MRS SUSAN ARCHIBALD v FIFE COUNCIL [2002] UKEAT 0025_02_1212

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0025_02_1212Case No Appeal No. EATS/0025/02Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
MRS SUSAN ARCHIBALDAPPELLANTFIFE COUNCILRESPONDENT
Before
Lord Johnston Mr A J Ramsden Miss A MartinDate 12 December 2002
[1]APPEARANCES For the Appellant Mr D O'Carroll, Advocate Instructed by- Disability Rights Commission Riverside House 502 Gorgie Road EDINBURGH EH11 3AF For the Respondents Mr I Sharpe, Advocate Instructed by- Fife Council Legal Services Department Fife House North Street GLENROTHES KY7 5LT LORD JOHNSTON: This is an appeal at the instance of the employee against a finding of the Employment Tribunal that she had not been discriminated against on the grounds of disability against the background of a termination of her employment with the respondent council. For a number of years the appellant had been employed as a road sweeper, grade 1. Unfortunately, after undergoing surgery, she suffered a complication which led to severe pain in her heels, rendering it almost impossible for her to walk. In effect, this disabled her from carrying out her duties as a road sweeper and it was not disputed thereafter in that context that she was disabled within the meaning of the Disability Discrimination Act 1995 ("The Act"). She also made a claim for unfair dismissal but no attack is taken against the refusal of that issue. Furthermore, before us, the grounds of appeal relates solely to issues arising out of section 6 of the Act, namely, the duty of an employer to make adjustments in respect of disabled persons.[2]The decision of the Tribunal is as follows:- "However, as we have said, the applicant here relies upon the separate head of discrimination claim provided for in section 5(2) of the 1995 Act which provides that discrimination is established against an employer if:
"(a) He fails to comply with a section 6 duty imposed on him in relation to the disabled person; (b) he cannot show that his failure to comply with that duty is justified." and in that latter connection, section 5(4) provides that justification is established if the failure to comply with a section 6 duty is both material to the circumstances of the case and substantial. In Morse -v- Wiltshire County Council 1998 IRLR 352 the Employment Appeal Tribunal held that an industrial tribunal (as they were then called) hearing an allegation of section 5(2) discrimination has to go through a number of sequential steps as follows (and once more we quote from the rubric):- "
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. If such a duty is imposed, the tribunal must next decide whether the employer has taken all 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) arrangement 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. This, in turn, involves the tribunal inquiring whether the employer could reasonably have taken any of the steps set out in paras. (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. At the same time, the tribunal must have regard to the factors set out in s.6(4), paras. (a) to (e). 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 in accordance with s.5(2) and (4)." As we have said, it was the applicant's principal complaint in relation to her case under the 1995 Act that the respondents had failed to make reasonable adjustments for her in terms of section 6 of that Act. That, as Morse says, requires the tribunal to consider whether the respondents could reasonably have taken any of the steps set out in paragraphs (a) to (l) of section 6(3) of the 1995 Act and the only step which was argued here was that set out in paragraph (c) of section 6(3) namely "transferring him to fill an existing vacancy…" In that connection, during her time off work, the applicant had been sufficiently motivated to re-train in computers and administration so that hopefully, she would be able to obtain sedentary work with the respondents in an office environment. Thereafter, the applicant applied for something in excess of 100 sedentary posts in the respondents' employment. The first difficulty for the applicant in that regard was that in her role as a road sweeper, she was graded as labouring grade 1. The result was that since all the posts for which she applied were at a higher grade, and in that connection, the staff grade of GS1 carried a slightly higher basic wage than labouring grade 1 and was therefore regarded as being of a higher grade, the respondents' policy was that competitive interviews had to take place. This then gave rise to the next problem for the applicant, namely that she came from an industrial background and was competing therefore with comparators from a staff background and in that connection, also required to overcome the public perceptions of that comparison. During the course of her answers to the tribunal, the applicant quite fairly indicated that when she failed to obtain any of the sedentary posts for which she applied, she did not think that it was anything to do with her disability but rather that "they" did not look past the fact that she was a road sweeper. As we understood the argument made on the applicant's part it was to the effect that as a disabled person, she should not have been required to undertake competitive interviews but section 6(7) of the 1995 Act provides, reading short, that:
"…nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others." and, as we have said, the respondents' policy was that if applying for a job at a higher grade than the person's existing grade, then competitive interviews were required. Since we were not addressed, on behalf of the applicant, on any of the other steps set out in section 6(3)(a) to (l), we do not intend to consider them except simply to observe that on the facts before us, there were no other steps, with the exception of the possibility of transferring the applicant into another post, which the respondents could reasonably have made in relation to the applicant. Finally, if, contrary to the views we have just expressed, these respondents did indeed fail to comply with a section 6 duty, we then require to consider whether the respondents have established that their failure is justified which, on the basis of what Morse says, means deciding whether it has been shown that the reason for the failure to comply is both material to the circumstances of the particular case and substantial in accordance with section 5(2) and (4). We have set out earlier the observations of the Employment Appeal Tribunal in that regard in Heinz, Baynton, and Jones and had we required to reach this stage, which we do not, we would have been satisfied that the respondents' failure to take the step of transferring the applicant to fill an existing vacancy was justified on the basis of the policy of competition to which we have earlier referred. In all these circumstances, we do not consider that the respondents have unlawfully discriminated against the applicant by reason of her disability and, since we have already held that the applicant's complaint of unfair dismissal fails, this whole application falls to be dismissed."
[3]In the course of the debate, we were referred to Clark v TDG t/a Novacold [1999] IRLR 318 , Morse v Wiltshire County Council [1998] IRLR 352 , Kent County Council v Mingo [2000] IRLR 90 and Jones v The Post Office [2001] IRLR 384 .[4]The substance of the position adopted by Mr O'Carroll, Advocate, on behalf of the appellant, was that the Tribunal had misdirected itself in its application to section 6, inasmuch that it had not categorised the implementation by the Council of its policy of requiring competitive interviews for upgrading applications, as a failure to take reasonable adjustment in relation to the appellant's disability. He submitted to us that, properly understood, on salary scales, the job of road sweeper and the jobs to which the appellant had made application, apparently in the region of 100, were essentially the same, although this was denied by Counsel for the respondents. Although he put the matter in a number of ways, at the end of the day, Mr O'Carroll's submission depended upon the word "arrangement" which features in section 6, being simply the matter of fact that having become disabled the appellant was nevertheless required to carry out, in her existing employment, the job of road sweeper which because she was disabled she could not do and that placed her at a material disadvantage. Furthermore, Mr O'Carroll criticised the Tribunal's decision in relation to justification, assuming that there had been discrimination and categorised the decision as perverse.[5]Mr Sharpe, Advocate, appearing for the respondents, submitted succinctly that the policy to which reference had been made applied to everyone and could not therefore be discriminatory on any ground.[6]We have summarised the arguments shortly because we consider the issue can be equally dealt with.[7]It is important to recognise, as do the authorities, that the effective parts of sections 5 and 6 with regard to discrimination, raised two wholly separate issues. With regard to section 5(1), the less favourable treatment referred to is dependent upon a reason which relates to the disabled person's disability. This brings into play immediately, Mummery LJ's dictum in Clark supra , where he identifies that as distinguishing disability discrimination from that of sex and race. The comparison must not simply be with a disabled person under section 5(1) but whether or not the reason that has led to the less favourable treatment would not apply to another person who does not have the disability. However, when it comes to section 6 which raises the backdrop to section 5(2), the issue is quite separate and freestanding and, again, is identified by the authorities.[8]It is useful to set out subsections (1) and (2):- "(1) For the purposes of this Part, an employer discriminates against a disabled person if-(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and(b) he cannot show that the treatment in question is justified. (2) 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."[9]In our opinion, this is a three-stage process focussed by these subsections. First of all, there must be a disabled person. Secondly, he or she must be at a substantial disadvantage in comparison with persons who are not disabled and this is in marked contrast to the test applied to section 5(1) which we identified. Thirdly, and most importantly, the disadvantage in comparison with the other persons must arise from "arrangements" made by on behalf of the employer which are defined in subsection (2). Looking at that definition quite generally, we are clearly of the view that this points to, either a formal arrangement or informal working practice and goes far beyond the mere fact that a person in a certain job has become disabled. That is not an "arrangement" made by the employer, although, it of course, bases the initial establishment or otherwise of disablement in the workplace, the first of the three stages that we have set out and not in dispute in the present case.[10]Since this case has been focussed before us purely on the issues of section 6, we are entirely satisfied that the Tribunal reached a decision it was entitled to reach on that basis. The policy of the Council was clearly established and applied to everyone. That is the "arrangement" in terms of section 6 and it did not place the appellant at a substantial disadvantage per se because it applied to everyone. It follows that the question of taking reasonable steps of which illustrations are given in subsection (3) of section 6, does not arise in this case on this basis. It accordingly follows that there was no requirement in this context for the employer to depart from their policy of requiring competitive interviews in respect of applications for upgraded jobs.[11]In any event, such a policy, even if discriminatory, can be justified upon the basis that it is designed to obtain the best persons for the relevant job. At one point Mr O'Carroll seemed to suggest that, in any event, the employer should have removed the appellant from the application of the policy on grounds of disablement and that in itself was an adjustment that easily could have been made. While we recognise that they could have offered her another job without requiring competitive interview, we do not consider that they were compelled so to do because the obligation to make an adjustment had not been triggered for the reasons we have given. Finally, in this respect, we consider that the result of Mr O'Carroll's argument would be to place disabled people in a stronger or more favourable position than those who are able-bodied because he accepted that, in essence, the appellant had a right to redeployment because of her disablement and nothing more. That, in our opinion, is precisely what subsection (7) of the section is designed to avoid, the purpose of the legislation being to achieve a level playing field as between disabled and able-bodied persons. The Tribunal correctly identify this aspect of the matter.[12]In these circumstances we consider this appeal must be refused, although we remain concerned that when it comes to the subsequent questions of interviews which the appellant went through, questions of less favourable treatment under section 5(1) might well arise, or could have arisen. However, this is speculation on our part which precludes us from doing any more than suggesting that that was the line down which this case should have been taken, looking at the result of the interviews rather than the fact in principle that the applicant was required to submit to them.[13]In all these circumstances this appeal is dismissed.