 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."
[28]So far as the appellant was concerned, the job offered was one which she was well able to do without adjustment on the medical evidence, notwithstanding her disability. The arrangements made by the employer did not place her at a disadvantage.[29]The tribunal rightly found as a fact that the appellant's dislike of the travelling arrangements which were necessary for her to reach the Beresford Centre had nothing whatever to do with her disability. Had there been any tenable suggestion that the arrangements made did place her at a substantial disadvantage then the duty of the employer would have been to take such steps as were reasonable in all the circumstances in order to prevent the arrangements or features having that affect, but the issue simply did not arise.[30]In the light of the position that the appellant was not willing in any circumstances to work in the Centre the duty did not arise because it followed from her unwillingness there was no way in which the employer could take steps to prevent the arrangements having the effect of disadvantaging her. The duty is simply to take steps. It is not a duty to raise the question of adjustments. It matters not who raises the question of adjustments in circumstances where they are relevant.[31]It follows, therefore, firstly, that the tribunal were right in saying that it was immaterial that it was the union representative who first raised the question; secondly, that the question of adjustment did not in any event arise. Thirdly, I should add, that since they were not at the time aware of any disability that made her incapable of doing the job that was offered, had there been such a disability the failure to take steps to deal with it could hardly have been termed unreasonable. But that last point does not on the facts arise.[32]In all the circumstances, it is clear to this Appeal Tribunal that the decision of fact made by the tribunal below led inevitably to the conclusion that there was a genuine redundancy and that there was no breach of any duty in relation to the 1995 Act. What shines through is a lady who had for health reasons done virtually no work for the Council over a considerable number of years and who did not take the post which was available to her, not because of any disability, but because of a disinclination to travel the distance that was required. That is reinforced by the fact that she was willing to do the identical job at a different place.[33]In the judgment of this tribunal the decision reached by the Employment Tribunal was right and there is no identifiable point of law on the basis of which it would be proper for this matter to go to a full hearing. The appeal will therefore be dismissed.