MR P J STOTT v THE GOVERNING BODY OF ST AELRED’S CATHOLIC TECHNOLOGY COLLEGE NHS FOUNDATION TRUST [2005] UKEAT 0322_05_0711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0322_05_0711Case No Appeal No. UKEAT/0322/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P J STOTTAPPELLANTTHE GOVERNING BODY OF ST AELRED’S CATHOLIC TECHNOLOGY COLLEGE NHS FOUNDATION TRUSTRESPONDENT
Before
Mr Justice BurtonDate 7 November 2005
[1]APPEARANCES For the Appellant MR GEORGE ROWELL (of Counsel) of Thirty Three Bedford Row Barristers Chambers 33 Bedford Row London WC1R 4JH. For the Respondent MR SIMON GORTON (of Counsel) Instructed by: St Helens Borough Council Legal Services Town Hall Victoria Square Corporation Street St Helens Merseyside WA10 1HP SUMMARY Disability Discrimination: Reasonable Adjustments ET found no breach of s6 DDA by virtue of a decision, after full meeting and discussion in November 2003, to give an extension of time to the A to acquire necessary qualification until May 2004. Appeal on basis that, although R not in breach of duty in November 2003, they were in breach of duty by not granting a further extension, which was never asked for, on the basis of an implicit request and an implicit refusal. Not only was ET not perverse in not so finding, but there was no evidence upon which the ET could have so found or that the R was put on notice of any facts (if indeed there were any) rendering such an extension appropriate. THE HONOURABLE MR JUSTICE BURTON This has been the appeal by Mr Stott, the Claimant, against the decision of the Employment Tribunal in Liverpool after a hearing on 8 March 2005, in a judgment handed down on 14 April 2005, dismissing his claim for unlawful disability discrimination against his employer, the Respondent, the Governing Body of St Aelred's Catholic Technology College.[2]The Claimant unfortunately suffered from a disability, and as such was admitted to be within the Disability Discrimination Act 1995 by the Respondent, of a shoulder which had a regular tendency to dislocate, and the Respondent, as we have indicated, accepted that that was a disability which fell within the Act and of which, consequently, they were obliged to take account when making employment decisions in relation to him.[3]He was employed as a teacher of design and technology at the college in the summer of 2003 – at that stage as an unqualified teacher - that is, he had not achieved what was called QTS, but on the basis that he would do so. There was a meeting in November of 2003, at which the Appellant was represented by his trade union official, and at which the decision was taken as to what should be done with regard to his not having the qualified teacher status. Paragraph 21 of the Employment Tribunal's judgment records as follows:"21. Although the meeting had been convened specifically to address Mr Stott's qualified teacher status, he raised his disability. The College reiterated that he had until May 2004 to achieve QTS. This was described as a 'good' offer by Mr Stott's Trade Union representative and it appeared to have been agreed that that was the appropriate course of action.22. At that meeting, the College set out the steps it was prepared to take in order to assist him to pass the relevant tests and achieve QTS".[4]There is a note of the meeting of 6 November which is not challenged but in any event has been found to be accurate, in which the following is set out as agreed after discussion. "1. Mr Stott/ATL to contact Edge Hill to arrange a diagnosis of support needed for Skills Tests and to establish whether St Aelred's might be an appropriate Proxy Centre for the Test. 2. Mrs Rimmer set arrangements in place for support for Literacy/Numeracy Tests once Mr Stott returns to work. 3. Tests to be pursued as soon a possible by Mr Stott. 4. Mrs. Rimmer sought for progress over the issue of Mr. Stott's acquisition of the Skills Test. She wished to support Mr. Stott as any other colleague in the position of needing to qualify. As Mr. Stott was not at work, no meetings to discuss when he would pursue the Tests and whether any support was needed, could occur. Mrs. Rimmer noted that another temporary member of teaching staff -who had not been contracted as a qualified teacher -was receiving a modicum of support to pursue his one outstanding Skills Test. 5. Mr Stott's Representative said the College's offer to Mr Stott having until the end of May to qualify was 'good' and if he hasn't got QTS by 31 st May then fair enough, Mr Stott would lose the post. 6. It was agreed that it would be important to pursue potential for an Amanuensis (an idea instigated by Mrs Rimmer) and it was noted this option had never been pursued at all."[5]The evidence which was given in the witness statement by Mrs Rimmer at the Employment Tribunal was that she never heard from Mr Stott in relation to any of the points that had been suggested by way of assistance, including the amanuensis, after the meeting on 16 November 2003.[6]In the event, the Appellant did not take the test which was organised under the auspices of the TTA (Teacher Training Agency), and which was planned to take place at Edge Hill, which is accredited by Lancaster University for the purpose of being the venue for such tests. There is a letter from the Academic Registrar at Edge Hill, copied both to the TTA and the Appellant's trade union representative, dated 14 November 2003 which reads as follows:
"Dear Mr Stott Literacy and Numeracy QTS Skills Tests Thank you for your letter of 7 November requesting support for your Literacy and Numeracy Skills Tests. I can now confirm that the following arrangements are in place for Edge Hill's QTS Skills Test Support during 2003-2004. Numeracy You can attend any or all of these sessions that are provided for current and continuing trainees. You will receive separate details and be able to request sessions by returning the enclosed pro forma to Mandy Groom, in the Faculty of Education"
. That pro forma is attached. We have no evidence as to whether it was, in fact, completed by or returned by the Appellant. "Literacy A member of the English Department will be able/available to spend 2 hours one Saturday morning, you will need to contact me with an appropriate date to enable me to arrange this. With regard to the additional support you have requested; we are not able to provide any support away from Edge Hill as these are sessions that are open to Edge Hill QTS trainees. The discussions we had with Mike Nichol [that is the trade union representative] were on the basis that you would attend any support session here at Edge Hill".[7]The findings of the Tribunal related to other allegations of discrimination which were rejected, and, in particular, a case which was rejected, and is not pursued before us, was that it was suggested that the college had "converted" an open-ended contract to one that would terminate on 31 May 2004 because of his disability. Findings made in respect of that alleged breach of s6 of the Disability Discrimination Act 1995 and the duty of the employer to make reasonable adjustments are set out in the following paragraphs and, because they are relevant to the issue that is before us, we shall recite them."36. We considered Mr Stott had never been under any misapprehension as to the basis upon which he was employed; he was told in May 2003 and the position was made explicitly clear at the meeting on 6 November. He was fully aware that if he failed to achieve QTS by 31 May 2004, his employment would terminate. That had nothing whatsoever to do with his disability.37. On the same topic, Mr Stott also asserted that there had been a failure to make 'reasonable adjustments' by refusing to allow him to remain working as an unqualified teacher. He was entitled to do so for a further 2½ years.38. Mr Stott did not appear to be suggesting that it was unreasonable for the College to require a qualified teacher for that post as they originally did. We also remind ourselves that, through his Trade Union representative, Mr Stott agreed at the meeting on 6 November 2003 that it was a 'good' offer that he should qualify by the end of May 2004 and that his employment would terminate if he did not.39. Leaving to one side the question of whether Mr Stott's continued absence was due to his disability (and it would appear quite likely that it was in any event related to an anxiety condition) we saw no reason why the College should have considered extending the deadline. They had taken steps to assist Mr Stott to achieve QTS but he had not done so. He had only worked for the College for a few days in the entire academic year and there was no reason why they should, in our view, have been expected to delay the termination of his employment." and then at paragraph 40 they set out the specific breach which is the subject matter of this appeal:"40. The College failed to consider what adjustments should be made in order that Mr Stott should take the relevant skills test and achieve QTS" and the Tribunal conclude at paragraph 41:"41. The College in fact went to great lengths at the meeting on 6 November to put in place such arrangements. We did not see what more [the Respondent] could reasonably have been expected to do".[8]The appeal, which has been most ably put forward by Mr George Rowell of Counsel on the Appellant's behalf, has been put forward on a slightly different basis from that which is recorded in the Tribunal's decision, as will appear. He has expressly accepted that the decision of 6 November was, as indeed was accepted before the Tribunal at the time by the trade union representative, a fair and reasonable decision. It was one which made allowances for his client's disability, and if matters had stayed as they were in November 2003, there would have been no arguable case, he accepts, for a breach of duty.[9]His case is that the Tribunal erred in failing to consider that there was, albeit no breach of s6 in November 2003, a breach of s6 by May 2004; and he submits that this is implicitly approached, although not adequately so, by the findings of the Tribunal in the earlier paragraphs which we have recited. His case is most succinctly set out in paragraph 15 of his Skeleton Argument, as follows: "15. The Claimant was dismissed for failing to fulfil a condition of his original offer of employment, namely that he must pass the skills test, thus achieving QTS, by the end of May 2004. In the Claimant's submission, this deadline was a discriminatory 'provision, criterion or practice' and the Respondent, by refusing to extend it, breached the duty under s.6 DDA to make 'reasonable adjustments'. The ET rejected this submission as a result either of making an error of law or of exercising its discretion perversely. Hence the ET's decision should not be allowed to stand".[10]Mr Rowell is in very considerable difficulty in getting this argument off the ground, so far as evidence is concerned. The only evidence there is or was before the Tribunal is that the Appellant did not return to work after November 2003. It appears that regular sick notes were sent in by him and there was certainly no issue before the Tribunal as to whether or not he should or could have returned to work. But that, of itself, of course is not enough. The issue has to relate to whether there was a breach of s6 in relation to a refusal by the Respondent to extend the deadline of 31 May 2004, to which we have referred. So far as that is concerned, there was before the Tribunal a medical report - not referred to expressly by the Employment Tribunal but, we suspect, implicitly referred to by their reference, made in paragraph 39 of the judgment which we have recited, to an anxiety condition - which, it is common ground, was supplied to the Respondent. It is dated 2 April 2004 and it is from Dr King who was a consultant occupational physician employed by the St Helen's Metropolitan Borough Council. The report says as follows:
"Thanks for the referral about Philip whom I met for the first time today. This gentleman suffered with recurrent dislocation of his shoulder for many years. As you know defining someone as disabled under the DDA can only be done by a tribunal. After speaking to Mr Stott my feeling is that although there is room for debate, it is more likely that he would be defined as disabled than not"
. Of course as we have indicated, when it came to the Tribunal, the Respondent made a concession that he was disabled by virtue of the shoulder condition. The report continues as follows: "As regards fitness for work, Mr Stott continues to have problems with his shoulder and is bound to continue in the future. However he should be able to cope with this on a day-to-day basis and although he's going to have occasional episodes off work when his shoulder dislocates, overall from this point of view he is fit to come back to work. However currently he is on antidepressant medication from his General Practitioner and gives a number of anxiety symptoms and I don't think he is in a fit state to return to work currently while these symptoms continue. On this basis he isn't fit for work but in truth the only answer to his various problems are to resolve his work issues".[11]The only other evidence that was before the Tribunal was a letter from the Teacher Training Agency responsible for the setting and assessing of the relevant skills tests, which was dated 13 August 2004 i.e. subsequent to all these events, and presumably written to him for the purpose of his using this in evidence in relation to this claim, which he duly did. The letter is written by the TTA in relation to its position after it had received the report of 2 April 2004 to which we have referred. It reads as follows:
"Dear Mr Stott QTS SKILLS TESTS Thank you for your email requesting information about your application for the provision of special arrangements when taking the QTS skills tests. You first contacted the QTS skills tests team in March 2002. As you raised the possibility that you had difficulty taking the tests due to a physical disability, you were referred to the details of the Teacher Training Agency's special arrangements provision located at our website and asked to make such an application if you felt this was necessary. In light of the fact that you experienced some difficulties due to the seating provision when taking one of the tests in October 2002 the TTA offered to provide a high backed chair for you at the appropriate testing centre. On 24 November 2003, after receiving notification for you that you were unable to travel to a test centre, the TTA agreed to deliver paper based on laptop tests to you in a venue of your choice, such as a local school. We offered this arrangement to you again in February 2004. In April of this year, subsequent to the receipt of a report from your Occupational Health Physician, [that is the report dated 2 April 2004] the TTA exceptionally agreed to deliver laptop tests to you in your home and asked you to contact us, to provide a convenient date and time when you could take the tests"
. As is apparent, that letter dated August 2004 purports to be a complete history of the relationship between the TTA and the Appellant and certainly, it was put forward before the Employment Tribunal without any further accompaniment.[12]In those circumstances, given that the Appellant, through Mr Rowell, accepts that there was no breach of the duty as at November 2003, he has to show that there was a case before the Tribunal, which the Tribunal perversely failed to accept or address, that there became, in some way, a breach of s6 subsequent to November 2003. He submits that the assumption underlying both parties' positions in November 2003 was that the Appellant would return to work, and at that stage arrangements would be set in place for literacy/numeracy tests for the Appellant once he did return to work to the school. Mr Rowell submits that given that, in fact, Mr Stott did not return to work, the basis of that assumption fell away and consequently that, in some manner, there became subsequently a duty on the Respondent to take some different step, and, in particular, to extend the deadline for May 2004 (although he accepts that no such request for an extension was ever made). The way he puts it is that there was an implicit request for an extension by the Appellant, implicitly refused by the Respondent. This, in our judgment, is wholly unarguable. It is, of course, right to say that the Respondent knew that the Appellant had not returned to work. It is also right to say that the Appellant had a copy of the report of 2 April 2004. But neither of those two factors of themselves rendered it impossible or even impracticable for the Appellant to take the tests in May 2004, and it is not said by Mr Rowell that there was any evidence before us, or which was before the Tribunal, that any of the following occurred. 1. Knowledge by the Respondent that his absence from work rendered it impossible for him to be in a position to take the tests. As far as they were concerned, the Respondent knew that he was going to arrange a diagnosis of support for the skills tests, and the fact that he was not able to take the benefit of Mrs Rimmer's arrangements when he did return to work would and should not have prevented him from taking advantage of any assistance which Edge Hill or the TTA were able to avail him of. 2. There is no suggestion that the report itself gave them information that he was in no position to take the test; it was not addressing the question of the test but simply as to whether he was fit to return to work and the report confirms that he was not fit for work, but that his disability was not likely to prevent him from doing so of itself. There is and was no evidence as to what the nature of the anxiety symptoms were, as to what their causative root was, as to whether they themselves would have amounted in some way to a disability or whether they did or did not relate to the disability. This is a matter which is left open, and properly left open, by the Tribunal in the light of the absence of such evidence. But the report itself in relation to the question put before us by Mr Rowell does not assist. 3. Even so far as the Appellant himself is concerned, there is no indication, never mind the question of his passing it on to the Respondent, that he knew or decided that he was unable to take the test by any particular date. The important letter of 13 August 2004 from the TTA (to which we have referred) shows that in April, after the receipt of the report, the TTA agreed with him to deliver laptop tests to his home. There is no evidence at all of his responding to that letter. Mr Rowell says, on instructions, that there were e-mails subsequent to that letter between his client and the TTA. However(i) those e-mails were not put before the Tribunal if, indeed, they exist at all, given the apparent indication to which we referred earlier that the letter of 13 August 2004 gives a complete picture of the communications between the TTA and the Appellant;(ii) there is no reason why, if they were not put before the Tribunal, they should now be relied upon by way of fresh evidence before us;(iii) there is no indication as to what those e-mails said;(iv) there is no indication that those e-mails were copied (if they existed) to the Respondent and Mr Simon Gorton (who has appeared, although he has not been called upon, for the Respondent) has confirmed that his instructions are that none were received. So that on the evidence before the Tribunal, as late as April 2004, in circumstances which did not involve the Respondent, the Appellant himself was still negotiating with the TTA as to the method of taking the tests, and although the Appellant had not had the opportunity of any assistance or support from Mrs Rimmer, he had had the opportunity of support from Edge Hill, and, as we earlier indicated, there is no indication by way of evidence at all as to whether he took advantage of the offers of support made by Edge Hill and if not, why not; or that, if he did not, the Respondent was in any way put on notice as to that fact, such as to make it the more significant that he was not able to take advantage of the support they would have provided had he returned to work.[13]In all those circumstances, the simple fact that the Appellant did not return to work does not begin to amount to a case that there was knowledge on the part of the Respondent that he was in no position to take the test, never mind an implicit request of any kind to them. Had any express request been made, then it still does not appear necessarily that they would have been in breach of s6 if they did not extend the deadline. Depending on when the request was made, it may be that they would have been able to comply with the obligations under s6 by volunteering yet more assistance, by way, for example, of home supply of support, than they had offered in November 2003; but there is no suggestion that they were ever asked to give such support or, indeed, that any information was supplied to them which could have caused a potential duty under s6 to trigger, in the sense of some relevant change of circumstance since November 2003 brought to their notice.[14]Above all, right the way through until May 2004 itself, there was never any suggestion by the Appellant to the Respondent that as he was, if he was, not able to take the test, they should grant an extension. Had there been such a request, then no doubt the Respondent would, in the way that they had responded in November 2003, at least have had a meeting to discuss the situation, and might or might not come up with something either amounting to an extension or something short of it. But there was no such communication at all.[15]In those circumstances, this is, in our judgment, a wholly unarguable challenge to the finding of the Tribunal. There was no evidence whatever upon which the Tribunal could have found a breach of s6 by May 2004 when they found that there was none in November 2003, no evidence of any matters brought to the attention of the Respondent which could lead them to believe that the Appellant was now unable to comply with the deadline, no matters which could amount to an implicit request and no matters which could amount to an implicit refusal. In those circumstances, this appeal is dismissed.