1) BURY METRO RACIAL EQUALITY COUNCIL 2) MS M LUQMAN 3) MR S COHEN v MS C LYLE [2008] UKEAT 0466_07_1103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0466_07_1103Case No Appeal No. UKEAT/0466/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
1) BURY METRO RACIAL EQUALITY COUNCIL 2) MS M LUQMAN 3) MR S COHENAPPELLANTSMS C LYLERESPONDENT
Before
His Honour Judge Peter Clark Mrs L Tinsley Mr B M WarmanDate 11 March 2008
[1]APPEARANCES For the Appellant MISS D SEN GUPTA (of Counsel) Instructed by: Bury Metro Racial Equality Council Oddfellows House 94 Manchester Road Bury BL9 OTH For the Respondent MISS K SMITH (of Counsel) Instructed by: Messrs Thompsons Solicitors Acresfield 8 Exchange Street Manchester M2 7HA SUMMARY Practice and Procedure: Amendment Jurisdictional Points: Claim in time and effective date of termination Disability Discrimination: Justification Permission to amend Notice of Appeal refused; too late, raising point not previously passed to full hearing; Respondent disadvantaged. Step 1 grievance letter properly so found. No justification shown by Appellant for disability related discrimination. HIS HONOUR JUDGE PETER CLARK In this disability discrimination case the parties before the Leeds Employment Tribunal were Ms Lyle, Claimant and(1) Bury Metro Racial Equality Council(2) Ms Monaza Luqman and(3) Mr Sam Cohen, Respondents. The Claimant was employed by the First Respondent at the relevant time. The Second Respondent was Chief Executive of the First Respondent, and the Third Respondent was a volunteer and Honorary Officer of the First Respondent. We shall describe the parties as they appeared below.[2]This is an appeal by the Respondents against the reserved judgment of an Employment Tribunal chaired by Employment Judge Lee, sitting over five days in March and May 2007 and promulgated with reasons on 3 July 2007, finding that the Claimant's claims of disability discrimination and failure to make reasonable adjustments were presented within time and upholding her complaints of disability related discrimination and failure to make reasonable adjustments against all three Respondents. The Employment Tribunal's further finding that the First Respondent failed to provide written particulars of the Claimant's terms and conditions of employment does not concern us on appeal.[3]The Notice of Appeal was originally sifted by His Honour Judge McMullen QC, who formed the opinion that three grounds only should proceed to a full hearing, ordered on 11 September 2007. The remaining grounds were found to have no reasonable prospect of success and Rule 3(7) of the EAT Rules was applied. The Respondent challenged the Rule 3(7) ruling at a Rule 3(10) hearing before His Honour Judge Birtles. That application was dismissed by order dated 13 December. Background[4]The findings of fact of the Employment Tribunal relevant to the extant grounds of appeal were these.[5]The Claimant has suffered health problems which restrict her mobility. It is common ground that she was at all material times disabled.[6]In late 2005 she applied to the First Respondent for the post of Diversity Officer. She had considerable experience in the discrimination field, having worked as a Race Community Officer for Greater Manchester Police, and been a trade union activist who sat on the National Executive of UNISON for many years and a lay member of Employment Tribunals.[7]The First Respondent's application form which the Claimant completed did not ask whether she was disabled, but on 20 October she wrote to the Second Respondent pointing out this omission and volunteering the fact of her disability and its effect.[8]She was interviewed for the post on 17 November 2005 by the Second and Third Respondents and the then Honorary Secretary, Mr Turner. That panel had her application form before them, but not her letter of 20 October. During the interview she disclosed that she suffered from lupus but was not asked how that might affect her ability to discharge her duties in the post offered nor what, if any, steps the First Respondent could take to assist her.[9]We note that it was the Respondents' case below that in raising her disability from the outset the Claimant was setting up the First Respondent for a fabricated claim under the Disability Discrimination Act 1995 (DDA). They were then facing a similar claim by the previous Diversity Officer Miss Vitti. The Tribunal rejected that contention whilst observing that the fact of Miss Vitti's claim was a reminder of the First Respondent's obligation to make reasonable adjustments for disabled staff where appropriate.[10]The Claimant was offered and accepted the post of Diversity Officer at the First Respondent's premises at Oddfellows House, Bury. Those leased premises were on the first floor of the building, reached by stairs. There was no lift or stair lift installed. Commencing her employment on 9 January 2006 with the job title Senior Diversity Officer Racial Harassment she was able to manage those steps. Her work also included visits to the Bury Law Centre and Radcliffe Citizens Advice Bureau, which had steeper stairs than those at Oddfellows House.[11]The Claimant started work at the same time as a Mr Beg. The Tribunal accepted his evidence as to the Claimant's apparent mobility and its limitations prior to 9 February, when she fell at the First Respondent's premises, suffering injury principally to her knees. The cause of that fall was a matter in dispute between the parties. The Claimant blamed the state of a carpet; the First Respondent her footwear. Wisely the Employment Tribunal made no finding on that issue, leaving it to the County Court which will hear her claim for damages for personal injury. We agree with the Tribunal that the causation of the fall, which they accepted took place, is immaterial for present purposes. The effect on her mobility, however, is not.[12]On 13 February the Claimant consulted her General Practitioner, who recorded that she had landed on her knees, wrenching her back and left arm and that her left knee gave way intermittently.[13]The Respondent argued that the Claimant had exaggerated the effect of her fall. The Tribunal rejected that contention, accepting the medical opinion evidence before them from the Claimant's GP and Mr Dunningham, an Orthopaedic Surgeon, that whereas before her fall the Claimant had been able to get up and down stairs freely, albeit with some discomfort, at Oddfellows House, subsequently she would have considerable difficulty in doing so.[14]On about 16 February the Claimant made an application for a job elsewhere at the Greater Manchester Centre for Voluntary Organisations. The Tribunal declined to draw the inference, as the Respondents urged, that such application meant that she was then fit for work. Her motivation, the Tribunal found, in making that application was her separate concerns about the job with the First Respondent.[15]On 27 February the Claimant emailed the Second Respondent, updating her on the medical position and inquiring whether she could work downstairs on her return to work. The Tribunal found, contrary to the Second Respondent's evidence, that no response was then made to that email.[16]The Claimant wrote to the Second Respondent on 6 March, enclosing a further sick note for two weeks and pointing out that she was still unable to climb stairs. On 10 March the Second Respondent replied, stating that it was not possible to rent a room downstairs, referring to the Claimant's email of 27 February and pointing out (as was the case) that under the First Respondent's terms and conditions of employment, contained in a document known as the 'red book', having received one month's full sick pay she would now receive statutory sick pay (SSP). She was not contractually entitled to half pay (for two months only) until she had completed four months' service.[17]On 17 March the Claimant wrote again, enclosing a six-week sick certificate. That letter is relevant to the first ground of appeal before us and we set it out in full:
"Dear Monaza I enclose a further sick note for a period of 6 weeks, duly signed. I still have a problem in climbing the stairs and since my workplace is up a flight of stairs with no lift access I am afraid this leaves me no option but [sic]continue on sick leave for the time being. I have had to contact my trade union with regard to both the accident at work and your inability to make "reasonable adjustments" to my working environment. I expect they will be in touch with you in due course."
[18]Commenting on that letter the Tribunal said this at paragraph 6.23 of their reasons:
"On 17 March the Claimant wrote to the Second Respondent again, enclosing a further sick note for a six-week period, and explaining that since she could not climb the stairs and there was no lift access, she had to continue on sick leave for the time being. She said that she contacted her Trade Union with regard to the accident at work and the Respondents' inability to make "reasonable adjustments" to her working environment. She expected that her Trade Union would be in touch with her employers in due course. In our view , this letter is crucial as it explained to the First Respondent that the Claimant would not be able to return to work for at least another six weeks, which was a significant period when she had already had one month off work. Secondly, it makes specific reference to lift access, thirdly it specifically referred to reasonable adjustments, and fourthly, it notified the First Respondent of the strength of the Claimant's feelings, given that she was to refer to her Union Representatives. Taking all of those matters together and in context, we consider that, although this letter did not specifically say so, it was [sic] grievance letter within the meaning of the Dispute Resolution Regulations. It clearly should have caused alarm bells to ring for the Respondents. We therefore find that the statutory grievance letter was sent with in the original time limit of three months from the date of the accident."
[19]On 13 June the Claimant emailed and wrote to the First Respondent (that letter was erroneously dated 6 March 2007), asking her to reconsider her request for reasonable adjustments to be made for her to return to work in the downstairs office.[20]On the same day her trade union became directly involved in the process. Mr Ruane, the Unison Regional Officer wrote to the Second Respondent in these terms:
"On behalf of Ms Lyle I write to lodge a statutory grievance on the basis that Bury REC have discriminated against Ms Lyle given the failure of Bury REC to make any reasonable adjustments to allow Ms Lyle to undertake her work. When arranging for this grievance to be heard I ask you to, please, consult with Judith Holt in this office who has my diary."
[21]A grievance hearing took place at the First Respondent's premises on 5 July. The Tribunal found it most unsatisfactory that the meeting took place in the Claimant's absence with Mr Ruane and Mr Cohen present and Mrs Cohen taking the notes. The Tribunal found Mr Ruane at fault for agreeing to a meeting in her absence and the Respondents for arranging the meeting at their first floor premises, given the requirement under the statutory grievance procedure that the timing and location of grievance meetings must be reasonable.[22]During that meeting Mr Cohen said that(a) it was not practicable to rent downstairs space for the Claimant at Oddfellows House and(b) that there was nowhere to install a stair lift, and that any such alteration would require the landlord's consent. He offered to pay SSP whilst the Claimant submitted sick notes; he did not know what else he could do.[23]On 1 September the Claimant presented her claim form ET1 to the Employment Tribunal and on 13 September she wrote again to the Second Respondent asking once more for reasonable adjustments to be reconsidered. She was not invited to a further meeting to discuss her grievance.[24]There was a break in the Tribunal hearing between 29 March and 1 May 2007. The Tribunal acknowledged that the First Respondent, dependent on outside funding, had limited means. However, during the break it was ascertained that whilst a new stair lift could be obtained for a cost of just over £6,000 plus VAT, a reconditioned lift could be obtained from as little as £1,000. Further, the Tribunal was aware of the possibility of funding for necessary appliances to assist disabled employees from the Access to Work programme. The Tribunal's conclusions[25]Material to the grounds of appeal now before us were these findings by the Tribunal: 1. Limitation It was submitted on behalf of the Claimant that (a) the failure to make reasonable adjustments as alleged was a continuing act (see DDA Schedule 3 paragraph 3) so that the claim form was presented in time at the end of that period or (b), if necessary, that the Claimant's letter of 17 March constituted a step 1 grievance letter within the initial three month period, thus extending time to beyond presentation of the form ET1 by virtue of Regulation 15 of the 2004 Regulations. The Tribunal upheld both submissions; there was a continuing act following the guidance of the Court of Appeal in 2002 (a reference, we infer, to Metropolitan Police Commissioner v Hendricks [2003] ICR 530 ): reasons paragraph 7.1.2. Further, the Claimant's letter of 17 March constituted a step 1 grievance letter (paragraph 8.1, read with paragraph 6.23, to which we have referred). Had the claim been presented outside the primary three month limitation period, the Tribunal would not have extended time under the just and equitable escape clause. 2 Detriments and adjustments The Employment Tribunal found that the First Respondent failed to make reasonable adjustments in the following respects. (i) Considering the installation of a stair lift. (ii) Arranging for the Claimant to meet with representatives of the Bury Law Centre and Radcliffe at CAB at a suitable venue for the Claimant. (iii) Whilst it would not have been a reasonable adjustment to pay sick pay at full rate after the first month of absence, the consequence of the Respondents' failure to make reasonable adjustments was that the Claimant suffered disability-related discrimination which the Respondents could not justify. One element of her consequential loss was her lost earnings (para. 8.1.8). The Appeal[26]The three grounds of appeal which were put before us for determination are:(1) Whether the Tribunal was entitled to find that the Claimant's letter of 17 March 2006 amounted to a grievance? (the grievance point)(2) Whether the Claimant's lost earnings were recoverable when SSP was paid, and whether, in relation to those lost earnings, the Tribunal applied the justification test explained by the Court of Appeal in O'Hanlon v Customs & Excise [2007] ICR 1359 (lost earnings).(3) Whether, in relation to justification, the Tribunal gave adequate reasons for their conclusion? (the Meek point). The grievance point[27]Before addressing the point raised in this ground of appeal we should deal with one matter which we raised with Miss Gupta, appearing on behalf of the Respondents.[28]As is clear from the Tribunal's reasons and the closing submissions presented in writing to the Tribunal below by Miss Smith on behalf of the Claimant, the Claimant's primary case was that the Respondents' failure to make reasonable adjustments was a continuing act and one which continued until at least the presentation of the form ET1 on 1 September. The Tribunal upheld that submission. No point was taken by the Respondents under s32(3) of the Employment Act 2002 that no grievance was raised at least 28 days prior to the date of presentation, nor could it be, in our view, and as Miss Gupta accepts, in the light of Mr Ruane's clear and unequivocal letter of 13 June leading to his meeting with Mr Cohen on 15 July. In these circumstances the claim is in time regardless of the alternative reliance by the Claimant on the extension of time afforded by Regulation 15 of the 2004 Dispute Resolution Regulations .[29]Faced with this difficulty Miss Gupta made application for permission to amend the Notice of Appeal. She submitted that an attack on the Tribunal's finding of a continuing act was implicit in paragraph 6.1 of the Notice of Appeal permitted by Judge McMullen to proceed to this full hearing; she merely wished to make explicit that challenge by adding, by way of amendment, a complaint that the Tribunal had erred in law in finding that there was a continuing failure to act on the part of the Respondents. She submitted that no prejudice would thereby be suffered by the Claimant.[30]The application was opposed by Miss Smith and we invited submissions directed to the helpful guidance given by His Honour Judge Serota QC in Khudalos v Leggatte [2005] IRLR 540 , paragraph 86. .Having considered the factors there mentioned and submissions of Counsel, we refused permission for these reasons. First, the application was made very late in the day. Secondly, the point was not implicit in paragraph 6.1 of the Notice of Appeal; indeed, Miss Gupta did not address the question of the continuing act at all in her skeleton argument. Having not done so, that placed Miss Smith at a disadvantage. Thirdly, Miss Smith makes the telling point that the closest the original grounds of appeal come to challenge the Tribunal's finding as to a continuing act is at paragraph 6.4.2.1 of the grounds, a ground dismissed first by Judge McMullen and then by Judge Birtles at the Rule 3(10) hearing.[31]However, for completeness we shall give our view on the effect of the letter of 17 March having heard full submissions from Counsel. In our judgment the Tribunal was plainly entitled to hold that that letter complied with step 1 of the statutory grievance procedure. Their reasoning at paragraph 6.23 is compelling. It identifies the Claimant's problems in climbing stairs since her fall on 9 February; it mentions the absence of lift access; it refers to reasonable adjustments and it advises the Respondent that the matter has been placed in the hands of her trade union who will be in contact. It therefore, in our judgment, complies with the definition of a grievance in Regulation 2(1) of the 2004 Regulations, namely "… a complaint by an employee about action which has employer has taken or is contemplating taking in relation to him"[32]In reaching that conclusion we reject Miss Gupta's submission that this was not a present complaint because it referred to future action to be taken by the trade union, and we take into account the guidance to be found in the judgment of Elias P in Canary Wharf Management Ltd v Edebi [2006] ICR 719 , particularly paragraphs 24-25 to which Miss Gupta referred, following the approach of Mr Justice Burton President in Shergold v Fieldway Medical Centre [2006] IRLR 76 approving the earlier case of Aspland v Mark Warner [2006] IRLR 87 and Galaxy Showers v Wilson [2006] IRLR 83 .[33]As Miss Gupta points out, at paragraph 6.23 the Tribunal erroneously referred to time beginning to run from the date of the Claimant's accident, 9 February, when the correct date, it is common ground, is 10 March, when the Second Respondent replied to the Claimant's letter of 6 March. That error is of no materiality. The letter of 17 March fell within the three month period beginning with either date for the purposes of Regulation 15. Lost Earnings and the Meek Point[34]It is convenient to take the second and third grounds of appeal now before us together.[35]It is clear from the Court of Appeal judgments in Meikle v Nottinghamshire County Council [2005] ICR 1 and O'Hanlon that, whereas paying full pay to a disabled employee who is off work and subject to contractual reduced sick pay or SSP is not normally of itself a reasonable adjustment, and failure to do so will not normally amount to disability-related discrimination under s3A(1) DDA, where an employer is found not to have made reasonable adjustments which would have allowed the employee to return to work on full pay, that will amount to disability-related discrimination which cannot be justified by virtue of s3A(6).[36]That is the approach which we are satisfied the Tribunal took in the present case. Although paragraph 8.18 taken on its own is not itself fully reasoned on the justification question, when read with the Tribunal's conclusions at paragraphs 8.10, 11, and 12, and findings of fact at paragraphs 6.31, 38 and 39, as Miss Smith invites us to do, it is clear that the Tribunal found:(1) That despite the First Respondent's limited means (para. 6.38) a reconditioned stair lift could be obtained for about £1,000 and funding for that adaptation could probably be obtained from the Access to Work programme (para. 6.39).(2) The First Respondent's landlords would probably have consented to the installation (para. 8.10).(3) That adjustment, together with arrangements for the Claimant to meet representatives of the local Law Centre and CAB at a suitable venue would probably have enabled her to return to work (para. 8.11).(4) Those steps ought to have been clear to the Respondents by May or June 2006 (para. 8.12).[37]In these circumstances we accept Miss Smith's submission that reading the Tribunal's reasons as a whole the Respondents plainly failed to overcome the hurdle presented by s3A(6). They could not show that had the adjustments, found by the Tribunal to be reasonable, been made, the Claimant would still have remained off work. On the contrary, on the Tribunal's findings, the adjustments would eventually have helped her back to work. As to when that may have been would be a matter for the Tribunal to determine at the remedy hearing when considering their award of compensation for lost earnings. Conclusion[38]It follows, in our judgment that no error of law is made out in this appeal. Consequentially it fails and it is dismissed.