SCOTTISH AND SOUTHERN ENERGY PLC v MR I MACKAY [2007] UKEAT 0075_06_3008

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0075_06_3008Case No Appeal No. UKEATS/0075/06Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
SCOTTISH AND SOUTHERN ENERGY PLCAPPELLANTMR I MACKAYRESPONDENT
Before
Mr Justice EliasDate 30 August 2007
[1]APPEARANCES For the Appellant Mrs K McGill (Solicitor) Messrs Macroberts Excel House 30 Semple Street EDINBURGH EH3 8BL For the Respondent Mr C Heggie (Solicitor) Messrs Lawford Kidd Solicitors 12 Hill Street EDINBURGH EH2 3LB SUMMARY Disability discrimination – Reasonable adjustments Unfair dismissal – Reasonableness of dismissal The claimant was dismissed following an extensive absence arising out of a depressive illness. The Tribunal found that he was disabled, had been discriminated against contrary to the Disability Discrimination Act by the failure of the employers to make a reasonable adjustment, and had been unfairly dismissed. The disability discrimination and unfair dismissal findings arose out of the same procedural error, namely a failure to explore satisfactorily with the claimant his commitment for being redeployed. The EAT upheld the employer's appeal against the finding of disability discrimination on the grounds that a failure to consult over options is not itself a failure to make reasonable adjustments: see Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 . However, the appeal against the finding of unfair dismissal failed. The conclusion of the Tribunal that there was a failure to act reasonably was not so outrageous as to be properly characterised as perverse. Accordingly, the finding of unfair dismissal betrayed no error of law. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) Mr Mackay was found to have been unfairly dismissed by Scottish and Southern Energy PLC and also to have been discriminated against contrary to the Disability Discrimination Act 1995 . The company now appeal against both those rulings. The background[2]We will refer to Mr Mackay as the claimant, as he was below. He commenced employment with the company on about 1 May 1980 as an apprentice electrician on the island of Lewis. He continued to work for the company in various posts and when he was subsequently dismissed he was an appliance repair engineer. For a while he worked with another colleague doing the same job, but when that person ceased work following an injury at work, Mr Mackay worked on his own.[3]In the later stages of his employment, instructions concerning his work and the hours to be worked were notified to him using a computer. He found the effect of this was significantly to increase the work pressure on him. He sometimes had to work up to twelve hours a day in any given day. He would be allowed time off in lieu for hours in excess of seven and a half. However, he believed that the times allocated for specific jobs were unrealistic and he was finding it extremely difficult to cope. From 2001 he began to suffer headaches and migraines which he felt were the result of this new working system.[4]On 20 May 2003 the claimant was certified as unfit for work because of depression, and that continued until January 2004 when he returned to work. The Tribunal reached no conclusion as to whether he was expected to work to unrealistically tight deadlines, but they found that the method of allocating work was perceived by him to be extremely stressful and that he found the detailed planning of each job difficult. They observed that the fact that he was working on his own contributed to his distress.[5]Whilst the claimant was away, the company did attempt to get hold of him to establish details of his condition but because of his condition he did not communicate with them. In August 2003 they sought a medical report and instructed their medical adviser, Dr Grant Logan, to provide a report.[6]The claimant's GP provided Dr Logan with a report. It said that Mr Mackay had reactive depression as a consequence of the pressure he was experiencing at work. The GP also observed that the actions of the managers in trying to contact him at home had made his depression worse.[7]Dr Logan reported to the company what the GP had said to him and added that "At this stage it appears that Mr Mackay is not fit for any form of work. When Mr Mackay is fit to return to his role, I would recommend that he work on reduced hours initially before building up to full time. Given the nature of the problem, I do not believe that light duties would be necessary." He also suggested that there should simply be written communications rather than face to face contact, but that it was necessary to understand Mr Mackay's work-related issues so that they could be satisfactorily addressed. Finally he added that unless there was a return to work over the next month – and this report was dated some time in October 2003 – then one option would be to have an occupational physician assess Mr Mackay.[8]That was done, and a report provided on 19 November 2003 by Mr MacDonald, the occupational physician. He considered that Mr Mackay was undoubtedly unfit for work and there was very little prospect in the short or even medium to long term of his returning to his role. The writer added that the position appeared to be worse than indicated in the previous GP report, and concluded as follows:
"It is therefore not possible to advise specifically when Mr Mackay will be fit to return to work. A change in medication may help improve Mr Mackay's illness but his perception of work related problems would still likely exist. The only real way to resolve them would be jointly to address them in the workplace."
[9]On 4 December there was a meeting between Mr MacDonald, and Mr Mackay, who was accompanied by his wife. There was some discussion about the possibility of alternative employment which might be of a kind which would not cause the stress to the claimant, but the claimant was unwilling to relocate and there were no vacancies on the island of this nature. It was then agreed that the claimant should work for a while in the company's power station at Stornoway. This was not because there was a vacancy there, but to enable him to work alongside others for a while in the hope that he would eventually become fit to work.[10]He began doing that on 18 January 2004, shadowing fellow employees. In early March 2004 the respondents reviewed the position and arranged for a further examination by Dr John Smith. A number of questions were put to Dr Smith by the company. He provided information that Mr Mackay was not confident about returning to appliance servicing; that he was on anti-depressant medication; was anxious about the future; and that any further meetings to discuss his future would probably exacerbate his condition. As to the possibility of any suggestions for rehabilitation, he suggested that Mr Mackay should be left in his present position until his confidence improved. He added that Mr Mackay's current feeling was that he would never go back to the position of appliance engineer.[11]On obtaining that report, Mr MacDonald met the claimant on the 31 March. The claimant was advised that he could not continue work in this supernumerary capacity in the power station. The Tribunal rejected any contention that the company had emphasised this fact unfeelingly or maliciously. A further meeting was arranged for 16 July 2004. On that date the claimant again became unfit to work and he never returned to work for the respondents.[12]He was seen by a consultant psychiatrist, Dr Stephen Doherty, in September 2004, who travelled from Glasgow to see the claimant at home because the claimant could not travel to Inverness for a consultation. The conclusion of Dr Doherty was that Mr Mackay was suffering from a severe depressive ill which the patient believed to be caused by stress at work. Because of his anxiety, it was impossible for him to return to work, at least for the foreseeable future.[13]He later answered further queries from the respondents, confirming that it would be unlikely that the claimant could return to work for several months and then only if certain work place issues were resolved. By now he had formed the clear view that Mr MacDonald would not be able to return to his former occupation as appliance service engineer. He stated that:
"The bottom line is that he will need redeployment if he is to return to work with this employer – because of the way he has been affected he will not be able to return to his current post."
[14]This report was not directly provided to management but the gist of it was summarised by Dr Logan in a letter to Mr MacDonald. In these circumstances the company decided to operate their long term sickness absence policy and by letter dated 20 October 2004 invited the claimant to a formal meeting to be held on 2 November 2004. The purpose, as the letter made plain, was to explore the possibility of redeployment and if that were not possible, to consider the continued employment of the claimant with the respondent.[15]The company were told that a meeting could have an adverse effect on the claimant's medical condition and therefore that meeting scheduled for 2 November was cancelled. In late 2004/early 2005 the claimant was referred to his GP by a consultant psychiatrist, Dr Clarke. Dr Clarke produced a report. It was not made directly available to the company but the gist of it was communicated to them by their medical adviser, Dr Irons. This notified the company that the claimant was suffering from a mood disorder; that it was unlikely that there would be any resolution until the work related issues were resolved to his satisfaction, and that employment along the lines similar to those upon which he was employed from January to July 2004 might be helpful, that is, the supernumerary post shadowing existing staff.[16]Mr MacDonald requested further information from Dr Irons about this and he was told that there could be no guarantee, even if rehabilitation along the suggested lines were attempted, that it would be beneficial, but that if he were brought back to normal employment with all the pressures that would entail, then it would likely lead to a deterioration in health.[17]By letter dated 18 May 2005 the company told the claimant that there would be a formal review of his situation at a meeting on 26 May. The meeting was conducted by Maureen Clarke, a company manager, who was accompanied by Mr MacDonald. The claimant was attended and represented by Mr Bailey. The company took the view that it was extremely unreasonable to expect them to accommodate the absence for much longer. Mrs Clarke suggested there should be one more medical review and a further meeting at the beginning of August on the mainland or on another island.[18]The claimant pointed out at the meeting that there had been one retirement and there would be another two in the next year. Mr Bailey suggested that a job in the power station would be suitable for Mr Mackay and would not subject him to the same stress. Mr MacDonald responded by saying he would make enquiries about the job specification and consider his possible suitability in the light of that and other medical evidence.[19]On 30 May Maureen Clarke wrote to the claimant and asked whether there were any restrictions with regard to employment he would be prepared to consider, and whether he would be willing to relocate. He advised that he would not relocate but did not indicate whether there were limitations on the kind of employment he could accept. Subsequently, at his request, there was a job profile sent to him of a vacancy or expected vacancy in the Stornoway power station. Mr MacDonald asked Dr Irons if he thought that the work could be done by the claimant in the foreseeable future. Dr Irons said that he thought it was unlikely, unless his condition had changed. However, he observed that "if the claimant believed himself capable of doing the work specified in the job profile, he….believed that he would be able to take up the duties sometime in the future." He expressed the view, however, that a period of rehabilitation would be required, which would require several months. If the claimant was negative about the post then his ill health would be likely to continue and the new post would not resolve his difficulties.[20]The claimant, in fact, indicated by a letter dated 7 September that he would be pleased to accept the vacancy and to undertake the training required. That was followed by a meeting on 29 September concerning his long term sickness. The decision was taken to dismiss the claimant and that was confirmed by a letter dated 30 September 2005.[21]The Tribunal found at that stage it was known that a mechanical craftsperson would retire from the Stornoway power station at some time in 2006 and no later than the end of November.[22]The claimant appealed against the decision to Mr Hogarth, head of operations, but his appeal was rejected on 14 December.[23]The Tribunal noted that the company had sought to persuade other employees who were qualified to work as appliance repair engineers to change jobs with the claimant, but without success. They had paid the first six months of absence on full pay and the second six months on half pay. They had had to employ contractors to carry out the appliance repair work during Mr Mackay's absence. The issues before the Tribunal[24]The actual claims before the Tribunal were that the claimant had been unfairly dismissed and had been discriminated against by the failure of the employers to make a reasonable adjustment in breach of section 3A(2) of the Disability Discrimination Act 1995 . The Tribunal noted that the parties were agreed that in the circumstances of this case these legal claims essentially gave rise to two issues. The first was whether the claimant was a person with a disability within the meaning of the Act. The second was whether the respondents had carried out an adequate investigation before dismissing him. The Tribunal noted that the parties had accepted that on the assumption that the claimant was disabled, both legal issues depended on that question.[25]The Tribunal found that the claimant was disabled within the meaning of the Act. The original grounds of appeal contended that the Tribunal was in error in reaching that conclusion. However, Ms McGill, who represented the employers, sensibly decided not to pursue that point and we say no more about it.[26]The Tribunal went on to hold that the procedures had been inadequate, thereby rendering the employers liable both for a failure to make a reasonable adjustment, and for unfair dismissal. It is to be noted that it was conceded that in accordance with Southampton City Council v Randall [2006] IRLR 18, a failure to carry out an adequate investigation could amount to a failure to make a reasonable adjustment. That was the premise on which the Tribunal reached its decision with respect to the discrimination claim. The procedural error .[27]In order to understand the reasoning of the Tribunal, it is necessary to sketch out some of the evidence given by Mrs Clark, who made the decision to dismiss, and Mr Hogarth, who rejected the appeal.[28]The evidence of both these witnesses was essentially that the employers had come to the end of the road. Ms Clark said that the employee had been absent for over two years; that there was no prospect of his returning to his old job or indeed any job in the short term; that there was no actual vacancy at the time; that the possibility of redeployment on the mainland had been rejected; that there was uncertainty about whether the claimant would be able to do the work as a craftsman; and that the absence was causing continuing cost to the company. She had considered Dr Irons' observations to the effect that he believed that the claimant would be able to undertake the craftsman's job, essentially if the claimant was committed to it. She accepted that had she been convinced as to his enthusiasm for the craftsman's post, her decision might have been different. She had assessed his commitment and enthusiasm for the job and concluded that there was none. At the final meeting he had been reluctant to have eye contact and had demonstrated no enthusiasm of any kind.[29]Mr Hogarth noted that rehabilitation had been tried and failed. He doubted whether the claimant could pick up the craft skills in time, and in any event considered that a craftsman often had to work to demanding timescales which was in part the cause of his medical problems. All in all, the claimant posed an unacceptable risk. He did, however, agree that if the claimant had not been ill then he could have been trained up to the required level.[30]The Tribunal noted that in many respects the employers had carried out a meticulous and detailed investigation. They observed (para 92) that in the normal case it would be highly unlikely that an employer who refused to investigate the possibility of retaining the employee for over a year in the hope or expectation that he could retrain for and subsequently take a post that did not exist, would be found to have acted unfairly. However, a crucial feature here, in the Tribunal's view, was that it was company policy very readily to retrain employees. But for his disability, the claimant would have been retrained. Moreover, the claimant should have been treated in the same way as other employees unless the circumstances warranted otherwise. The discrimination claim[31]Section 3A(2) of the 1995 Act provides that it is unlawful discrimination under the Act to fail to make reasonable adjustments.[32]Section 4A identified when the duty to make reasonable adjustments arises as follows:
"4A Employers: duty to make adjustments (1) Where – (a) a provision, criterion or practice applied by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer places 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 provision, criterion or practice, or feature, having that effect…."
[33]The Tribunal considered - and the employers accepted - that the criterion applicable here was that in order to retain his job, the claimant would have had to return to his job of appliance repair engineer. The application of that provision placed him at a substantial disadvantage because he could not do that without endangering his health. Therefore, the duty arose requiring the employer to take such steps as were reasonable to prevent the provision having that effect. The Tribunal emphasised that it was not being contended that the reasonable adjustment was to offer a craft job; the question was whether the employers had in their investigations taken such steps as were reasonable. The Tribunal concluded that they had not.[34]The claimant had been led to believe that the possibility of the craftsman's job would be explored. Dr Irons had indicated that he might be able to do it if he had the requisite enthusiasm. He had expressed a willingness to do it; and the question was whether he demonstrated sufficient commitment. The Tribunal accepted that Mrs Clark had sought to assess the claimant's manner and seeming enthusiasm. However, their criticism was that she had never put directly to him how he felt about the possibility of doing the craftsman's job.[35]In the circumstances the Tribunal concluded that "we are not satisfied that the respondents could reasonably reach the conclusion that the claimant lacked enthusiasm and motivation to be retrained as a mechanical craft person." This failure to take such steps as were reasonably necessary to determine whether the claimant was committed to the course of action constituted a breach of section 3A.[36]For essentially the same reason, the Tribunal considered that the dismissal was unfair. The Tribunal recognised that the issue was whether a reasonable employer would have done more, but they concluded that he would. The question whether the claimant was committed to the course of action was crucial, and yet Mrs Clark had not broached the question with him openly and specifically in order to gauge his reaction. The Tribunal found that no reasonable employer would have failed to take this step. The grounds of appeal.[37]The employers contend that the Tribunal's approach to both these issues demonstrates an error of law. As to the finding of disability discrimination, they point out that the principle enunciated in Southampton City College v Randall , which in fact simply applied the earlier decision in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 has been expressly rejected by the EAT in Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 . In that case the EAT expressly held that whilst it is good practice to consult, the failure to do so does not of itself involve an independent breach of the duty to make reasonable adjustments. The premise on which the finding of disability discrimination had been made in this case was therefore false.[38]As to the finding of unfair dismissal, it was setting the bar far too high to say that the failure to raise the issue of the craft post directly with the claimant rendered the dismissal procedurally unfair. The employers had treated the claimant with conspicuous fairness and taken considerable steps to try to ease him back into employment. It was simply perverse of the Tribunal to conclude that a failure to ask a particular question amounted to a procedural defect sufficient to render the dismissal unfair.[39]Mr Heggie, representing the claimant, submitted that Tarbuck was only concerned with a failure to consult the employee. In this case there were more fundamental errors. First, the procedural failing was not just Mrs Clark's failure to raise the issue of the craft job with the claimant. There were other issues not explored. Second, the Tribunal in any event emphasised more than once that had the claimant not been disabled, he would have had the opportunity of being considered for the post of craftsman, whereas the employers had considered this not appropriate for a reason related to his disability.[40]As to the finding of unfair dismissal, it was open to the Tribunal to reach the conclusion it did. The Tribunal had carefully identified why they considered that this further step should be taken; they had taken the view that without raising the craft job directly with the claimant, it was not possible to form a properly considered view as to whether he had the commitment for the job or not. That was a conclusion they were entitled to reach. Conclusions .[41]In our judgment the Tribunal was not entitled to find that there was a failure to make a reasonable judgment contrary to the Disability Discrimination Act . We do not accept Mr Heggie's submission that Tarbuck is not applicable here. The Tribunal emphasised that the issue was not whether the claimant should have been offered the craft job; it was whether that possibility should have been explored more fully with him. Moreover, contrary to Mr Heggie's submission, they did not identify any other alleged failings, procedural or otherwise.[42]In our judgment the failure identified here falls clearly within the scope of the Tarbuck decision. That case has now been followed in a number of more recent EAT decisions, including most recently in HM Prison Service v Johnson EAT/0420/06 where the EAT (Underhill J presiding) chose to follow Tarbuck in preference to Mid Staffordshire . Unless and until the Court of Appeal rules otherwise, we follow the Tarbuck line, essentially for the reasons given in that case.[43]Mr Heggie was right to point out that the Tribunal do in places appear to have concluded that there would have been a fuller investigation of the position with respect to the craft jobs had the claimant not been disabled. That, however, does not establish a breach of the duty to make a reasonable adjustment. Rather it raises the question whether there was disability related discrimination in breach of section 3A(1) of the Disability Discrimination Act.[44]However, the case was not apparently put in that way before the Tribunal, and no reference was made to that provision in its judgment. Moreover, before finding a breach of that section, the Tribunal would have had to consider the question of justification and this they did not do, as Mr Heggie accepts. Accordingly, whilst we accept that a failure to investigate may in principle amount to disability related discrimination, and such a conclusion would not be inconsistent with the Tarbuck case, that was not the conclusion which the Tribunal reached here. It may be that there was some confusion between the two forms of discrimination, but we have no doubt that the issue as raised before the Tribunal was perceived to be the question of reasonable adjustment, and we are satisfied that the Tribunal's conclusion on that point is unsustainable for the reasons we have given.[45]The finding of unfair dismissal has caused us some concern. There is no doubt that the employers here were in many respects extremely solicitous of the claimant's welfare. But we remind ourselves that it is not our job to determine whether we would have reached the same conclusion had we been hearing the evidence. Our task is to decide whether it was open to the Tribunal to find that in the circumstances a reasonable employer would have raised the issue of the craft job directly with the claimant in order to assess his enthusiasm for it before dismissing it as a possible option.[46]As the Court of Appeal made clear in Yeboah v Crofton [2002] IRLR 634 we can only interfere with the decision if there is "an overwhelming case" that the employment tribunal reached a decision which no reasonable tribunal, properly applying the law to the facts, could have done. We do not think such a case is established here. It follows that this finding of unfair dismissal stands.[47]As the Tribunal noted, however, in assessing any compensation it will become highly relevant to determine what would have happened had the proper procedures been complied with. (The possibility that the dismissal may have been rendered fair as a result of section 98A(2) of the Employment Rights Act does not appear to have been canvassed before the Tribunal, nor was it raised before us.) Disposal[48]We uphold the appeal against the finding of disability discrimination but reject the appeal against the finding of unfair dismissal. It follows that the question of remedies now has to be determined by the same tribunal.