MRS M J LEWIS v DEPARTMENT OF WORK AND PENSIONS [2007] UKEAT 0413_07_2012

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0413_07_2012Case No Appeal No. UKEAT/0413/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M J LEWISAPPELLANTDEPARTMENT OF WORK AND PENSIONSRESPONDENT
Before
His Honour Judge McMullenDate 20 December 2007
[1]APPEARANCES For the Appellant MR DONALD BROATCH (of Counsel) (Appearing under the Employment Law Appeal Advice Scheme) For the Respondent MR PETER SAVILL (of Counsel) Instructed by Messrs Field Fisher Waterhouse LLP Solicitors 35 Vine Street London EC3N 2AA SUMMARY Disability Discrimination: Reasonable adjustments Practice and Procedure: time for appealing The Employment Tribunal did not err when it dismissed the disabled Claimant's claim that the Respondent unlawfully breached its duty to make reasonable adjustments when her made to measure office chair broke and, over 20 days pending repair, six substitutes were provided for her. The nature of the adjustment and the time it takes to put and keep it in place relate to reasonableness and are questions of fact. Observations on request for a transcript out of time. HIS HONOUR JUDGE McMULLEN QC This case is about the duty to make reasonable adjustments for a person who is disabled. Disability discrimination is a social evil and is widespread and the legislation is there to outlaw it. Of the cases which come before us contending that employers have discriminated or failed to make reasonable adjustments, this case must be at the extreme end as being jejune, for we say at once that the Tribunal was correct to dismiss the claim. The judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against the reserved judgment of an Employment Tribunal sitting at Exeter over three days, Chairman, Mr A D Puttick, registered with reasons on 25 September 2007. The Claimant today has the advantage to be represented by Mr Donald Broatch of Counsel and at the Employment Tribunal, was represented by other counsel. The Respondent is represented by Mr Peter Savill, of Counsel, as below.[3]The Claimant claimed constructive unfair dismissal and unlawful disability discrimination, other claims not being pursued at the hearing. The Respondent denied dismissal, denied unfairness and contended that it had indeed made the adjustments which were reasonable in the Claimant's case. The essential issues before the Employment Tribunal were to determine whether the Respondent was in breach at specific periods of time of its duty to make reasonable adjustments and, in respect of the claim for unfair dismissal, whether the Claimant resigned in response to a repudiatory breach of contract by the Respondent. It dismissed all the Claimant's claims. She appeals.[4]At a PHR, the Claimant's claim to be disabled was upheld. She has sciatica. The three-person Employment Tribunal dismissed her claims. The Employment Judge, on a review application, exercised his power and held there was no reasonable prospect of success.[5]We are the fifth constitution of the EAT to consider in detail the Claimant's case. Keith J ordered a stay pending the review. HHJ Peter Clark decided on a Rule 3 sift that the case had no merit. The Claimant exercised her right under Rule 3(8) and produced a fresh Notice of Appeal of which HHJ Birtles took the same view. The Claimant then exercised her right and made an application which was heard by Elias P under Rule 3(10) where the Claimant had the advantage for the first time to be represented by Mr Broatch, giving his services under the aegis of the ELAA Scheme and achieving a degree of success. The President held there was no prospect in a number of the grounds but let two go forward, which are now with us.[6]The President ordered an attempt to agree the notes of relevant evidence. This failed. The Employment Judge was asked for his notes in an order which I made in case management. With commendable speed and thoroughness, despite sickness, he produced his notes and we are very grateful to him for taking the time to do that. They have not been referred to by either counsel in substance. It is disappointing that when parties are represented by lawyers, an agreement over evidence given or not given cannot be achieved and there has to be public expense in asking the Employment Judge to produce notes.[7]Looked at in the round, the Claimant's case has received the attention of judicial officers in the Employment Tribunal and the EAT on about a dozen occasions. The President, citing the two issues which should go forward, indicated that it was open to the Claimant to contend the Tribunal erred in law and in fact. This appears to us to be a slip in the learned President's order because, of course, an error of fact cannot be raised unless it is an error of law consisting of a perverse decision. In any event, Mr Broatch was not misled because he had not seen the order and he, as is quite proper, shaped all his arguments in terms of questions of law. The legislation[8]Neither counsel has raised an issue over the description of the law relevant in this case, given by the Tribunal, and we gratefully adopt it. As for the Disability Discrimination Act 1995 :
"22. Under 3A: … a person discriminates against a disabled person if for a reason which relates to the … disability he treats him less favourably then he treats … others to whom that reason … does not apply and he cannot show that the treatment in question is justified. (2) … a person … discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person …' Under 4A: (1) Where a provision … or practice applied by … an employer places the disabled person … at substantial disadvantage in comparison with persons who are not disabled it is the duty of the employer to take such steps as is reasonable in all the circumstances of the case for him to have to take in order to prevent the provision … or practice … having that effect.' Under 3B: (1) … a person subjects a disabled person to harassment where for a reason which relates to the … disability he engages in unwanted conduct which has the purpose or effect of violating the disabled person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. (2) Conduct shall be regarded as having the effect … only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect."
[9]As to unfair dismissal under Employment Rights Act 1996 , the statement of the law given by the Tribunal was this:
"24. When considering whether Mrs Lewis was constructively dismissed we must apply the test whether the respondent breached a fundamental term of the contract of employment; so that Mrs Lewis could regard the contract of employment as repudiated; and that she was no longer bound by it; and resigned because of that breach, and for no other reason; and did it expeditiously. "
This is expressly accepted to be correct by Mr Broatch. The facts[10]Shorn of the matters about which no appeal now lies, the facts are that the Claimant was an administrator employed by the Department of Work and Pensions from 23 April 2001 until she resigned, giving five weeks' notice, on 4 March 2005. During the course of her career, she suffered from sciatica and an assessment was made for her. A solution to the Claimant's now accepted disability was to provide ergonomic seating and working arrangements and originally a chair was provided called an RH4. Other adjustments were made to include a gas-filled mitre arm for her WP and a footstool but this case focuses upon the chair. That chair proved to be inadequate and a further assessment was made by the Regional Disability Service which gave as options the following. "1). Change the foam covering on the existing chair. 2). Replace the chair with the chair from the Opera range. Opera 25 or Opera 26. 3). Involve Mr Tony Adlam from Atlantic Office to look at a Theropad chair."[11]As a result of the choice of the second option, the Claimant continued to work and had no difficulties until the chair was broken on 23 September 2004. From the next day at work until she went off sick on 21 October 2004, the chair which she had been prescribed and which had been made-to-measure for her, known as an Opera chair (we assume an Opera 25 or an Opera 26) was with the manufacturer, Advanced Seating Designs. The Respondent had through its agents, Trillium, caused the chair to be sent for repair. It was held by the Respondent's officers to be repairable. Trillium is important because the contractual arrangement between the Respondent and Trillium was that the Respondent had to place orders for, and traffic of, its office equipment through Trillium, including this broken chair.[12]The Respondent took various steps to replace the chair while it was undergoing repair. During a period of 20 days, it provided six different chairs. During the whole of this period, there is a more or less daily record of efforts being made to deal with the problem. It was this: it had been assessed as a reasonable adjustment for the Claimant's disability that she have a made-to-measure chair and when that became unavailable, six further chairs were supplied for her to try. On at least one day, she was not there and she could not try it out. Allowing a reasonable period of time for each chair to be tried out, Mr Broatch doing the best he could suggested two days or so, and noting the efforts made to chase up various suppliers, 20 days went by without the chair being repaired but with the supply to the Claimant of others.[13]An important finding by the Tribunal is that there could be other chairs suitable for the Claimant's needs. It is not the case that only an Opera would fulfil those needs. The basis of that finding was evidence given by a manager and the written report which we have cited about chairs which would be useful for her. The Claimant alleged that she had found a way of getting a chair of the same model within four days. That was not put to the management and they did not know that. We have been taken to the evidence about this and it appears that the industry of the Claimant in finding this facility revealed that this covered only chairs Opera 20 and Opera 60. It did not include Opera 25 or Opera 26 one or other of those being the made-to-measure chair provided for the Claimant. The finding that this was not the sole adjustment which could reasonably be made is one which is soundly based.[14]The Tribunal went on to consider whether or not there had been a breach of the duty to make reasonable adjustments. It was relevant to consider the relationship with Trillium but it did not relieve the Respondent of its duty under the Act. This is a firm finding. It is contended, however, that while that indicates the Tribunal did not absolve the Respondent simply because it had a contractual relationship with Trillium, nevertheless, it ought not to have been a factor considered by the Tribunal.[15]The Claimant went off work on 22 October 2004 and stayed off until shortly before Christmas when she took leave. On 4 January 2005, she returned to work but the chair had still not been returned and she was allowed to go home on pay until the chair arrived. She resumed her duties on 17 January 2005. She had fully certificated absence which did not give a certain forward date for her return or indicate that her return was conditional upon getting a chair. The period in January 2005 was attributed to special leave, for which the Respondent has a policy specifically tailored to place a person on while measures are taken to adjust for their disability.[16]The Claimant had raised a grievance and in due course, on 4 March 2005 resigned. She contended that she had been constructively dismissed and raised a number of issues relating to bullying and harassment by a female officer. She also raised the question of whether she had been given adequate breaks during working hours from 24 September to 21 October 2004 when she contended that she was not able to take a break for about a third of the time while she was on the front desk of the Launceston office. For most of that time, she was working full-time which is five days 37½ hours a week but from 18 October 2004 she went down, at her request, to 30 hours, Tuesday to Friday.[17]The Tribunal rejected all of the history as contributing towards a repudiatory breach. The basis upon which it rejected the allegation in relation to inadequate leave was also that the Claimant did not submit a written grievance on that matter and so it had no jurisdiction. We have been told by Mr Savill that he took the jurisdiction point under s32(2) of the Employment Act 2002 and the 2004 Regulations. There was no opposition by counsel then instructed for the Claimant but nevertheless the Tribunal went on to take an analytic approach to the issues which she raised. It dismissed the claim. The Claimant's case[18]There is a duty to make reasonable adjustments for a disabled person. It is contended that the provision of this particular chair was such an adjustment. The Respondent discharged its duty until the chair broke. Then, or by seven days or so thereafter, it breached its duty for it did not, within a reasonable time, replace the chair. There is not just a duty to make an adjustment but to maintain in place an adjustment made, otherwise there is a breach.[19]As to the grievance point, Mr Broatch accepts that if he fails on the first point, there is almost nothing left of his second. Heading off Mr Savill's argument that in the light of Mr Savill's description of what occurred at the Tribunal this is a new point, Mr Broatch contends it is not, but concedes that it would require further examination by the Employment Tribunal for this point to succeed. Again, realistically, in the light of authorities which we have shown to him, he accepts that my judgment in Lambrou v Cyprus Airways UKEAT/0526/06 would make the Tribunal's analytic approach here wrong unless this Tribunal were to be persuaded not to follow Lambrou .[20]Whether or not it is a new point, a sophisticated argument was raised as to the relationship between the treatment of this for the purposes of the jurisdiction bar under the 2002 Act and the ability to utilise the material for the purposes of a claim. It is not necessary for us to deal with it. The Respondent's case[21]On behalf of the Respondent, it is contended that both the points here are questions of fact. The Tribunal is the sole judge of what adjustment is reasonable. There is an objective standard but reasonableness includes timing. Judging how long it takes to replace a chair and whether there comes a time when the adjustment should have been made is again a question of fact.[22]As to the grievance point, reliance is placed upon my judgment in Secretary of State for Health v Rance [2007] IRLR 655 at paragraph 50 which indicates that a decision by the EAT to admit a new point will be very rare, particularly when the party is represented below and where it would require further examination by the Employment Tribunal. In any event, applying Lambrou , the point cannot be made. Discussion and conclusions[23]We prefer the arguments of Mr Savill and will dismiss the appeal. The decision by the Employment Tribunal is indeed one of fact. Determining what an adjustment is and whether it is reasonable is a matter for the Tribunal, having considered the statute and the guidance issued by the DRC. Timing is also a question of fact. Twenty days, during not all of which the Claimant worked at her station, passed after the chair broke. The relationship with Trillium is a relevant matter. It did not control the Respondent's response. The Respondent did not say, "We cannot do anything, we have to go through Trillium and we have no money" as a way of defending the claim for reasonable adjustments. What it did was to make provision for the chair to go back to Trillium in accordance with its contractual arrangements and then on to the manufacturers and for six substitute chairs to be provided.[24]It will be recalled that the ergonomic assessment did not specify the particular chair but it was one of a number capable of providing the adjustments needed for the Claimant's disability. So the Respondent was, we hold, quite reasonable during the time when it was hoping to have the chair repaired to supply substitute chairs. It would be different if the sole determinant was to replace the chair with a made-to-measure chair which the Claimant already had. But since the report allows for another chair from the Opera range, either an Opera 25 or 26, or from another supplier, it was quite reasonable for the Respondent to procure the six additional chairs. It was also reasonable for a period of time to elapse so the Claimant could try each of them out. Twenty days was accepted by the Tribunal. That was a matter for it. We can see no error.[25]As to the middle period before she returned to work, that was covered by sick notes. Our judgment in NCH Scotland v McHugh , UKEAT/0010/06 indicates that the duty is not triggered during the period of time when the Claimant is absent and that is accepted by Mr Broatch.[26]No point is taken about the time the Claimant was on holiday and, of course, during this time, there was no clear indication as to when the Claimant would come back. When she did, she was put on special leave for which the Respondent has a policy and no point is taken about it. Thus, we hold that the Tribunal made no error in its assessment that, for the whole of that period after the chair broke, the Respondent was not in breach of its duty to make reasonable adjustments.[27]We make clear, as this Tribunal did, that it is not open to an employer to shelter behind some contractual relationship which might cause a substantial delay in making the adjustments or to plead that it does not have sufficient funds immediately available. Of course, cost is a relevant factor but immediate cash-flow is not one that ought to be made by a large organisation. That need not arise in this case for it was not the argument of the Respondent, nor the holding of the Tribunal, that the Respondent could shelter behind that relationship in order to delay taking steps to adjust for the Claimant's disability. Efforts were being made. The Respondent did not sit back and wait for the chair to be repaired but took active steps during the whole of that time to see if something could be done in substitution.[28]The second question in this appeal relates to the grievance. Mr Broatch realistically recognises that since we have dismissed the first point, there is little left in this case. We hold that the point should not be raised for it is indeed new. The point was not expressly conceded but there is force in Mr Savill's submission that it was tacitly conceded. When a jurisdiction point is taken before a Tribunal with both parties represented by counsel, if there is no resistance to it, then it is most unlikely that it can be opened by different counsel at the Appeal Tribunal. It does, in this case, require further examination of the evidence by the Employment Tribunal and that, in itself, is a very strong reason for us not allowing it to be argued, applying Secretary of State v Rance (above).[29]The strength of the point might also be a relevant factor. Lest we are wrong above, we will consider it. The point cannot survive the judgment in Lambrou although, to the benefit of the Claimant, the Tribunal took a pre- Lambrou analytic approach. It is wrong now and we have heard no strong argument to indicate that Lambrou is incorrectly decided. Mr Savill relies upon it and submits that it represents a clear statement of the law. This means that the Tribunal correctly decided that it had no jurisdiction, for a grievance had not been raised. The issue of whether a grievance has been raised has now been clarified by a concession by Mr Broatch. No grievance was raised and thus the Tribunal was correct to preclude this as a matter of jurisdiction.[30]In any event, the point more or less disappears, given the reasons advanced by the Claimant for her claim of constructive unfair dismissal, all of which have now been dismissed on appeal or dismissed by the Tribunal. The only one which remains is the inadequate breaks. Mr Broatch engagingly recognises that this makes the claim for constructive unfair dismissal very weak and so we have no difficulty in taking either approach. Our primary approach is that this is a new point and that we are not depriving the Claimant of a substantial argument for there is nothing in it but if we are wrong, Lambrou controls the result. The appeal is dismissed. Postscript[31]It will be surprising that a Judgment delivered on 21 December 2007 is not published for nine months. The following is by way of explanation and guidance as to the future practice, and is given without submissions from either party.[32]Reasons are given for every judgment after a hearing, either orally or in writing. The Practice Direction [2008] IRLR 621 says this 18.5 Transcripts of unreserved judgments at [a Full Hearing]: where judgment is delivered at the hearing, no transcript will be produced and provided to the parties unless:18.5.1 either party applies for it to the EAT within 14 days of that hearing; or18.5.2 the EAT of its own initiative directs that the judgment be transcribed, e.g. where it is considered that a point of general importance arises or that the matter is to be remitted to, or otherwise continued before, the Employment Tribunal.[33]So there is an unfettered right to a transcript if an application is made within 14 days. It may be that the court would question an application by a successful Respondent, when permission to appeal is not given and there are no further proceedings in the Employment Tribunal. But the right exists.[34]By Rule 37(1), the 14 days for seeking a transcript can be extended. An application is required by Rule 37(3). Nothing formal is needed but it must give good reasons. The application is then considered by the Registrar under Rule 20. She must have regard to the overriding objective in Rule 2A when deciding the point. An appeal lies within five days to a judge: Rule 21.[35]The court is entitled to consider all the circumstance, including the cost, time involved and utility, in producing a transcript. The EAT does not charge parties. The cost is about £250 when the service is outsourced. Considerable judicial time is taken in checking the text and the citations, and producing a summary. Even if a request is made at the hearing, many months may pass before a draft is given to the judge. Often the judge will by that time be in a different jurisdiction and the bundles must be couriered and returned, at a cost.[36]When considering utility, the prospect of an appeal is relevant and the practice of the Court of Appeal is instructive. If there has been no application for permission, or the EAT has refused it, and 21 days have passed, there is no practical point in a transcript unless one is requested by the Court of Appeal, when it will be expedited. It is assumed the Court of Appeal applies CPR Practice Direction 5.12-5.13 ( Civil Procedure 52PD.23-26) and will only direct a transcript (which necessarily is at public expense since the EAT does not charge) in circumstances when it would otherwise certify that the cost of a transcript is an excessive burden and there are reasonable prospects of success.[37]In Perotti v Watson [2004] EWCA Civ 269 and Perotti v Westminster City Council [2005] EWCA Civ 581 , transcripts of lower tribunals were refused until fully particularised grounds of appeal had been produced, and other methods for obtaining a note of the Judgment had been exhausted. In the latter, Brooke LJ pointed out the duties of advocates to take and to transcribe a note of a Judgment in every legal proceeding, and to provide it to an unrepresented appellant (PD5.14). One ground for refusing was the cost (in 2005) of about £0.02p a word. I respectfully agree with the editors of Civil Procedure 2008 that public funds should not be expended where it is fruitless which in the EAT includes when there are no real prospects of success, or the cost is disproportionate to the remedy sought.[38]In the present case, the Claimant did not attend but was represented at public expense by counsel. No application was made for permission to appeal or for a transcript. The Claimant later sought a transcript. She disclosed a letter from her solicitor advising any appeal is hopeless. The Registrar refused to extend time to allow her application for a transcript. Further time passed and the Registrar acceded to a reasoned application made in July 2008 by Mr Broatch, citing the Claimant's non-attendance due to ill-health and her solicitors' failure to request a transcript. I am not deciding an appeal against her refusal but those seem to me to be proper grounds for the Registrar to consider. For the future, any application out of time for a transcript must be made with full grounds and if they include the pursuit of an appeal, the grounds of that appeal. It should also say why the note bound to have been taken by an advocate is not sufficient to inform the party of the reasons.