MRS P A DRURY v BEDFORD HOSPITAL NHS TRUST [2002] UKEAT 1402_00_2503

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1402_00_2503Case No Appeal No. EAT/1402/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS P A DRURYAPPELLANTBEDFORD HOSPITAL NHS TRUSTRESPONDENT
Before
Mr Justice Holland Ms N Amin Mrs A GallicoDate 25 March 2002
[1]APPEARANCES For the Appellant MISS J BROWN (of Counsel) Instructed By: Disability Rights Commission 2nd Floor Arndale House The Arndale Centre Manchester M4 3AQ For the Respondent MR A FRASER-URQUHART (of Counsel) Instructed By: Capsticks 77-83 Upper Richmond Road London SW15 2TT MR JUSTICE HOLLAND : Introduction This is an appeal from a decision of an Employment Tribunal sitting at Bedford. The issue is disability discrimination.[2]A chronology affords a necessary introduction. As culled from the Extended Reasons of the 30 th September 2000, it is as follows:a. 28 th May 1988. The Appellant, Mrs. Pauline Drury, took up employment with the Respondents as Senior Sister of a busy surgical ward at their Bedford Hospital.b. 22 nd May 1999. She became ill, with sick leave starting two days later.c. 2 nd July 1999. Her condition was diagnosed as rheumatoid arthritis.d. 8 th July 1999. The fact of that diagnosis was communicated to her manager.e. 12 th July 1999. She was seen by Dr. Odunis of Bedford Occupation Health Services. He advised re-deployment or ill-health retirement.f. 13 th July 1999. There was a meeting with the Senior Nurse Manager. There were similar proposals for redeployment or retirement. The applicant made it clear that she wanted to retain her employment in the ward and her representative suggested re-organisation or job-sharing respectively so as to make her continued ward involvement feasible.g. 2 nd August 1999. By a letter of this date, the Appellant's consultant, Dr. Sarah Ray, wrote to the Senior Nurse Manager asking her to consider deferring any definite decision about the Appellant's job for the time being:
"there is a possibility that steroids will control the symptoms to a point where she may be able to take up her previous post." h. 3 rd August 1999. There was a further meeting with the Senior Nurse Manager. It was made clear there was now a need to recruit a replacement for the Appellant, albeit on a temporary basis. No further progress was made in arranging the Appellant's own future. Per the Employment Tribunal: "(The appellant) tells us that at the date of those meetings she was completely unable to work at all. There was no definite prognosis of her condition, it was not known whether she would be able to return to work, it was not known when, if ever, she would be able to return to work and it was not known what tasks she would be able to perform on her return." i. A replacement was advertised for in the Nursing Times. The subsequently compiled job description included: " … the current post holder is on sick leave. Should the present post holder be fit to return to work in the next 12 months, you will be redeployed to a post of the same grade within the Trust." j. 11 th September 1999. The Appellant's entitlement to sick pay was due to terminate. At some earlier stage it had been decided to extend the entitlement for a further month. k. 14 th September 1999. The Appellant intimated a decision to apply for ill-health retirement. Per the Employment Tribunal: "
The reason, or principal reason, for (the Appellant's) decision to apply for ill-health retirement was that she was under financial pressure and the lump sum payment which she would receive and which we were told amounted to £20,000 and the monthly pension thereafter would, to a large extent, have relieved that pressure." l. 4 th October 1999. A further meeting to discuss the Appellant's future had to be cancelled: she was still ill and she thought that she might have contracted tuberculosis. m. 15 th January 2000. Her employment ended, her application for ill-health retirement having been pursued and accepted. n. 8 th March 2000. Her ET1 complaining, inter alia, of unfair dismissal and disability discrimination. The Employment Tribunal[3]In the event the Employment Tribunal dismissed all the complaints. It is with respect to its decision as to the alleged disability discrimination that this appeal lies. That said, it is helpful to view the Employment Tribunal's reasoning as a whole. Taking, first, the issue as to unfair dismissal, the Appellant's then case was that in and from the 13 th July the Respondents had been determined that she should retire on grounds of ill health. Pursuant to that policy her entitlement to sick pay was curtailed so as to end before optimum recovery and thus before she would have been in a position to return to her work on the ward. Having therefore to anticipate that curtailment of income she was driven to apply for ill-health retirement, that is, she was constructively dismissed. In the event this line of argument failed. The Employment Tribunal made two decisive findings of fact: first, that with respect to sick pay "it was not unreasonable for the Respondents to refuse a request for a further extension of (the Appellant's) entitlement"; and second, that the application for ill-health retirement was self-motivated, the Appellant being attracted by its terms and being conscious that acceptance of such did not itself preclude further National Health Service employment as and when her health permitted.[4]Turning to disability discrimination, the Appellant's then case as set out in the ET1, and as understood by the Employment Tribunal, involved invoking the statutory duty to make adjustments to accommodate her as a disabled person – see Section 6 Disability Discrimination Act 1995 – and contending "it ought to have been a practical option to find a suitable vacancy within the Service so that she could be kept in employment." The response of the Employment Tribunal following fact finding was:
"Until the Respondents knew what (the Appellant's) health would permit her to do and the likely time scale of her recovery, it was not in a position to make firm proposals and the tentative first thoughts that it did make were rejected by (the Appellant). The Appellant) took the decision to retire before her health had improved sufficiently to enable firm proposals to be brought forward. We therefore accept the Respondent's case that at the time (the Appellant) took her decision they could not have discharged that duty."
[5]Before departing from the Employment Tribunal and its decision we accept that in the course of submissions to it some consideration may have been given to the potential for 'cross fertilisation' between the heads of complaint and in particular to the potential for the Respondents fulfilling their Section 6 obligations by further extending the period during which sick pay would be forthcoming. However it is apparent that any such argument (if advanced – and it is not referred to in the Extended Reasons) could have foundered upon the then perceived ambit of Section 6(11):
"This section does not apply in relation to any benefit … payable in money … under a scheme or arrangement for the benefit of employees in respect of … (c) Sickness."
Seemingly the Respondents written final submissions invoked this sub-section; no attempt was made to distinguish its ambit. The Appeal[6]As initially advanced to this Tribunal this appeal related to the Respondents' failure to create for the Appellant an interim supernumerary post and the terms upon which they advertised for a replacement – in such respects were they complying with their statutory obligations? However after the inception of the appeal and in September 2001 this Tribunal (presided over by Miss Recorder Slade QC) in London Clubs Management Ltd v. Hood (2001) IRLR 719 construed Section 6(11) as relating to sources of benefit payable in money other than sick pay in that the latter is a payment "made by the employer to an employee rather than for the benefit of an employee." Fuelled by this decision, Miss Brown for the Appellant sought and obtained leave to re-amend the Notice of Appeal. On the basis of such she submitted that the Employment Tribunal had erred in law inasmuch as it had confined its assessment of the Respondents' compliance with the Section 6 duty to matters other than extending the period of sick pay payment. As at the 3 rd August 1999 the Respondents had had sight of the identification by the Appellant's consultant of the possibility that steroids would control her symptoms so as to enable her to contemplate returning to her previous employment. Granted that as at that date the Appellant was too ill to benefit from other 'adjustments', the sympathetic extension of sick payment to, say, December would have served to fulfil the Section 6 duty. The failure to prescribe more than one month's extension (to the 11 th October) was unreasonable and contributed to the Appellant's decision to opt for ill-health retirement. Finally, as now construed by this Tribunal, Section 6 was irrelevant.[7]In response Mr. Fraser-Urquhart takes several points:a. It is arguable that the issue now raised by the Re-Amended Notice of Appeal is not a new one. True, the Extended Reasons do not in terms advert to the sickness pay issue in the context of Section 6 adjustments, but the fact of an extension limited to one month was raised by the Appellant in her ET1 in the context of Unfair Dismissal and, as Miss. Brown had pointed out, the Respondents' written final submission to the Employment Tribunal included what was presumably then perceived to be a relevant submission, namely that Section 6(11) precluded consideration of extension of sick pay as a potential Section 6 adjustment. However, so Mr. Fraser-Urquhart submits, on this premise there is the already cited finding of fact against the Appellant: "(The Appellant's) contractual entitlement to sick pay would have expired on the 11 th (September) 1999. The Respondents agreed to extend (the Appellant's) sick pay for a further month and it was not unreasonable for the Respondents to refuse a request for a further extension of (the Appellant's) entitlement", see paragraph 8(iv).b. It is arguable in the alternative that this issue is a new one, not ventilated before the Employment Tribunal, hence the silence on the point in so much of the Extended Reasons as relates to Disability Discrimination. On that premise, he submits, there is authority to the effect that save in exceptional circumstances it would be wrong for this Tribunal to consider a point of law that had not been raised before the Employment Tribunal, and particularly so when proper consideration of the point required further factual investigation to be made: Kumchyk v. Derby City Council (1978) ICR 1116 and Jones v. Governing Body of Burdell Coutts School (1998) IRLR 521 . If the factual finding cited above does not dispose of this issue then there is a need , he submits, for further evidence and findings and it is not in point that as then represented the Appellant did not make the submission as to the meaning of Section 6(11) that found favour in London Clubs Management v. Hood op. cit. Again, he submits, it is not in point that the Employment Tribunal did not on its own initiative pick up and pursue this point: Kumchyk v. Derby City Council op. cit. at page 1123 and Mensah v. East Hertfordshire NHS Trust (1998) IRLR 531 .[8]Finally, Mr. Fraser-Urquhart draws attention to a passage from the judgment of the Court of Appeal in Jones v. Burdell Coutts op. cit. at 525:
" … the search for justice required some difficult reconciliations of conflicting principles, and there is a strong public interest in finality in litigation. The rule of practice embodied in the authorities … is not regarded as a matter of technicality but of justice to a respondent who maybe plunged into yet more litigation … sometimes the rule does result in a case being decided on a basis of law that is not merely arguably, but demonstrably wrong by the time it reaches the appellate court …"

Judgment

[9]We have to accept the submissions of Mr. Fraser-Urquhart and reject such of Miss Brown – whilst paying tribute to the force and clarity of her advocacy. If we had to opt we would favour his first option, that is, that the point now sought to be raised is the subject of an adverse finding of fact by the Employment Tribunal so as to be untenable. That said, we accept his submission that if that finding is not decisive then it is now too late to reopen this aspect of the matter with the way opened by London Clubs Management v. Hood op. cit. The force of the authority cited by him is overwhelming.[10]We would add for the sake of completeness that we have not overlooked the initial grounds of appeal viz that, leave aside sick pay entitlement, the Section 6 adjustments had been inadequate and that the finding by the Employment Tribunal that further attempts at adjustment were precluded by the application for ill-health retirement in September 1999 was arguably perverse. In the event no submissions were advanced to sustain this limited case but, as we think, there could have been no realistic prospects for success. Again, the relevant findings of fact cannot be impugned and are decisive.[11]In the result the Appeal must be dismissed. We are sorry for the Appellant although, given the substantial proceeds flowing from ill health retirement and the prospect of a return to NHS employment, it may be that the financial prospects for this litigation were never promising.