LEWISHAM SOCIAL SERVICES (1) MS D SUSMAN (2) v MR N JACKSON [2006] UKEAT 0331_06_2911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0331_06_2911Case No Appeal No. UKEAT/0331/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LEWISHAM SOCIAL SERVICES (1) MS D SUSMAN (2)APPELLANTSMR N JACKSONRESPONDENT
Before
Mr Justice EliasDate 8 December 2006
[1]APPEARANCES For the Appellant MR CHRISTOPHER QUINN (of Counsel) Instructed by: London Borough of Lewisham Legal Services Lewisham Town Hall LONDON SE6 4RU For the Respondent MS. SALLY COWEN (of Counsel) Instructed by: Messrs Lyons Davidson Solicitors Bridge House 48-52 Baldwin Street BRISTOL BS1 1QD SUMMARY The Claimant was black and disabled. He was engaged through an agency to be operations manager of Lewisham Intermediate Care Services. He worked there for just over three weeks and then his engagement terminated. He alleged that he had been discriminated against on grounds of both race and disability discrimination. The race claim failed but he succeeded on the disability ground. The Employment Tribunal found that his engagement had been terminated on grounds of his disability and that there had been a failure to make reasonable adjustments by the failure to consult with him about his disability. The employers contended that neither conclusion was sustainable. It was alleged that the Tribunal had not dealt with each ground of alleged discrimination separately; that they had failed to give an adequately reasoned decision; that in any event it was perverse; and that in finding that there had been a failure to consult the Tribunal had made a finding of discrimination on a ground never argued before them. The EAT rejected the criticisms of the decision in so far as it related to the termination of the engagement but upheld the appeal relating to the failure to make reasonable adjustments because the issue had never been raised and the employers had had no opportunity of dealing with it. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) Mr Jackson was employed by the Lewisham Social Services for a period of just in excess of three weeks from 1 November 2005 until his engagement was terminated on 25 November 2005.[2]He alleged that the contract had been terminated both on grounds of race and/or on grounds of his disability. It was also contended that his employers had failed to make certain reasonable adjustments to take account of his disability. There was, however, no allegation that the failure to consult him constituted one of these failures.[3]The Tribunal rejected his race discrimination claims but found that there had been discrimination on grounds of his disability, both in connection with the termination of his contract and the failure to make reasonable adjustments.[4]The Respondents, Lewisham Social Services and Miss Diana Susman, now appeal against that decision. Mr Jackson is the Respondent to the appeal, but we will continue to refer to him as the Claimant, as he was below. The background[5]The Claimant is a black Afro-Caribbean man of Jamaican origin. He is very well experienced in the field of social work.[6]The First Respondent had established a joint venture with Lewisham Primary Care Trust ("PCT"). The joint venture is known as Lewisham Intermediate Care Services (LINC). LINC does not itself employ people but has employees seconded by Lewisham and the PCT.[7]Ms Susman, who is the Second Appellant, was effectively the chief executive of LINC. That organisation consists of some 68 professionals and they seek to assist adult patients to make the transition from hospital to home, and then to provide treatment at home to ensure as far as possible that a patient does not need to return to hospital.[8]LINC decided that it needed to recruit certain staff. These included an intermediate care operations manager to run the operations side of LINC and to act as a deputy for Ms Susman. They also needed a clinical nurse specialist and a social work team manager. The team manager reports to the operations manager.[9]Miss Najame, a black woman, was recruited on secondment as the clinical nurse specialist.[10]LINC use the services of a recruitment agency, Social Work Solutions, who recommended the Claimant for the operations manager post. He in fact thought that he was applying for the team manager position. He was not initially interested in the post because the pay was not satisfactory. However, Ms Susman was keen to secure his services and after an initial exploratory meeting she organised a further meeting for 1 October, but that was cancelled by the Claimant one hour before it was due to take place. Ms Susman remained undaunted and arranged a further interview, which was held on 7 October 2004. This led to the Claimant's appointment with effect from 1 November 2004 on a temporary basis, his services being provided by the agency. LINC did not at that stage have the long term funding for a permanent position[11]The Tribunal found that the question of the Claimant's health was not raised at any stage and no health questionnaire was completed by the Claimant. It was not known when he started the job that he had health problems. In fact he has been suffering from uncontrolled blood pressure and hypertension since 1993 and has been admitted to hospital on numerous occasions.[12]Some time during the first week of November, Ms Susman also recruited, through the same recruitment agency, Mr Glyn Jones, a white person who was not disabled, as the team manager. He started work on 8 November 2004.[13]The Claimant's period of employment does not appear to have been a particularly happy one. He was concerned that he was not given a desk or a work station when he first attended work; he felt his role was being trivialised because he was told that his supervision of Mr Jones should involve "a light touch"; and he felt slighted at what he considered to be certain discriminatory acts from Ms Susman and also from Mr Jones' failure to consult with him as he thought appropriate.[14]On 23 November he suffered chest pains and hypertension. He took the day off. He eventually contacted Ms Susman and told her that he had a heart condition. She asked if his daily commute from Eastbourne was adding further stress to that condition but he said that it had not.[15]The Tribunal found as a fact that Ms Susman was unaware of this heart condition until that conversation late on Tuesday 23 November. They rejected the evidence of the Claimant that he had specifically raised the issue with Ms Susman in the first week of his employment.[16]Ms Susman had scheduled the first monthly supervision meeting with the Claimant for 25 November. She saw the Claimant together with Ms Linda Marshall, who was a recruitment consultant with the recruitment agency. At a pre-meeting Ms Susman told Ms Marshall that she had concerns about the Claimant. He was not sufficiently pro-active and she was not always sure what he was doing. Ms Marshall indicated that she had another position to offer him. The meeting was started at one o'clock and the Claimant was told that Ms Susman did not think that he was "a good fit for the operations' manager position" and that her assessment was based on feedback from at least six sources. The Claimant suggested that her real motive was to allow Mr Jones "your blue eyed white boy" to take over his job. Ms Susman was deeply offended by that suggestion and accused Mr Jackson of "pulling a race card" on her. She left the meeting and Ms Marshall discussed with the Claimant what he wanted to do next. The employers contended that the Claimant resigned; he said that he was dismissed. The Tribunal decision.[17]The Tribunal directed itself in accordance with the principles established by the Court of Appeal in Igen v Wong [2005] ICR 931 (CA) noting that if the Claimant established facts from which an inference of discrimination could be drawn, then the onus shifted to the employer to provide an explanation. It then considered both the disability and race claims.[18]As to the latter, it analysed with some care the various particular complaints advanced by the Claimant. These included an allegation that the termination of his engagement was on racial grounds. In some cases the Tribunal found that the Claimant did not cross the first hurdle in Igen v Wong ; in others, a prima facie case was established, but the Tribunal found in each case that there was a non-discriminatory explanation for the conduct.[19]More specifically, in relation to the termination of his engagement, they were satisfied that it was not on racial grounds. This is hardly surprising, given the efforts that Ms Susman had taken to try and recruit the Claimant in the first place, even with knowledge of his race. There is no appeal against that finding.[20]The Tribunal, however, reached a different conclusion in relation to the allegation of disability discrimination. They held that the Claimant was a disabled person within the meaning of the Disability Discrimination Act and although Mr Quinn, counsel for the Respondents, commented on the unsatisfactory nature of the evidence on this, there is no appeal against that conclusion. However, since the employers did not know of the disability until 23 November, there could be no breach of the Disability Discrimination Act for any matters before then.[21]The Tribunal considered the purpose of the meeting on the 23 November. They specifically rejected Ms Susman's evidence that its purpose was merely for the parties to have a collaborative discussion, and that she had not terminated the arrangement. They felt that Ms Susman had gone to the meeting with the fixed intention of terminating the relationship and had already decided to appoint Mr Jones in the Claimant's place. He was in fact promoted to Mr Jackson's place within 24 hours.[22]The Tribunal considered Mr Jones to be an appropriate comparator and found that the Claimant had been treated less favourably than had Mr Jones by virtue of having his engagement terminated. They noted that no criticisms of the Claimant's performance had been made prior to the final meeting. They were accordingly satisfied that there were sufficient facts from which they could draw inferences of discrimination, and the onus therefore shifted to the employers to demonstrate a non-discriminatory reason. They considered but rejected the employers explanation that the reason related to the performance of the Claimant, and concluded that there had been discrimination on grounds of disability:
" The Respondents' explanation for the termination of the Claimant's engagement and the appointment of Mr Jones was the Claimant's performance. We did not accept this explanation. Both had been working for the Respondents for a very short period of time- the Claimant for 13 ½ working days and Mr Jones for 10. The problems which Ms Susman told us she had with the Claimant's performance were not ones raised with him formally or informally before terminating his engagement on 25 November. In the absence of any evidence or findings of fact that Mr Jones' performance was superior to that of the Claimant we do not accept the Respondent's explanation that their decision to terminate the Claimant's engagement and to replace him with Mr Jones was on the grounds of performance. We do not accept that the Claimant's treatment was not on grounds of disability. What had clearly changed about the Claimant since his appointment by Ms Susman was her discovery late on 23 November 2004 that he had a disability which would lead to him taking time off work. Mr Jones had no such disability. The Claimant's engagement was terminated promptly upon the Respondents discovering the disability. We therefore find on the balance of probabilities the termination of the Claimant's engagement was on the grounds of his disability and that he would be likely to take time off while Mr Jones would not."
The grounds of appeal[23]There are four grounds of appeal, although they interrelate to a significant extent. The first is this. The Respondents contend that the Tribunal did not properly separate out the issue of race and disability discrimination. They refer to the judgment of the EAT in The Law Society v Bahl [2003] IRLR 640 at paragraph 159, a case where the claim had been that the Claimant had been discriminated against on both race and sex and where the EAT held that there was an error of law because of the failure by the Tribunal to distinguish between these two elements. The Court of Appeal agreed with that analysis, see [2004] IRLR 799 at paragraphs 135-138.[24]Mr Quinn says that the tribunal made that same error here. They did not properly distinguish the two alleged grounds of discrimination, in particular when they dealt with the first stage of the Igen test. Ms Cowen disputes this; she says that the tribunal did not simply treat the two grounds of race and disability together without differentiating them. The criticism in Bahl was essentially that once the Tribunal found discrimination on race, that automatically involved discrimination on grounds of sex and vice versa. That is not what happened here. On the contrary, the Tribunal analysed the evidence relating to each claim separately, as demonstrated by the fact that the race claim failed whilst the disability claim succeeded.[25]We agree with Ms Cowen' submission. The application of the Igen test here meant that there was prima facie the same evidence which was capable of demonstrating both disability and race discrimination. This evidence was the fact that the termination of the engagement occurred without any advanced warning very soon after the Claimant had taken up the post. But the Tribunal plainly did consider the issues of race and disability separately, first by recognising that the disability was only known to the employers as from 23 November; and second, by considering the evidence adduced by the employers as the explanation for their treatment.[26]As to the race allegation, they were satisfied that the evidence demonstrated conclusively that whatever the reason for the termination of his engagement, it had nothing to do with the fact that the Claimant was black. On the face of it, it would have been bizarre to conclude otherwise, given the considerable efforts made by Ms Susman to recruit the Claimant, who she knew was black. However, the factual issues surrounding the disability claim were quite different and the Tribunal analysed them separately. Accordingly, there is nothing in this ground of appeal.[27]The second ground is directed at the tribunal's reasoning process. This is interlinked with the third argument that the decision of the employment tribunal was perverse. These grounds constitute a root and branch attack at the whole of the tribunal's analysis. Mr Quinn says that the tribunal failed to comply with rule 30(6) of the Employment Tribunal rules: it did not present a proper analysis of the facts; its legal analysis was woefully deficient; and its application of the law to the facts was wholly inadequate and not properly explained. The decision failed to meet the well known standards laid down in Meek v Birmingham City Council [1987] IRLR 250 .[28]Mr Quinn also says that the decision was perverse because evidence to justify the finding of disability discrimination was simply not present. Ms Susman had said in terms in her evidence that she had no concerns that the Claimant's medical difficulties would affect his attendance at work. Yet that was a key element in the tribunal's reasoning. They seem to have rejected her evidence without saying why.[29]Ms Cowen submits that the tribunal has succinctly but clearly set out its reasons so that it is plain why, to use the language in Meek , the Claimant won on this point and the Respondents lost.[30]In our judgment the reasoning is adequate, if somewhat brief. In essence the tribunal rejected the evidence of Ms Susman that she had no fixed intention of terminating the engagement before the meeting on the 25 November. They then indicated why they were not persuaded that the real reason was his performance, in particular the short time that he had been in the post and the fact that no hint of dissatisfaction had been expressed earlier. They felt that the fact that Ms Susman had recently discovered about the medical problems was the obvious explanation for this decision. Of course, we recognise that other tribunals might have assessed the evidence differently, but in our view that is a sufficiently cogent explanation of why the tribunal reached the conclusion it did. It is also grounded in the evidence before it and cannot, in our view, possibly be said to be perverse.[31]We should record, however, that there are two areas which have given us some concern. First, the tribunal has placed some emphasis on the failure by the employers to adduce evidence to show that the performance of Mr Jones was superior to that of the Claimant. We do not see the relevance of that or why there should have been any onus on them to adduce such evidence. The employer's case was that the Claimant was not performing satisfactorily. It was not suggested by the Claimant that Mr Jones was performing equally unsatisfactorily and yet had been treated more favourably. The Claimant's case was that he, the Claimant, had not been unsatisfactory at all. So the tribunal had to decide whether the ostensible reason advanced by the employer was the genuine reason. The performance of Mr Jones was irrelevant to that question.[32]We have considered whether this error vitiates the tribunal's reasoning. We have concluded, not without some hesitation, that it does not. In our view this element in the tribunal's reasoning was not essential to their conclusion.[33]We also see some force in Mr Quinn's submission that Ms Susman had stated in her evidence that she was not concerned that the Claimant's medical condition would lead to absences, and that there was no satisfactory evidence that it would. However, we think it must be inferred that the tribunal simply did not accept Ms Susman's evidence about that. It would certainly have been desirable for the tribunal expressly to have said why they disbelieved her, but again we do not think that the failure to do that vitiates the decision. As to the issue whether there was a proper evidential foundation for the tribunal's finding that the nature of the disability would be likely to lead to the Claimant taking time off, we cannot be sure that we have seen all the evidence on that matter. There has been no agreement about what evidence was given, and no application was made for chairman's notes, and we cannot speculate about what evidence was available. In any event, we think that the tribunal was entitled to infer that the employers would have appreciated that the Claimant taking the day off on the 23 November was unlikely to be a one off event and would be likely to recur.[34]For these reasons, therefore, these grounds fail also.[35]The final ground of appeal is directed at the Tribunal's conclusion that there had been a failure to make reasonable adjustments. This was summarised as follows:
"We find that LINC was under a duty to make reasonable adjustments under s 4B(4) DDA from 23 November 2005 when it became aware of the Claimant's disability. This would involve proactive consultation with the Claimant by the Respondent ( Mid Staffordshire General Hospitals Trust v Cambridge ). The Respondent failed to do this. The Respondent avoided this by terminating the Claimant's engagement."
[36]The principal complaint here is simply that this was never an issue raised by the Claimant. He had raised certain allegations about the failure to make reasonable adjustments in his witness statement, but these concerned the failure of the Respondents to structure his work so as to limit the stress under which he claims he was operating. However, given that the employer did not know about his disability until 23 November, it is not surprising that the Tribunal did not find that there was any failure to make suitable adjustments in that regard. At no stage did he ever suggest that the lack of consultation itself constituted an independent breach of duty -not in the original claim, nor when the issues were identified, nor even in submissions to the tribunal. Ms Cowen conceded that there was no evidence that this particular complaint had been so identified by the Claimant, and Mr Quinn objected that he had not had the opportunity to deal with it.[37]It is well established that a tribunal is not entitled to reach findings on complaints not raised before it: see Chapman v Simon [1994] IRLR 124 per Peter Gibson LJ at paragraph 42, followed by the EAT in The Law Society v Bahl [2003] IRLR 640 , paragraph 196. Nor is this a purely technical point; it goes to the fundamental right to a fair trial. Even if in this case the fact of non-consultation is accepted, there is obviously a powerful argument that an employer cannot be said to have been in breach of that duty in circumstances where he has only known for a day and a half of the employee's disability. It takes some time to put any consultation or assessment in motion. The Tribunal say that the Respondent avoided their obligation by terminating the Claimant's engagement. That may be right as a matter of fact, but it does not begin to demonstrate they were in breach of that duty. If, as the Tribunal found, the termination of the engagement was itself on grounds of disability then that, of course, gives a separate legal remedy. But there is no additional legal remedy because of the fact that they might as a consequence be avoiding legal obligations which would otherwise have arisen.[38]We should add that in any event the EAT has held that the reasoning in Mid-Staffordshire General Hospital Trust v Cambridge [2003] IRLR 566 ought not to be followed. That was in the case of Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 . Tarbuck held that failure to consult is not of itself a breach of the legal duty to make any adjustments (although it is something which any sensible employer should do.) However, this ground succeeds because the claim was in any event never before the tribunal. Disposal.[39]The appeal fails in so far as it is directed to the finding that the Claimant's engagement was terminated on grounds of disability. However the appeal against the finding that there was a failure to make reasonable adjustments succeeds and we substitute a finding that there was no such breach.