LANARKSHIRE PRIMARY CARE NHS TRUST v MRS PATRICIA NAICKER [2005] UKEAT 0003_05_1805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0003_05_1805Case No Appeal No. UKEAT/0003/05Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
LANARKSHIRE PRIMARY CARE NHS TRUSTAPPELLANTMRS PATRICIA NAICKERRESPONDENT
Before
Lady Smith Miss S B Ayre Mr M G SmithDate 18 May 2005
[1]APPEARANCES For the Appellant Mr C MacNeill, Advocate Instructed by- Scottish Health Service Central Legal Office Anderson House Bonnington Road EDINBURGH EH6 5JR For the Respondent Ms C McManus, Solicitor Of- Messrs Harper Macleod Solicitors The Ca'd'oro 45 Gordon Street GLASGOW G1 3PE SUMMARY DISABILITY DISCRIMINATION Disability Reasonable adjustments The claimant, a health visitor, claimed that she had been subjected to discrimination on account of disability and the Employment Tribunal found that they had failed in their statutory duties in respect that they should have made reasonable adjustments by offering her a post closer to her home, which would have reduced her travelling time to and from work. The Employment Appeal Tribunal found that the Employment Tribunal had failed to address the question of whether or not the claimant was suffering from a relevant disability, had failed to identify when the respondents' knowledge or deemed knowledge of a relevant disability arose and had, in any event, in purporting to do so, relied on assumptions that they were not entitled to make. Further, with regard to the question of reasonable adjustments, they had failed to take account of relevant evidence. The case was remitted to a freshly constituted tribunal for a rehearing. THE HONOURABLE LADY SMITH: This case is about disability discrimination.[2]The judgment represents the views of all three members who pre–read the relevant papers.[3]We will refer to the parties as claimant and respondents.[4]This is an appeal by the respondents against a decision of the Employment Tribunal sitting at Glasgow, Chairman Mr M W MacMillan, registered with reasons on 5 November 2004. The claimant was represented there and before us by Ms Claire McManus, solicitor and the respondents were represented there by Mr M MacLeod, solicitor and before us by Mr McNeill, advocate .[5]The claimant claimed that she had been subjected to discrimination in terms of section 5 of the Disability Discrimination Act 1995 ('the 1995 Act'). The respondents contended that she had not and denied liability. The Issues:[6]The essential issues as determined by the Employment Tribunal were whether the claimant was disabled, at what point, if she was, the respondents knew or ought to have known of her disability and whether or not she received discriminatory treatment within the meaning of the 1995 Act, related to her disability.[7]The Employment Tribunal determined that the application was justified and that the respondents had failed in their duties under the 1995 Act, as a result of which the claimant was dismissed. In particular, they should, it was said, have considered appointing her to a post at Biggar by moving the employee who had been appointed there on a temporary basis into the claimant's job at Coatbridge.[8]The respondents appeal against that decision. Relevant Law:[9]The relevant provisions of the 1995 Act are:
"(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term effect adverse effect on his ability to carry out his normal day-to-day activities." "
S.5 Meaning of discrimination (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, and 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 91) treatment is justified if but only if, the reason for it is both material to the circumstances of the particular case and substantial. (4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified, if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial. S.6 Duty of employer to make adjustments (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." "Schedule 1 2.-(1) The effect of an impairment is a long-term effect if– (a) it has lasted at least 12 months; (b) the period for which it is lasts is likely to be at least 12 months; or (c) it is likely to last for the rest of the life of the person affected." It should also be noted that in terms of s.6(6), no duties are imposed on an employer in relation to a disabled person if the employer does not know and could not reasonably have been expected to know that, in the case of an existing employee, the employee in question has a disability and is likely to be affected by it in such a way as to be placed at a substantial disadvantage in comparison with persons who are not disabled . The Facts:[10]The respondents are the Primary Health Care Trust for Lanarkshire and as part of their duties, they provide assistance, including staff for health care providers, within that area. The claimant was employed as a health visitor by the respondents between 1994 and 2000. At the time of her application, she was employed at the Coatbridge Health Centre, 26 miles away from her home.[11]In or about 1997, the claimant began to suffer back pain whilst driving. She also found the driving tiring and, at one point, suffered from a swollen ankle. By early summer 1999, she had applied for but had not been successful in obtaining a number of positions with the respondents, at health centres closer to home. One of these was a temporary position as health visitor at Biggar to which one of the respondents' pool of community nurses was appointed but on a temporary basis with that employee still being regarded as part of the pool. Her back condition worsened. The claimant went on sick leave on 29 th July 1999 and did not return to work. Correspondence ensued which contained discussion regarding the possibility of ill health retirement, the claimant apparently accepting that ill health retirement was the only option available to her since she had not been able to secure work nearer home. The Pensions Agency, after some delay, agreed to ill-health retirement as from 1 September 2000.[12]The respondents accepted that, as from July 1999, the claimant was disabled for the purposes of the 1995 Act but did not accept that they either knew or ought to have known that prior to March 2000. The Employment Tribunal found that by July 1999, the claimant's condition had worsened sufficiently to amount to a disability in terms of the 1995 Act but as regards the question of when the respondents knew or ought to have known that that was so, found that:
"the respondents knew or ought to have known that the claimant was disabled for the purposes of the Disability Discrimination Act by, at the latest, December of 1999."
The Respondents' Case:[13]Counsel for the respondents confined his argument to parts b and c of the respondents' grounds of appeal. He, accordingly, submitted firstly that the Employment Tribunal's conclusion to the effect that the respondents should have known that the claimant was disabled by December 1999 was one which no reasonable tribunal could have reached and they had, accordingly, erred in law.[14]They required, it was submitted, to identify the date at which the respondents knew or ought to have had the requisite knowledge. To do that, they required to consider the definition of 'disability' contained in s.1 of the 1995 Act bearing in mind that that involved the concept of a physical or mental impairment which was having a substantial effect on the claimant's ability to carry out her normal day to day activities with an adverse effect that had already continued for a period in excess of twelve months or was likely to continue for at least twelve months or the remainder of the claimant's life. They then had to identify the date at which the respondents knew or ought to have known these matters. The Employment Tribunal had failed to do so.[15]Further, it was submitted that the Employment Tribunal had assumed a higher degree of knowledge on the part of the respondents because of the nature of their occupation than was justified. Reference was made to a passage contained in paragraph 35 of the Employment Tribunal's reasons. In all the circumstances, their ensuing finding that the respondents knew or ought to have known of the claimant's disability by December 1999 at the latest was vitiated.[16]The second ground of appeal related to the Employment Tribunal having found that as at December 1999 and beyond, the respondents failed to make reasonable adjustments to account for the claimant's disability in respect that there was a potential adjustment they could have made by appointing her to the temporary post of health visitor at Biggar. It was submitted that that was not, however, a conclusion that was open to them since there was highly relevant evidence in the terms of Dr Elder's letter dated 22 nd December 1999 (A41/64) which stated: " I do not think that she is fit to resume as a Health Visitor." of which they failed to take account. It was submitted that had they taken account of that evidence, they would have concluded that the claimant was unable to work as a health visitor and so the respondents were justified in failing to appoint or consider appointing her to the position of health visitor at Biggar.[17]Separately, it was submitted on behalf of the respondents that the Employment Tribunal's finding that the respondents should have made reasonable adjustments was illogical since it appeared to relate to adjustments which should have been made at the time that the claimant was applying for alternative positions, prior to early summer 1999. That did not make sense because they had not found that the respondents had a duty to consider or make any such adjustments as early as that. The claimant had decided at that time that she was going to seek retirement.[18]Some criticism was also levelled at the approach adopted in paragraph 44. It was submitted that it was obvious that the period over which the respondents had failed in their duties, if it was correct to say that they had done so, terminated with the claimant's dismissal since they could not have continued to owe any duty to her beyond the date when she ceased to be an employee.[19]In these circumstances, the case ought, it was submitted, to be remitted to a freshly constituted tribunal for a re-hearing. The Claimant's Case:[20]On behalf of the claimant, it was submitted that the Employment Tribunal had appropriately asked the correct question as to when the respondents knew or ought to have known of the claimant's disability and had answered it properly. The submission was, initially, that the answer was that they had found that the respondents knew or ought to have known of the claimant's disability by December 1999 at the latest but as the argument developed, Ms McManus seemed to submit that since the Employment Tribunal had focussed on December 1999, they had specified that as being the date.[21]It was accepted on behalf of the claimant that Dr Elder's letter did contain the sentence regarding the claimant's fitness to work as a health visitor upon which the respondents founded but it had, it was said, to be read in context. It meant that she was not fit to work as a health visitor in the job at Coatbridge.[22]Regarding the submission that the Employment Tribunal could not properly find that the respondents were obliged to make or consider reasonable adjustments because the finding related to a time prior to the point at which the duty arose, Ms McManus drew our attention to paragraph 39 of the Employment Tribunal's reasons where they made it clear that they considered that the circumstances at Biggar continued into the period of time when the respondents knew or ought to have known that the claimant was disabled and that there was evidence that the claimant had not simply decided that she would opt for retirement but had felt that that was all that she could do so long as no positions were available to her nearer home.[23]As regards the criticisms of paragraph 44, it was submitted on behalf of the claimant that the approach was not illogical. If the respondents had fulfilled their duties then the claimant would not have been dismissed so the relevant period might not match the period between December 1999 and her ultimate dismissal. Relevant Legal Principles:[24]These are to be found in the legislation to which reference has already been made. It is sufficient for the purposes of the present case to note that the question of the date from which the respondents knew or ought to have known that the claimant was disabled within the meaning of s.1 of the 1995 Act is fundamental to any finding of breach of the duties imposed on an employer in terms of sections 4 and 5. In short, the duty cannot arise unless the employer knows or ought to have known of the various factors set out in section 1, as explained further in Schedule 1. And then, the question of whether or not the employer failed in the duty clearly cannot be determined unless a point in time is fixed from which the knowledge or deemed knowledge arose, such determination being a question of fact in every case. Conclusions:[25]We have reached the view that the Employment Tribunal's finding that the respondents knew or ought to have known that the claimant was disabled by at the latest, December 1999, was flawed and was a conclusion that no reasonable tribunal could, in the circumstances, have reached. They arrived at that conclusion without making what, we agree, was an essential finding namely that of whether or not the claimant was suffering from physical impairment which had a substantial and long term adverse effect on her ability to carry out her normal day-to-day activities.[26]Of perhaps further and greater significance is that they made a finding, at paragraph 36 that:
"The disabling condition had existed from July and in all the circumstances it was reasonable to expect the respondents to recognise that the condition would be one which was likely to last at least 12 months."
[27]That was a critical finding without which it would not have been possible to find that any relevant duty arose. The basis on which they made it, which is to be found in the earlier part of paragraph 36 and in paragraph 35 is, however, open to serious criticism. At paragraph 35, they state:
"The difficulty for the tribunal is ascertaining whether the respondents either knew or ought to have known not merely that the condition existed but that it amounted to a disability under the Act. We considered it important to bear in mind that the respondents are not entirely ignorant of health matters, and many of the witnesses in this case both for and against the claimant are health professionals. It is therefore reasonable to assume a higher degree of knowledge than might be the case with other witnesses."
[28]This was against a background of one of the most significant witnesses for the respondents having been Mr Small, who, far from being medically qualified, was the Director of Human Resources. The assumptions made by the Employment Tribunal in accordance with the above comments were clearly carried through to their conclusion that it was reasonable to expect the respondents to recognise that the claimant's condition was one which would be likely to last at least 12 months. They were not, however, assumptions that any reasonable tribunal properly directing itself on the evidence could have made. It cannot properly be inferred from the fact that the respondents are a health trust, that they know or ought to know that a particular employee's physical impairment is likely to last for any particular length of time, nor can that inference be drawn simply from the fact that some of the witnesses have a medical qualification. It is neither logical nor appropriate from these bare facts, to attribute to a health trust, as the Employment Tribunal state that they did "a higher degree of knowledge" . These were, in short, wholly unwarranted assumptions and they vitiate the consequential finding that the respondents should have known that the claimant's condition was likely to last for at least 12 months.[29]Further difficulties arise. Firstly there is the fact that the Employment Tribunal's finding is that the respondents should have known by "at the latest December 1999" . That would, unfortunately, seem to leave open the question of what exactly was the earliest date from which they had the actual or deemed knowledge. That is a question that has to be determined.[30]Secondly and separately is the fact that the Employment Tribunal do indeed appear to have ignored the evidence from Dr Elder's letter to the effect that the claimant was not fit to resume work as a health visitor. We cannot accept that it is to be inferred from such findings as are made by the Employment Tribunal, as Ms McManus sought to persuade us to do, that he meant that she could not resume working on the basis that she was travelling to and from Coatbridge. The inclusion in Dr Elder's letter of the sentence founded on by the respondents was not disputed on behalf of the claimant and its presence there does, we agree call into question the conclusion drawn by the Employment Tribunal that the respondents should have been considering making adjustments to enable the claimant to carry on working as a health visitor. It was, on the face of it, an unqualified statement regarding the claimant's ability to work as a health visitor at all.[31]There then arises the matter of the comments contained in paragraph 44. The Employment Tribunal appear to have refrained from determining what was the extent of the respondents' failure in duty. It seems to us that there is scope for the end point of that duty to be a date before, on or after the date of the claimant's actual dismissal. Whilst we accept the utility of leaving over the determination of remedy for a further hearing, if required, and do not consider that they were in error in refraining from doing so, it would have been more helpful if the Employment Tribunal had reached a view at this stage as to the period over which the respondents could be said to have been in breach of duty. As we have already observed, the question of when the obligation to make reasonable adjustments arose is a critical one. Equally important is that of how far the obligation goes in any particular case. Hence the need for such a finding.[32]In all of the above circumstances, we were satisfied that the respondents' motion that the case should be remitted to a differently constituted Employment Tribunal for a re-hearing was well founded. We considered whether, as was submitted on behalf of the claimant, it would suffice if the case were sent back to the same tribunal to answer the question of whether the respondents knew or ought to have known that the claimant was suffering from a relevant disability and if so as from what date but that is not, as we have indicated, the only question that arises. Further, the nature of the errors are, we consider, of such materiality in this case as to make it inappropriate that the same tribunal reconsider the case[33]We shall, accordingly, allow the appeal, quash the decision of the Employment Tribunal and remit the case to a differently constituted Employment Tribunal for a re- hearing.