MR A JENKINS v LEGOLAND WINDSOR PARK LTD [2003] UKEAT 1155_02_0307

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 1155_02_0307

Case No Appeal No. EAT/1155/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A JENKINSAPPELLANT

LEGOLAND WINDSOR PARK LTDRESPONDENT

Before

His Honour Judge J R Reid

Date 3 July 2003

[1]APPEARANCES For the Appellant MR DANIEL MATORU (of Counsel) Instructed by: Mr A Jenkins 7 Maple Close Sonning Common Reading Berkshire RG4 9NG For the Respondent MR RICHARD LEIPER (of Counsel) Instructed by: Clifford Chance Limited Liability Partnership 200 Aldersgate Street London EC1A 4JJ HIS HONOUR JUDGE J R REID QC This is an appeal against the decision of an Employment Tribunal held at Reading on 15 and 16 August 2002. The Tribunal held that two claims by Mr Jenkins against his former employer, Legoland failed. The first was a complaint under the Disability Discrimination Act 1995 and the second was a complaint of constructive unfair dismissal under sections 95 (1) (c) of the Employment Rights Act 1996 . This appeal is concerned only with the dismissal of the claim under the Disability Discrimination Act 1995 , and it is not necessary to refer further to the constructive unfair dismissal claim. The Facts Material to the Appeal

[2]In July 1987, at the age of 16, the applicant had a motorbike accident in which he injured his left arm. As a result of that accident his arm has withered and he is required to wear it in a sling.

[3]Legoland runs a site within Windsor Great Park. It employs between 250 and 1000 people depending on the time in the season. The organisation of the site is broken up into a number of distinct areas with various attractions according to the age appropriateness of the relative attractions. Mr Jenkins started work for Legoland on 3 March 1998 and worked in a number of capacities, finally as an Attractions Team Leader.

[4]In response to a committee of employees, Legoland set up a reward and recognition committee which proposed that long service by employees should be recognized. Employees of three years' service were to be given a model as a trophy to mark their service. Employees who had served five or seven years were to receive different types of trophies. The award ceremony on 16 March 2001 was the first time such awards were made. The idea was that the models presented to employees with three years service should be personalised and should reflect the individual concerned.

[5]Mr Jenkins was one of those to receive an award at this first award ceremony. The award he received comprised a model of a man in blue with his right arm in a sling. It was the only model that showed unhappy and other than normal features, emphasising the disability which he had tried hard to overcome, and making the crass error of showing the right arm in a sling rather than the left arm. He was greatly distressed by the receipt of this model.

[6]He attended work for two further days but on 23 March was certified sick from work and did not return to work at Legoland. His situation was summed up by Dr Longhurst, a consultant psychiatrist who saw Mr Jenkins: "This man is suffering from a depressive episode triggered by an insensitive experience at his place of work".

[7]According to the schedule provided by Legoland 58 employees were presented with models at the ceremony. The schedule described the models briefly and in some cases elliptically. Photographs of a number of the models were included in the documents bundle. Of those 58 employees only three did not have something in their model which referred to or represented their job. The three were Mr Jenkins and the two employees in Human Resources. The two HR employees were presented in the one case with a "pregnant female model with dark hair" and in the other with "a tall dark-haired female model with glasses". The Disability Discrimination Application

[8]The application to the Tribunal was preceded by correspondence. The Citizens Advice Bureau which initially represented Mr Jenkins formulated the complaint in this way: "The trophy presented at that ceremony was in the form of a man with his arm in a sling which highlighted the fact that Mr Jenkins has a disability of which the company must be aware. This caused much distress to him as soon as he realised the type of model which had been presented to him. It has subsequently caused such distress and depression that he has been unable to work since then and has been signed off sick by his GP".

[9]On 25 May 2001 Mr Jenkins served a complainant's questionnaire under section 56 (2) (a) of the Disability Discrimination Act 1995 . In it he said at paragraph 2:

"After working at Legoland for over three years I received an award from the Managing Director at a presentation ceremony on the 16th March 2001 attended by my colleagues. I understand that the purpose of such awards/presentation intended to be motivational and the normal procedure is for recipients to be given a Lego model of the ride or attraction on which they work In my case, however, I was given a model of a man with one arm in a sling, which I have to assume was a representation of the fact that I have a permanent disability as a result of which my left arm is always carried in a sling. When I realized the significance of this I was most upset and my immediate colleagues were appalled. I tried to continue working but from 23 rd march onwards I have been so depressed and upset that my GP has certified me as unfit to work."

[10]The response from Legoland contained the following passages:

"I disagree because it is not normal procedure to give a LEGO model of the ride or attraction. The models awarded depict the individual as closely as possible. His model was a representation of himself."

At a later point in the response Legoland wrote:

"All models issued depict the individual e.g. a model made to look pregnant if employee pregnant, all individuals who wear glasses were given models with glasses. If employees of Asian descent, models may be made with brown bricks. Photographs available."

[11]Mr Jenkins' ET1 contained the same wording as paragraph 2 of his questionnaire. The response was:

"All long service awards are personalised, and the vast majority are personal likenesses, be the person pregnant at the time, bald, a wearer of glasses, etc. We felt that it would be discriminatory to not treat him the same & give a personal likeness."

[12]At the hearing it became apparent that in reality Mr Jenkins' complaint was not that the model was an image of him rather than of one of the rides he worked on but that the model did not contain anything identifying him with his work. This lack of clarity (perceived by the Tribunal as "moving the goalposts from the original claim") initially misled the Tribunal as to what it was that was in issue, but in the end the Tribunal dealt fully with both ways in which the disability discrimination complaint was put.

[13]Dealing with the first way in which it had thought the case was put the Tribunal held: 24 "We were satisfied that the trophies were meant to identify the person at that time, hence that of Sarah McKenna which showed her as heavily pregnant. Consequently, to show the applicant in a model that was personalised as a person with his arm in a sling was an accurate reflection of how he presented. We consider that it was an unfortunate slip that the wrong arm was shown but the fact remains the applicant does wear his left arm in a sling all the time. If, on presenting a personalised model the respondent had failed to include the applicant's personal characteristic, he would have every right to claim that he had been treated less favourably than others on the grounds of his disability as they had failed to take into account an obvious personal characteristic. It would not be a true personalised model in those circumstances. On that basis, the applicant's complaint under the Disability Discrimination Act must fail. He received a trophy as did others that was a personalised model with physical characteristics shown." Since it was Mr Jenkins' case before the Employment Appeal Tribunal that this was not in fact his complaint, there is no appeal from this part of the Employment Tribunal's decision.

[14]The Tribunal then went on to deal with the case as counsel for Mr Jenkins insisted to us it had always been his intention to put the case. The Tribunal said: 25 "If the claim however is that he was treated differently because it was not work related, and in the Tribunal's view that was moving the goalposts from the original claim, the Tribunal considered that it was necessary to look at what was the obvious work feature that could be included in such a model. There is no obvious work feature to attach to Human Resources Officers and they had none. In relation to the applicant, he was a Team Leader with a roving role. He put forward no suggestions, apart from one of the attractions, that might be attached to his model. A suggestion of a radio was put forward before the Tribunal today but that applied to all team leaders and would not necessarily relate to him personally. A contrast was drawn with Karen Glasse who was also a Team Leader. Her model contained a traffic cone. The assertion by the respondent, and not disputed by the applicant, was that she worked exclusively in the traffic area and this was an obvious link with her work area. There were no obvious links for the applicant. 26 The Tribunal therefore finds that if the lack of work related items was the difference, it related not to the applicant's disability but related to his workplace and work functions. It would therefore fall outside the scope of the Disability Discrimination Act and would not constitute less favourable treatment under that Act."

[15]The Employment Tribunal therefore dismissed the disability discrimination claim and then went on to deal with (and dismiss) the constructive unfair dismissal claim. The Appeal

[16]Originally Mr Jenkins sought to appeal both the disability discrimination decision and the constructive unfair dismissal decision on a great number of grounds (including bias and improper conduct by the Employment Tribunal). At a preliminary ex parte hearing of the appeal the Employment Appeal Tribunal dismissed all but one of the grounds of appeal. The issue for the present hearing was identified thus by Judge Ansell giving the decision of the Appeal Tribunal: 11 "Thus the issue was whether the failure to identify the Applicant's model in a work related environment thereby highlighting his disability was an act of discrimination. It is conceded by the Applicant that showing him with his arm in a sling per se is not an act of discrimination. The discrimination is that he is not shown in addition carrying a work related item such as a clipboard or within a work related environment. 12 In paragraph 25 the Tribunal considered whether or not a radio could have been depicted with him and they went on to find that there were no obvious links to the Applicant. However in paragraph 26 they then did not ask themselves the question as to whether the failure to depict him with a work related item, thereby highlighting his disability amounted to an act of discrimination. It is that issue that we believe should be argued at a full hearing in the light of the findings of the tribunal."

[17]Counsel for Mr Jenkins argued as follows:(a) Section 4 (2) (d) of the Disability Discrimination Act 1995 provides that it is unlawful for an employer to discriminate against a disabled person whom he employs by dismissing him or subjecting him to any other detriment.

(b) In determining the scope of what is covered by section 4 (2) it is relevant to take into account the provisions of the Code of Practice: Disability Discrimination (1996) paras. 6.1 and 6.7. The Code provides that the Act covers all areas of employment. Para. 6.7 of the Code provides that an employer must not discriminate in providing disabled people with opportunities for receiving benefits (which include "facilities" and "services") which are available to other employees. It was clearly intended that all fringe benefits of any kind should be covered. The long-service awards in the form of a personalised figure undoubtedly fall within that category.

(d) should be determined in accordance with the guidance given on identical words in the Northern Ireland Sex Discrimination Regulations by the House of Lords in Shamoon v Chief Constable of the RUC

[2003] ICR 337

, especially at paras. 31 —37 (per Lord Hope) and paras. 103 —105 (per Lord Scott). He also referred to MOD v Jeremiah

[1980] ICR 13

, especially at 30F—31B (per Brightman LJ). (d) In essence, the word "detriment" is to be given a wide meaning. A detriment exists if a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment. As was emphasised by Lord Scott that the test must be applied by considering the issue from the point of view of the victim. While an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute "detriment", a justified and reasonable sense of grievance may well do so. Nor is it necessary to demonstrate a physical or economic consequence.

(e) Mr Jenkins had a justified and reasonable sense of grievance because he was presented with a model which did not identify him with any work function at all, but simply and inaccurately identified him by his disability. He was naturally sensitive about being treated as a lesser person because of his disability, when the other employees who worked in Attractions with him and who received awards, were clearly identified by their work function. His treatment triggered a depressive episode. It could not seriously be suggested that it was unreasonable for him to take the view that his treatment was in all the circumstances to his detriment.

(f) By section 5 (1) of the 1995 Act 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. No suggestion of any justification was raised in this case.

(g) The test for determining the existence of a relationship between the disability and the treatment is to be adjudged objectively, not subjectively through the eyes of the employer — see H.J Heinz Co. Ltd. V Kenrick

[2000] ICR 491

para. 26.

(h) The Appellant was treated differently from others in Attractions who received the same award as he did in that his model totally lacked any work-related feature. This amounted to less favourable treatment. While his model was just of himself, theirs had an additional feature linked to their particular area of work in recognition of their valued service to Legoland. There was no reason why the model that was presented to him could not have contained an additional feature similarly linked to his particular area of work, for example a radio.

(i) The Employment Tribunal wrongly excluded the radio from consideration on the ground that it "applied to all team leaders and would not necessarily relate to him personally". That implies that no work-related feature could be depicted unless it applied to the individual concerned uniquely. It is clear from the list of models presented to see that an identical work feature is depicted for many of the individual employees concerned.

(j) But for Mr Jenkins' disability he would have received a model similar to those received by others who were not disabled, showing his work function or some other work-related feature. The reason for the difference in treatment in his case therefore was directly related to his disability. There was no other possible reason or explanation.

(k) There was no possible justification for treating him in that respect any differently from others, particularly those working in his section. The difference in the way he was treated insofar as the model presented to him lacked any work-related feature or work function clearly amounted to discrimination within the meaning of section 5 (1) and was caught by section 4 (2).

[18]On behalf of Legoland Counsel accepted the propositions of law propounded on behalf of Mr Jenkins. He submitted:(a) The Employment Tribunal had been correct in suggesting that the way in which Mr Jenkins' case was put on appeal was moving the goal posts. The issue of less favourable treatment was originally formulated in the list of issues agreed by both Counsel and presented to the Employment Tribunal at the start of the hearing in this way: "Did the Respondent, for a reason which related to his disability, treat the Applicant less favourably than it treated or would treat others to whom that reason did not or could not apply by presenting him with an award of a male model with one arm in a sling?"

(b) Accordingly, there was no obligation upon the Tribunal to consider the case in the way in which it was advanced at the hearing; it made no error of law in its construction of Mr Jenkins' case.

(c) In any event, the Tribunal did consider each of Mr Jenkins' alternative arguments and rejected them. Even if the Tribunal was wrong in its analysis of Mr Jenkins' original application, it went on to consider and reject the case as it was presented at the hearing.

(d) The Tribunal found as a fact, as it was entitled to do, that there were no obvious links with Mr Jenkins' workplace.

(e) The Tribunal went on to consider whether he had been treated less favourably on grounds of his disability and found that he had not. It found as a fact that the reason for his not being represented with a workplace feature was that there was no obvious one; it was not because he was disabled or because he had his arm in a sling. Thus, his disability was irrelevant to the fact that the model contained no additional workplace feature. Conclusions

[19]The way in which Mr Jenkins case was expressed in his application was unfortunate. It was not unfair of the Tribunal to describe the way in which the case was actually presented as "moving the goalposts". However, the issues raised by the case as actually presented were fully argued and no suggestion was made either to the Employment Tribunal or to the Appeal Tribunal that Legoland was disadvantaged by the apparent change in the case. In those circumstances the Employment Tribunal was entirely correct in considering both ways in which the case appeared to be put.

[20]There is no issue between the parties as to the law. It was, at least by the conclusion of the appeal, common ground that:(1) an employer may not discriminate against an employee who is disabled by dismissing him or subjecting him to any other detriment;

(2) a detriment exists if a reasonable employee would or might take the view that the treatment accorded to him had been in all the circumstances to his detriment;

(3) an employer discriminates against a disabled employee if he treats the disabled employee less favourably than he would treat an employee who is not disabled for a reason which relates to that person's disability; and

(4) treating a disabled employee in a different way to other employees in relation to a long-service award was, in the appropriate circumstances, capable of being a detriment. The disagreement came as to the question whether the Tribunal was entitled to hold that if there was a difference in treatment because of a lack of any work-related item in the model given to Mr Jenkins, that was not because of his disability but because of "his workplace and work functions". The suggestion of the radio was inapposite because "that applied to all team leaders and would not necessarily relate to him personally": see para 25.

[21]In our view the conclusion reached by the Tribunal on this point was unsustainable. It was not one to which any Tribunal could properly have come. The evidence before the Tribunal was that all but three of the 58 models showed the recipient in a workplace context. In few (if any) of those cases was the element relating to the workplace something which "necessarily related to the individual personally", to adapt the words used in paragraph 25 of the decision. For example, of the other three members of Attractions rewarded at the same time, one was shown with a clipboard, one with a traffic cone and one with a "Racers car". It is difficult to see how any of these (in particular the clipboard) could be said necessarily to relate to the individual personally. Similarly, each of the four Reservations personnel rewarded was shown in the model with a telephone, and each of the twelve Food and Beverage personnel was shown (six male and six female figures) with a pizza in one hand and a cup in the other. If these workplace connections were appropriate, it is impossible to see why Mr Jenkins should not have been shown with a team leader's radio. The only available explanation is that he was shown as he was because he was disabled and an identifiable model could be made by reference to his disability. A person who was not disabled occupying his position would not have been represented simply as a person in blue.

[22]The question then arises as to whether Mr Jenkins can be said to have been subjected to a detriment and discriminated against by this difference in treatment. This is a question to be answered by reference to the perception that a reasonable employee would or might take of the treatment accorded to him. In our judgment a reasonable employee in Mr Jenkins' position would or might well take the view that he had been subjected to detriment by the way in which he was singled out from his colleagues at a substantial presentation ceremony to be identified by a (wrongly characterised) disability.

[23]Accordingly, we take the view that the appeal must be allowed, a finding of disability discrimination substituted and the case remitted for the assessment of the compensation to which Mr Jenkins is entitled. Although this is undesirable, in the circumstances the case will have to be remitted to a differently constituted tribunal. This is because the chairman of the previous hearing has indicated that after the earlier hearing she was made aware by a friend of hers who, it turned out, knew Mr Jenkins of information about him which had not come out in evidence. In those circumstances she has indicated she would have to recuse herself from any further involvement in the case.