Fu v London Borough of Camden [2001] UKEAT 1366_99_3001

EAT
Fu v London Borough of Camden
[2001] UKEAT 1366_99_3001 · 2000-12-07
[1]This is an appeal from the decision of the Employment Tribunal sitting at London (North) over three days in June and three in August ending with 6th August 1999. The Employment Tribunal rejected the appellant’s claim for disability discrimination. The respondents had dismissed the appellant during a period of sickness absence and due, ostensibly, to the uncertain prognosis and the absence of a date for return to work. The appellant contended that she was discriminated against by reason of that dismissal and that the respondents failed to consider making reasonable adjustments which would have enabled her to return to work then, or at an ascertainable date in the not too distant future.[2]The appellant’s grounds of appeal assert that the Employment Tribunal misunderstood or misapplied the relevant law in relation to the claim as referred to in section 5(2) and in relation to discrimination as defined in section 5(1) of the 1995 Act. Further the appellant contends that the Employment Tribunal erred in its approach to the evidence of Dr McGrath.[3]It seems to us that, when examining the decision of the Employment Tribunal, it is important to have regard to the overall scheme of the reasons set out. The learned Chairman, after recording the earlier rejection of the claim for unfair dismissal, summarised the cases of the parties as set out in the particulars of claim from the appellant and the reply of the respondent. In paragraph 4 of their reasons the Employment Tribunal then set out the two broad issues, first as to reasonable adjustment and secondly as to whether the dismissal constituted discrimination. They then continued to consider the evidence. First they considered and made some findings of fact in the rest of paragraph 4 and in paragraphs 5, 6 and 7 as to the appellant’s evidence. Then the tribunal considered the respondents’ evidence in paragraph 8. In paragraph 9 the Employment Tribunal set out their findings in relation to what was called the ‘earlier period’, that is before an accident in April 1997 following which, at the time of her dismissal, the appellant had not been able to return to work. The Employment Tribunal concluded in relation to that earlier period:
“We cannot, however, find, in respect of this earlier period, that the Respondents were in any way in breach of their duty under section 6 of the Disability Discrimination Act 1995 and consequently in respect of this part of the claim we reject [ the appellant’s ] allegations.”
[4]Mr Martin, counsel for the appellant, has said that it was not the appellant’s case that there was ‘section 6 discrimination’ in the earlier period. At worse, therefore, this finding was surplusage. However, he does maintain that there were ‘historical’ matters, relevant to the issue of whether there was ‘discrimination’ under section 5(1). We return to that later.[5]The Employment Tribunal then turned to the later act, namely the dismissal, and in paragraph 10 they set out their understanding of the effect of the Disability Discrimination Act in some respects. They then set out their findings in relation to that, considering in particular the way in which the respondents determined the termination of employment, which in the event took the form of ill health retirement. There does not appear to have been an issue as to whether there was a dismissal or retirement, the Employment Tribunal treating the matter at all times as one of dismissal in substance. They concluded their findings in paragraph 15.[6]The facts established that the appellant had begun work for the respondents in 1991. In 1993 she became Gospel Oak District Housing Officer. In July that year she sustained an accident at work and apart from anything else she needed a walking stick thereafter. In November 1993 she sustained a further accident and she was away from work for a year.[7]The appellant then worked from November 1994 until April 1997. She had a good attendance record. The Employment Tribunal recorded that during this period she requested a special chair to relieve her pain. In early 1995 there was an assessment of her special needs but it was not until August that year that the chair was provided, which, in any event, the appellant said was unsuitable.[8]Against that background after a return to work in November 1994, there was the final accident in April 1997 when the appellant sustained injury to her right side and leg. Whilst she appears to have worked a little in May and June, she was unable from then on to work at all. There were a number of medical examinations. On 13th May 1998 the appellant was offered ill health retirement which, after the respondents indicated that the alternative was dismissal, the appellant accepted.[9]The appellant first challenges the approach of the Employment Tribunal under section 6 and section 5(2) of the 1995 Act. Section 6 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. … (3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1)- (a) making adjustments to premises; (b) allocating some of the disabled person’s duties to another person; … (h) acquiring or modifying equipment; … (4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to- (a) the extent to which taking the step would prevent the effect in question; (b) the extent to which it is practicable for the employer to take the step; …”
Section 5(2) provides:
“(2) For the purposes of this Part, 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. …”
[10]Mr Martin submits that in order to apply that section the tribunal must do a number of things which this tribunal did not do. First he said the tribunal must follow the sequential steps set out by Bell J in Morse v Wiltshire County Council [1998] IRLR 352 namely first to decide whether the provisions of section 6(1) and (2) impose a section 6(1) duty on the employer in the circumstances of the case, and secondly, if there is such a duty, to decide whether the employer has taken such steps as it is reasonable in the circumstances of the case in order to prevent the arrangements in section 6(1)(a) and or the features in section 6(1)(b) having the effect of placing the disabled person at a substantial disadvantage in comparison with persons who are not disabled. Thirdly, that will involve the tribunal in enquiring whether the employer could reasonably have taken any steps, including those suggested in section 6(3), whilst having regard also to the factors set out in section 6(4). Fourthly, and only if the tribunal finds a failure to comply with a section 6 duty, the tribunal must then turn to section 5 and decide whether the employer has shown that such failure to comply with its section 6 duty is ‘justified’ which will mean deciding whether the employer has shown that the reason for the failure to comply is both material to the circumstance of the particular case and substantial. We pause to observe that the Employment Appeal Tribunal in that decision held back from suggesting that there was some obligation upon the Employment Tribunal to frame their decision in a particular way or to quote particular extracts of the statute, or the code of practice, but it was suggested that “it may well be wise”. However, we point out that it is more than 2½ years since that judgment and tribunals are of course much more familiar now with the principles involved.[11]This appeal concerns the act of dismissal. Although the dismissal itself does not fall within section 6, this point was considered by the Court of Appeal in Clark v TDG Ltd t/a Novacold [1999] IRLR 318 where in paragraph 92 Mummery LJ pointed out:
“… an employee who has been dismissed may bring a case under s.5(2) for pre-dismissal discrimination involving a breach of s.6 duty.”
[12]In paragraphs 11 to 14 the Employment Tribunal made their findings as to the pre-dismissal actions of the respondents. There was an ill health hearing on 9th February 1998. The appellant’s representative suggested that the hearing was premature in view of the pending medical examination. The respondents decided to postpone the hearing for four weeks. The Employment Tribunal found that the decision to postpone was a perfectly proper one. The reconvened hearing took place on 29th April 1998. A report from occupational health was circulated:
“in which the opinion was given that they could not say when [ the appellant ] was likely to be able to return to work.”
Angela Spooner, for the respondents, said at that meeting that she would consider the matter. She then obtained the opinion of the Occupational Health Unit as to whether ill health retirement was appropriate. Dr McGrath, the locum in the Occupational Health Unit confirmed that it was, but that the appellant did not wish to be considered for ill health retirement.[13]So it was that on the 13th May the appellant was given the choice between ill health retirement and dismissal and opted for the former. The Employment Tribunal heard evidence from Dr McGrath and summarised his evidence in paragraph 13 as follows:
“… His view had been, and was conveyed to the committee, that he could not give a realistic date for the [ appellant’s ] return to full duties. Even if the requirement to do home visits was removed from her job description he would still be unable to give an opinion. His view was that, while originally the matter had to be considered under Point 7.3.2 of the Ill Health Policy, namely that there was an underlying medical condition that would improve at a certain point, the time had come when this should be changed to 7.3.6, namely that there was an underlying medical condition which meant that the employee was permanently incapable of carrying out any job in the Council for medical reasons. …”
The Employment Tribunal found that:
“was reasonable for him to say that he was unable to give any firm idea of when the [ appellant ] might be able to return to work.”
[14]It is to be noted that the medical view, as there expressed, concerned one adjustment, namely the removal from the appellant’s job description of home visits, and even considering that, came to the view that the appellant was “permanently incapable of carrying out any job in the Council for medical reasons”. However, it is also notable that the Employment Tribunal in their decision and Dr McGrath in his evidence there expressed did not apply any other adjustment that had been contended for to the issue as to whether the appellant could return to work.[15]Having read the decision of the Employment Tribunal we have asked ourselves “why was the appellant incapable of carrying out any job in the Council for medical reasons?” “What was the underlying condition and in what way did it prevent the appellant from performing her duties then, or after the anticipated improvement?” Those questions seem to us to raise the issue of the respondents’ pre-dismissal obligations, in the context of the ill health procedure, to make reasonable adjustments under section 6. The answer to those questions may be that the underlying medical condition was so serious that no adjustments could be made. Another answer may be that the respondents, in consulting with Dr McGrath, did not engage with him, nor he with them, as to the very question as to the extent to which any adjustments could assist the appellant back to work apart from the removal of home visits to which specific reference was made. Having read the decision and in a way that we expand upon hereafter, we have been unable to discern which, if either, of those answers was in the mind of the Employment Tribunal when reaching their decision.[16]The Employment Tribunal had recorded the evidence of the appellant in paragraph 6:
“In relation to the question of her dismissal, the [ appellant ] asserted that at all the ill health hearings she was ready to return provided appropriate changes to her working conditions were made. She required, she said, a voice-activated computer retrieval system, a hands-free telephone, a specially adapted chair and shelves which rendered the files on which she had to work readily accessible. She alleged that the Respondents did not take seriously her proposals and forced her into retirement on the grounds of ill health. 7 The [ appellant’s ] evidence was supported by evidence from Lynn Ramsey and Diane Steadman, who are the Disabilities Officers for UNISON. Lynn Ramsey said that it was made clear that the [ appellant ] could return to work provided adjustments were made to her working conditions, and Diane Steadman said that the Respondents had failed in all the circumstances to provide any adjustments in order to enable the [ appellant ] to continue to do her work.”
[17]The Employment Tribunal then relate the respondents’ evidence in this regard. It shows that home visits had been removed, that adjustments were made and went on:
“had the [ appellant ] communicated to the Respondents the difficulties from which she was suffering, then arrangements would have been made to overcome these difficulties as funding was provided by PACT to enable the [ appellant ] to perform her work.”
Reference was then made to the respondents’ not remembering there being a problem with the appellant’s chair, that what appeared to be an adequate chair was provided, that the appellant received assistance in collecting and replacing files and concluded with the words that Angela Braithwaite:
“was of the opinion that, provided the [ appellant ] had the right equipment, she was capable of doing the work required of her.”
However, it appears that the Employment Tribunal were there relating the evidence as it applied to reasonable adjustments to enable the appellant to continue at work before her final accident. We come to this conclusion not only from the way in which that paragraph seems to refer to adjustments made whilst the appellant was still at work, but from the fact that the Employment Tribunal then went on to consider the period before the appellant’s last accident, before her final absence from work.[18]In paragraph 10 of their reasons the Employment Tribunal then set out some of the legal tests in their own words. The learned Chairman said:
“… If, in disregard of the disability suffered by the disabled person, [ the employer ] dismisses [ the disabled person ] without properly considering whether in the circumstances it is possible for [ the employer ] to make adjustments, then [ the employer ] subjects the disabled person to a detriment by dismissing him. [ The employer ] is entitled to examine the situation of the disabled person and to come to the conclusion that the prospects of that disabled person being able in the future to work, even if suitable adjustments are made, are so small that his further employment must be considered to be unlikely. [ The employer ] is then entitled to dismiss the disabled person …”
[19]Mr Martin has sought to suggest that the exposition of the law in that way is not precisely in accordance with the statute. By and large, nonetheless, in language which the learned Chairman no doubt constructed so as to try to make the reasons intelligible to the lay person as well as to the lawyer who is used to reading complex statutory provisions, the exposition seems helpful, subject only to one matter. Mr Martin suggests that here, and elsewhere in the decision, the Employment Tribunal appear to have considered that their task was to determine if the actions of the employer were within a “band of reasonable responses” and not, as they should, to ask themselves to form a judgment as to whether such actions were reasonable. Here, it is suggested in the decision that the employer was entitled to reach his decision by coming to his own conclusion. However, whilst a strict examination of the words used by the learned Chairman at that point can produce the argument which Mr Martin advances, it is clear to us that the tribunal at other stages ask themselves to decide the question as to whether the employer was reasonable and we are satisfied that in this respect the tribunal did adopt the correct approach.[20]However, such details of construction of the tribunal Chairman’s decision aside, when we look to see the findings of fact as to the ill health procedure in the light of the essential question which the Chairman himself posed, namely whether the dismissal followed a proper consideration of whether it was possible to make reasonable adjustments, we find that the decision of the Employment Tribunal is silent save in relation to the home visits to which I have already referred.[21]Further questions arise. Was the Employment Tribunal finding that because the medical advice disclosed that the appellant was unfit to return to work, the respondents were justified in not considering reasonable adjustments because they could not have helped, or was the medical advice and the acceptance of it by the respondents reached in the light of such reasonable adjustments which could have been made? In other words, did the Employment Tribunal consider, for reasons which they themselves examined, that the reasonable adjustments which the appellant herself had said would enable her to return would not in fact have done so? There seem to be two threads running through the reasons of the Employment Tribunal. On the one hand, there is the evidence that the appellant suggested reasonable adjustments which would permit her return to work. On the other, there is the medical diagnosis expressed of permanent unfitness. What is the relationship of the two? We find that the Employment Tribunal erred in law in not asking themselves the extent to which, if at all, the medical condition so supervened the possibility of reasonable adjustments that the respondents were justified in not making them.[22]The Employment Tribunal went on to record their conclusion on this aspect of the case in paragraph 15 as follows:
“Our finding on this is that the Respondents, before considering the dismissal of the [ appellant ] on grounds of ill health, went very fully and very carefully into the position which presented itself. They considered, we find, the question of the [ appellant’s ] disability and came reasonably to the conclusion that, even if adjustments were made, the [ appellant ], who it must be remembered had recently presented a medical certificate saying that she would be unfit for work for a further 13 weeks, would be unable in the future to be usefully employed by the Respondents.”
Was the appellant producing such a certificate as a statement of what would happen whether or not there was reasonable adjustments, or was she presenting a certificate which kept her off work because there were no such reasonable adjustments? It seems to us that on the face of the decision there is no express relationship between the question as to what reasonable adjustments could be made and the question as to the extent to which the appellant was unable to return work with or without such adjustments. For the reasons that we have already expressed, and in the unanswered questions that we have posed, it seems to us clear that on the face of it the decision could fit either sequence of events.[23]On behalf of the respondents, Ms Morgan pointed out the fact that the appellant had already been absent from work for a year and was proposing a further three months absence and invited us to conclude that implicit in the decision is the finding that the condition of the appellant was so serious that it had, as it were, gone beyond questions of reasonable adjustment and was a finding that the appellant was simply unfit for ‘work’ at all with the respondents. But we asked what was the matter with the appellant and what particular disability and difficulties did she have? No one in the tribunal was able to answer that question for us. It seems to us that a decision of an Employment Tribunal which addressed the issue as to whether the employer was justified in not implementing reasonable adjustments because they would not enable the employee to return to work, would almost inevitably examine the adjustments on the one hand and the symptoms which could or could not be relieved by such adjustments on the other. There is no such examination in the decision, highlighted by the fact that no one before us would tell us what was the precise disability of the appellant. There may be cases in which such a long absence is a symptom of serious disability which would not be assisted by reasonable adjustments. On the other hand, we could envisage circumstances in which the most minor physical impediment at work would happen to be so central to the disability of a particular employee that, unless it were rectified, it would prevent a return to ‘work’.[24]We find first that the Employment Tribunal, whilst reciting the evidence that the appellant wanted these reasonable adjustments, never made findings as to whether they were reasonable or whether they would alleviate the symptoms of the appellant. Secondly, in their findings of what happened during the ill health procedure and particularly in identifying the medical evidence, it appears that the medical advice considered only the home visits and otherwise considered the current work and current medical condition of the appellant. If anything, this tends to suggest that the third stage of whether the modification of the working environment would permit a return to work was never considered. In this case section 6 required consideration not only of the adjustments proposed, but of the question as to whether they were reasonable and the further question as to whether the respondents were justified in not implementing them in advance of dismissal and so as to avoid it. The Employment Tribunal found that the respondents postponed the ill health procedure for further medical examinations, that later the medical diagnosis was that it was not possible to say when the appellant was likely to be able to return to work with a medical diagnosis that there was an underlying medical condition rendering the appellant permanently incapable of carrying out any job in the Council for medical reasons. This was followed by a finding that the respondents then explored the question of ill health retirement with the result set out already.[25]Accordingly we conclude that the Employment Tribunal erred in law in applying section 6 and section 5(2) of the Disability Discrimination Act 1995 in failing to consider the extent to which, if at all, the adjustments proposed may have overcome the medical symptoms of the appellant which otherwise prevented her return to work. That issue lay at the heart of the appellant’s case and we conclude that this appeal must succeed.[26]A number of other arguments were raised by Mr Martin. He suggested, following Ridout v TC Group [1998] IRLR 628 , that the Employment Tribunal should have referred specifically to the code. Whilst it is true that, sitting 2½ half years ago, the Employment Appeal Tribunal considered that at that stage of the development of the law it was important to do so, it seems to us that there is no rule of law as to what must appear, word for word, in the decision of an Employment Tribunal. Indeed the history of case law on the contents of the reasons for a tribunal’s decision leaves it very much to the discretion of the individual Chairman. Of course section 53 of the Act imposes an obligation on the tribunal to in fact consider the code and whilst something could have been said about certain of the propositions within it in this particular case, we are not satisfied that the tribunal failed to consider it. The same goes for the need to set out word for word the terms of the statute. Some Chairmen may find it very helpful to do so, but we hold back from suggesting that there is some rule of law to that effect.[27]Mr Martin suggests that the Employment Tribunal adopted the stance of a tribunal hearing a case of unfair dismissal, and assessed the reasonableness of the respondents’ approach rather than the tribunal asking themselves to form their own judgment as to the issues of adjustment, justification and the other tests under the statutes. Whilst it is always possible to pick over the individual words within a decision, we are satisfied, looking at the decision overall, that the tribunal were forming their own judgment.[28]Mr Martin complains that although there was an agreement followed by a direction from the tribunal that there would not be expert opinion given in the case because of the late production of Dr McGrath’s report, and the absence of such evidence from the appellant, the Employment Tribunal nevertheless treated his evidence as expert evidence. There was an earlier directions hearing in which the Regional Chairman recorded:
“As to expert evidence about reasonable adjustments, the Chairman did not encourage this as in her opinion such reasonableness is primarily a matter for the Tribunal which is unlikely to be assisted by expert evidence.”
We can understand that the appellant and Mr Martin may as a result have interpreted that as leading to their excluding all medical evidence. The dividing line between what is evidence of fact and what is evidence of opinion where doctors, who have actually been engaged in treatment, are giving evidence is always a difficult one to fix. In this case Dr McGrath was not giving any sort of opinion as an independent expert who comes to the case, as a witness would do, as to reasonable adjustments and their application to the disability of an employee. Dr McGrath appears to have been giving evidence of his factual diagnosis as transmitted to the respondents. He may, if asked, have also given evidence as to his advice as to reasonable adjustments. Strictly speaking this seems to us to have been evidence of fact. In any event, matters of opinion were canvassed by Mr Martin in his cross-examination of Dr McGrath. Whilst the preparation of these cases is always difficult and the gauging of which witnesses to call is a matter of fine judgment and whilst we accept in this case Mr Martin may have avoided calling evidence which he would have preferred to have called because of the advice of the Regional Chairman, we find that there was no error of law in the way in which the tribunal received or analysed that evidence.[29]Mr Martin submitted that the Employment Tribunal failed to make a finding as to whether there was less favourable treatment and in this connection he wished to rely on the ‘historical’ matters referred to earlier in this judgment. However such less favourable treatment was clearly inherent in the decision and we find no error of law in this connection[30]Finally, there were other points of appeal in relation to the tribunal’s approach to discrimination under section 5(1). In view of our findings elsewhere it is unnecessary to explore this further.[31]This appeal is allowed. The decision is set aside and the application will be remitted for rehearing before a freshly constituted tribunal. We would observe that the first hearing lasted a very long time. We make no criticism of that, of course, but we would invite the very experienced counsel that appear for both parties to identify the real central issues in this case and the important evidence relating to it so as to ensure that now each fully understands the case of the other the next hearing can be as expeditious as the justice of the case will permit.