MRS D BANCROFT v MITIE PROPERTY SERVICES (SOUTHERN) LTD [2004] UKEAT 0494_04_1211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0494_04_1211Case No Appeal No. UKEAT/0494/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS D BANCROFTAPPELLANTMITIE PROPERTY SERVICES (SOUTHERN) LTDRESPONDENT
Before
His Honour Judge D SerotaDate 12 November 2004
[1]APPEARANCES For the Appellant MR P A BANCROFT Representative For the Respondent MR R J CATER Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB SUMMARY ET failed to consider whether Respondent in refusing to pay salary in full during disability related illness failed to make reasonable adjournment under S6 DDA. HIS HONOUR JUDGE SEROTA QC This is an appeal by Mrs Dessie Bancroft from a decision of the Employment Tribunal at Brighton chaired by Mr M D Ross that was sent to the parties on 5 May 2004. The Employment Tribunal dismissed the Applicant's claim for discrimination on the grounds of disability under the Disability Discrimination Act 1995, a claim for unfair dismissal and a claim for unlawful deductions.[2]The matter was referred for a Full Hearing by his Honour Judge J Reid QC on 24 June. His Honour J Reid QC considered that one of the points that had been raised during the course of the hearing and in the IT3 namely that the failure to exercise discretion at a time when Mrs Bancroft was sick, in paying her her full salary by way of sick pay might amount to discrimination because the employer had failed to exercise or to make a reasonable adjustment under Section 6 of the Act.[3]The factual background to this matter is as follows. Mrs Bancroft is accepted to be suffering from a disability. She has had the great misfortune to suffer from ulcerative colitis since 1995, or at least that is when it was diagnosed. There has never been an issue but that she is a person with a disability within the meaning of the Disability Discrimination Act 1995. At the relevant time she was employed as an administrator in Brighton. The Respondent is now one of four divisions of a larger company. The Employment Tribunal seems to have suggested that the Mitie Group took over the business but we are told by Mr Bancroft and we have no reason to doubt, and it is probably not material, that at the time he joined the Company, he was always no more than an employee of the Company and that the Company was always owned by the Mitie Group. The Employment Tribunal was in error in describing it a small office in which, in effect, he was in partnership with Mr Hassall.[4]Be that as it may, by the year 2001 the Company had a substantial operation throughout the South East of England with its head office in Titchfield and offices at Bournemouth, Yateley and Brighton where Mr and Mrs Bancroft both worked. It is to be noted that Mrs Bancroft, although she had started, I believe, as a receptionist/secretary was an administrator, but her husband Mr Bancroft was her line manager and a more senior administrator in the Company. He told us that he had a background as a Quantity Surveyor. Mr Bancroft represented Mrs Bancroft before us.[5]Mrs Bancroft began work with the Company in 1995. Originally we believe she worked in Haywards Heath. The Employment Tribunal was satisfied, having resolved the conflict of evidence against her, that from time to time she did drive herself to work. She had started off only working part-time but certainly by the time her employment ended, she was working a full five-day week. She maintained that she was only working 4½ days but the employer maintained she was working in effect a five-day week. Up until 2000 or perhaps 2001, by which time she was working in Brighton, she was working in one place only. She had no work travel to undertake and further there was no difficulty in her performing her job.[6]We have referred very briefly to her illness. It is right to say that prior to the events that gave rise to the termination of her employment, she had on a number of occasions taken time off work. Indeed it is suggested and the Employment Tribunal have not dealt with this matter, that she took rather more time off than was reported by Mr Bancroft to the Respondent. Be that as it may, she had not taken time off all in one tranche. But she had taken off by reason of her illness, rather more days than would in aggregate amount to one month and that she had been paid in full for her time off work. We should come on to the terms of her contract of employment shortly.[7]One of the significant disabilities which is connected with the form of colitis that Mrs Bancroft suffers from, is that there are problems with continence. It follows, therefore, that she needs to avoid long journeys and needs at all times, as far as possible, to be near toilet facilities. Mrs Bancroft has maintained that the Respondent was well aware of her colitis from way back in the 1990s. This was an issue that was controversial and it was resolved by the Employment Tribunal in favour of the Respondent. The Employment Tribunal accepted as a fact, we shall come to shortly, that the first occasion that the Respondent knew of her disability was in November 2002.[8]In September 1999 Mrs Bancroft was provided with a statement of terms and particulars of employment signed by the Respondent. She was reluctant to sign because she did not agree some of the terms, in particular the hours worked, but she accepted at the Employment Tribunal that the sick pay terms applied to her. She was entitled to one month in aggregate each year on full pay having regard to her years of service with the Respondent, to be followed by one month on half pay and then statutory sick pay.[9]Sometime in early 2000 a Mr David Kimber was appointed the financial controller of the Respondent with overall responsibility for administration. We note, and this is referred to in the decision of the Employment Tribunal because it perhaps is material to the question of Mrs Bancroft's ability to travel, that in an appraisal that she had signed on 19 September 2000 she had complained about the Company not inviting her to various functions, some of a semi social nature, others of a work nature that would have required her to travel.[10]In July 2001 she attended computer training in Brighton. On 24 October 2001 Mr Kimber considered that it was desirable that there should be meetings of the administrators from each branch and that the meeting should rotate through the branches, for example once in Brighton, once in Bournemouth, once in Titchfield and once in Yateley. Mrs Bancroft took the view that it was not practicable for her, and she was not going to attend those meetings. The reasons that she gave however, the Employment Tribunal accepted were reasons relating to her work. She did not give reasons that related to her medical condition. She also complained that Mr Kimber's e-mails to encourage her to attend the meetings, were bullying. A meeting took place between Mr Bancroft and Mr Enfield the director of the Company on 21 November 2001. Again there was a conflict of evidence as to what took place at this meeting but the Employment Tribunal at paragraph 8 of its Extended Reasons resolved it in favour of the Respondent. It was found that it was agreed that the meetings would take place in Titchfield, and again no reference was made to Mrs Bancroft's health as being a reason why she might not attend.[11]Some time in January 2002 Mr Enfield took the view that there was no purpose in trying to persuade Mrs Bancroft to attend these meetings. One of the reasons was that the Brighton office where she and Mr Bancroft worked, only contributed some five per cent or thereabouts of the Company's turnover. She was told she need not attend the first meeting at which the Brighton office was not in fact represented. On 8 November Mr Bancroft was having a meeting with Mr Hassall and Mr Enfield to discuss various problems not related to Mrs Bancroft. However, Mrs Bancroft's attendance at quarterly meetings came up. Mr Hassall said he was told for the first time that Mrs Bancroft was unable to travel alone and that she had health problems. He said this was the first time he or anyone at the Company, apart that is from Mr Bancroft, was made aware this was the reason why Mrs Bancroft was not prepared to attend meetings away from her office.[12]There was a dispute as to what took place at this meeting. Again the dispute was resolved by the Employment Tribunal in favour of the Respondent. Mr Hassall's and Mr Enfield's evidence was that Mr Hassall suggested as an option that Mr Bancroft could bring Mrs Bancroft to the meetings. Mr Hassall said he agreed with Mr Bancroft that he would bring Mrs Bancroft and then take her back and he felt that this had resolved matters. He said that he had in mind particularly having had past discussions with Mr Bancroft about driving holidays that Mr and Mrs Bancroft had undertaken together. He told the Tribunal, which accepted, his evidence that he was under the impression that Mrs Bancroft had been able to undertake car journeys with her husband and that is what would happen in the future. He believed that matters had been resolved.[13]On 14 November Mr Bancroft went on sick leave and so far as we know, he never returned to work with the Respondent. On 19 November Mrs Bancroft wrote a letter to Mr Hassall in which she complained about having been required to attend meetings out of the office and she explained that this was because of her health. She informed him that she had sought legal advice from her solicitor and had been advised that the instruction was unreasonable and could be construed as constructive dismissal. In the letter she made clear that her condition was aggravated by stress and every time the issue was raised she found it distressing and her health was affected. She said that although she was trying to carry on with her duties, she was finding it very difficult under these circumstances, and she proposed that she should leave the Company in return for a redundancy payment.[14]She said 'I do not wish to discuss this matter face to face' (that is a reference as to why she was being required to attend meetings,) and asked that her proposal be dealt with as a matter of urgency. Mr Hassall whose, evidence was again accepted by the Employment Tribunal was about to go on leave but he said he was shocked by this letter because he considered he had reached an agreement with Mr Bancroft that would enable Mrs Bancroft to attend the meetings. He felt a solution could be found and urged Mrs Bancroft not to feel obliged to return to work if this was going to cause her difficulties. The next administrators' meeting did in fact take place on 20 November but we assume although we are not told, that Mrs Bancroft did not attend unless the meeting happened to have been in Brighton.[15]On 25 November Mrs Bancroft took sick leave. On 30 November Mr Bancroft resigned and took up another post. On 19 December Mr Hassall wrote to Mrs Bancroft that he was willing to continue to pay her the full amount of her contractual pay to the end of December. This would be two weeks beyond her contractual entitlement but thereafter she would receive statutory sick pay. This in fact would not have been in accordance with her contractual rights. We are told in the event that she was paid the full amount of her salary up until 20 January and thereafter statutory sick pay.[16]There seems to have been some suggestion that she might be able to return to work on 20 January and a letter was written by the Human Resources Department to that effect on 10 January. She did not and on 12 February she wrote a letter to the Respondent in which she said that she had passed the letter of 2 December on to her solicitor saying:
"Dear Mr Hassall, I am writing with regard to my employment with your Company. Due to your treatment of me my trust and confidence in you as my employer has been breached. As a consequence of your actions, you have also breached my contract, and my employment is therefore terminated with immediate effect."
The letter does not specify the grounds upon which she maintains the trust and confidence has been destroyed nor does it set out what breaches of contract she complains of.[17]The Employment Tribunal concluded that there had been no breach of contract and that she had received her contractual sick pay. In paragraph 15 having considered the statute and in particular Section 5(1) of the Act the Employment Tribunal concluded that Mrs Bancroft needed to show treatment that was capable of amounting to less favourable treatment and referred to the well-known decision of Clarke v Novacold . Mrs Bancroft claimed that being called to quarterly meetings was a detriment. The Employment Tribunal did not accept that to be the case. What the Employment Tribunal had to say in paragraph 15 was as follows:
"The evidence that we received was that the Applicant was asked to come to the quarterly administrative meetings because her fellow supervisor/administrators at other offices also attended. The whole purpose of the meetings was to achieve some uniformity amongst the officers of the Respondent and in these circumstances we do not consider that the Applicant's treatment in this respect was less favourable for a reason relating to her disability. We are satisfied that the request that the Applicant attended these meetings could amount to an "other detriment" under Section 4(2)(d) but in the circumstances of this case we do not consider that the Applicant was treated less favourably for a reason which relates to her disability. Even if we were wrong in that conclusion and went on to consider the second issue in Clarke v Novacold namely did the employer treat the Applicant less favourably than he treated or would treat others to whom that reason does not apply we would be bound to find against the Applicant."
[18]At paragraph 16 they went on to consider the claim that she had been dismissed. They correctly directed themselves in accordance with Western Excavating (ECC) Ltd v Sharp which made it clear that the employer must be guilty of conduct which amounted to a fundamental breach, something going to the root of the contract if an employee is to succeed in a claim for constructive dismissal. They were quite satisfied on the facts that no action taken by the Respondent came anywhere close to amounting to conduct of that description and they therefore dismissed her claim for constructive unfair dismissal.[19]They then went on, although it had not been pleaded, to consider the question of reasonable adjustments, and they came to the conclusion having directed themselves in relation to Sections 5(2) and Section 6 of the Act that an employer was not under a duty to make reasonable adjustments if he did not know or could not reasonably be expected to know that the employee had a disability or was likely to be affected by any arrangement made by or on behalf of the employer. In the context of the case the only possible reasonable adjustment, say the Employment Tribunal, that could arise related to the requirement that the Applicant attend the quarterly administrative meetings. It is clear that as from the meeting on 8 November the duty arose.[20]However, the Employment Tribunal in the light of its findings were satisfied the duty only arose on that date and again on the basis of their findings they were satisfied that the reasonable adjustment that might have been made namely that she could be brought to the meetings by her husband or another person, if she needed to be accompanied, was offered. It was not submitted on the part of the Applicant that any other adjustments needed to have been made. Once the Respondent was aware that the Applicant was not prepared to attend the meetings even if accompanied, they did not have the opportunity to consider other adjustments, if the Applicant was not at work and was apparently being represented by solicitors and was anxious to leave, as has been seen from the letter of 19 November, in return for a redundancy payment. The Employment Tribunal, therefore, concluded although they were satisfied the duty to make adjustments had arisen, they were satisfied the Respondent made reasonable adjustments and there was no failure on their part to discharge the duty under Section 6.[21]We now turn to the grounds of appeal. The first and fifth grounds of appeal really relate to the suggestion that the failure on the part of the employer to pay full salary while Mrs Bancroft was off sick as the result of her disability amounted to less favourable treatment. This is the point that was picked up on by His Honour Judge Reid QC because it might be argued in particular that the failure to make an adjustment in its sick pay policy could mean that the Respondent had failed to comply with its duty in relation to making adjustments under Section 6(3). This point was clearly raised in the IT3. We find at page 19 paragraph 15 of the attachment to the IT3. Paragraph 15(iv) reads as follows:
"(iv) The applicant was deprived of monies she was entitled to. The Applicant is entitled to full pay for the time she was off sick from 4 th December 2002 to her dismissal but was only paid full pay until 31 st December 2002 and statutory sick pay thereafter."
That appears to be controversial. In any event the Employment Tribunal was satisfied there had been no breach of contract. Mrs Bancroft then went on to say that if she is wrong in saying that she was entitled to such pay and her contract had been varied, then it is discretionary and the Company chose not to exercise their discretion in the Applicant's favour to pay full salary for sick leave in excess of the contract because of her disability. The point is also flagged up by the Employment Tribunal in paragraph 1: 1. ...The Applicant also claims that for a reason related to her disability she was treated less favourably again by virtue of the course of conduct in November 2002 and the failure to pay her full contractual pay beyond the 31 December 2002. "[22]It is quite clear, and indeed it is conceded very helpfully and realistically by Mr Cater, that questions relating to discretionary sick pay, a failure to exercise a discretion, can amount to a detriment and Mr Bancroft has helpfully drawn our attention to the decision of the Employment Appeal Tribunal in the case of Ms G Meikle v Nottinghamshire County Council , a recent decision of the Employment Tribunal presided over by His Honour Judge Ansell in particular to paragraphs 70, 77, 78 and 82. His Honour Judge Ansell had said:
"77 We are therefore satisfied that the Tribunal were in error in holding that the section 6 duty did not apply to contractual sick pay arrangements. We are satisfied that the Respondents failed to make reasonable adjustments and that they did not show that that failure was justified for a reason which was both material and substantial."
He also was of the view that in that case, the Tribunal did err in law and it failed to apply Section 5(5) in relation to the question of whether a failure to pay enhanced sick pay was justified if the decision was taken on the basis of disability.[23]In those circumstances it seems to us that this matter, that is Ground 1 and Ground 5 which relates to it need to be referred back to the Employment Tribunal and we direct that the question as to firstly whether or not the failure to exercise discretion in paying full salary beyond the contractual period was by reason of Mrs Bancroft's disability, and if it was, whether that decision was justified. The fifth ground of appeal raises issues which do not appear to have been clearly determined by the Employment Tribunal as to the payment of discretionary full salary to other persons and the Employment Tribunal will obviously need to consider the circumstances in which payment was made to other employees in full in so far as it might have a bearing on Mrs Bancroft's claim that the failure to pay it to her was discriminatory. To that extent the appeal succeeds.[24]We need however to deal with two other grounds of appeal. Firstly, Mr Bancroft seeks to argue that the Tribunal's finding that a reasonable adjustment was made in relation to the meetings was wrong. These are effectively Grounds 2 and 3 but it is argued that it would not be a reasonable adjustment to require Mrs Bancroft to attend meetings on the basis she would be driven there by her husband or someone else. She seeks to suggest that on the facts it should not have been regarded as a reasonable adjustment, as there was no discussion with her personally. The answer to that as it seems to us is this matter was clearly considered by the Employment Tribunal. We are here to consider points of law and it seems to us that the Employment Tribunal was perfectly entitled to consider that it was a reasonable adjustment, as the question had been agreed between her line manager and husband and Mr Hassall in circumstances where it is apparent that Mrs Bancroft was content for her husband on a number of occasions to speak on her behalf.[25]A point is also made that the Employment Tribunal failed to consider that when the Respondent learned of Mrs Bancroft's disability on 8 November, it discriminated against her by failing to carry out any assessment. The short answer to this submission is that it was never raised before the Employment Tribunal as Mr Bancroft conceded. In those circumstances we see no reason why we should entertain it now, albeit such an argument might in any event be impossible following the decision of Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] ILR 506, EAT. However, there are certain factors that need to be considered. Firstly, Mrs Bancroft made it clear she did not wish to discuss the matter at all. We have referred to the letter in which she said it. Secondly, it may be that had she come back to work it would have been possible for there to have been some further assessment. We do not say anything more about it because the Tribunal clearly considered the Respondent did the best it could in the circumstances in discussing the matter with her line manager and husband and actually agreed with him as to what was an appropriate way forward bearing in mind that Mr Bancroft appears to have accepted and this was found by the Employment Tribunal that he would go on driving holidays with Mrs Bancroft. Be that as it may the point was not raised below and in those circumstances it is not right that the matter should be raised at this stage.[26]The result therefore is that on the basis of the points raised in Grounds 1 and 5 of the Notice of Appeal the matter must be remitted to the Employment Tribunal. We say nothing as to the likelihood of success. It may well be that the task of the Applicant on the facts is a stiff one. The decision not to pay her full salary in excess of her contractual right may have been taken for any number of non discriminatory reasons. However, the matter must be considered. We direct that there should be a transcript of this decision to assist the Employment Tribunal and the Employment Tribunal will then need to go on if it is satisfied that there has been some discriminatory conduct to consider whether that would justify the claim by Mrs Bancroft that she was constructively dismissed.