SECRETARY OF STATE FOR THE DEPARTMENT FOR WORK AND PENSIONS v MR S ALAM [2009] UKEAT 0242_09_0911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0242_09_0911Case No Appeal No. UKEATPA/0242/09Venue 58 VICTORIA EMBANKMENT, LONDON, EC4Y 0DS
Between
SECRETARY OF STATE FOR THE DEPARTMENT FOR WORK AND PENSIONSAPPELLANTMR S ALAMRESPONDENT
Before
Lady Smith Ms K Bilgan Mr S YeboahDate 9 November 2009
[1]APPEARANCES For the Appellant MR GEORGE BRANCHFLOWER (of Counsel) Instructed by: The Office of the Solicitor Department for Work & Pensions Room GE 16 Quarry House Quarry Hill Leeds LS2 7UA For the Respondent (and Claimant) MISS REBECCA TUCK (of Counsel) Instructed by Messrs Thompsons Solicitors Arundel House 1 Furnival Square South Yorkshire S1 4QL SUMMARY DISABILITY DISCRIMINATION Reasonable adjustments Section 4A(1) and (3) of the Disability Discrimination Act 1995. The Tribunal found that employer had failed to make a reasonable adjustment when it gave the Claimant a 12 month written warning for leaving work early without asking for or obtaining permission. On appeal, the Employment Appeal Tribunal held: no basis in fact for the Tribunal's conclusion that difficulty in asking for such permission was an effect of the Claimant's disability, no basis for holding that the Respondent should have known that it was and, further, the Tribunal ought to have found that the Respondent came within the provisions of section 4A(3) of the DDA so no duty to make reasonable adjustments was imposed. Eastern and Coastal Kent PCT v Grey [2009] IRLR 429 , discussed. THE HONOURABLE LADY SMITH INTRODUCTION This is an appeal from a judgment of the Employment Tribunal sitting at Manchester, Employment

Judge Findlay (sitting with lay members) which held that:

"The claimant's claim that the respondent failed to make a reasonable adjustment under section 4A of the Disability Discrimination Act 1995 when it gave him a twelve month written warning (running from 1 April 2008 ) for leaving work without permission succeeds."
[2]We will continue referring to parties as Claimant and Respondent.[3]The Claimant was represented by Miss R Barrowclough before the Tribunal and by Ms Tuck, of Counsel, before us. The Respondent was represented by Mr G Branchflower of Counsel before the Tribunal and before us. BACKGROUND[4]The background facts are in short compass. The Claimant, who was aged 23 years at the time of the events complained of, was employed by the Respondent as an administrative officer. As at 7 March 2008, he had symptoms of depression as set out in a GP report dated 12 September 2008. That report explains that those symptoms were that he seemed to lose his concentration and lose his temper and that sometimes he got severe headaches. The Respondent did not know but ought to have known these matters by 7 March 2008. It was conceded on his behalf that insofar as the Claimant had symptoms which constituted a loss of concentration, he was disabled within the meaning of section 1 of the Disability Discrimination Act 1995 ("DDA"). The Tribunal's findings went further than that concession to the extent that, in paragraph 19 of their judgment, they concluded that the Respondent ought to have known of those matters set out in the GP report of 12 September 2008, as above noted. Accordingly, the Tribunal concluded that the Respondent ought to have known that the effects suffered by the Claimant were that he seemed to lose concentration, seemed to lose his temper and sometimes got severe headaches. That is the limit of their conclusions regarding what the Respondent ought to have known about any effects of the Claimant's disability.[5]On 7 March 2008, the Claimant arrived late for work having simply advised his line manager that he was going to be late. He had significant financial worries at that time and was hoping to be successful in securing a second job, an evening job. When he arrived at work, which was at about 12.30 pm, he asked his line manager if he could leave early, at 4pm, to attend an interview for that second job. His normal working day finished at 6pm. She refused him permission to do so. At about 1pm he made the same request of a more senior manager who also refused him permission to do so.[6]Later that day, the Claimant became extremely stressed; he was concerned about his finances and about not being able to attend the interview for a second job. He logged off his computer early, at about 5pm and left the office, informing his line manager that he was going, as he left the office. She had no time to react.[7]As a result the Claimant was disciplined. A disciplinary hearing took place on 19 March 2008. At that hearing, the Claimant asked for a number of mitigatory circumstances to be taken into account including: - that he was running late that morning and had missed taking medication (over-the-counter unspecified medication); that he was in financial difficulties and needed to speak to the prospective employer in the second job in order to secure it ; and - he had felt agitated and felt the effects of his stress and depression; he felt unfit to carry on working .[8]Paragraphs 6 and 7 of the Tribunal's reasons contain their findings in fact regarding the disciplinary proceedings:
"6. … Miss ED commenced disciplinary proceedings against the claimant for leaving without permission. She concluded (on the basis of advice that she received from Human Resources) that this was minor misconduct of a more serious nature and merited a twelve month written warning. This decision was upheld following an appeal … 7. The claimant had explained to both ED and JW that his actions had been affected by his medical condition and that he had, by then, been prescribed anti-depressants by his GP. No medical investigation took place at that stage (i.e. during the disciplinary proceedings) and prior to the disciplinary sanction being awarded."
[9]The document setting out for the Claimant the outcome of the disciplinary proceeding told him that all the facts of his case had been taken into account, including what he had said at the disciplinary meeting. The Tribunal make no other findings in fact regarding the disciplinary proceedings that took place against the Claimant. They make no findings in fact regarding any common or general practice or procedure followed or applied by the Respondent where an employee leaves work early without permission. In particular, there is no finding that in such cases, the Respondent has a practice of imposing the sanction of a written warning with a life of 12 months. The Tribunal's Judgment and Reasons[10]We have set out the terms of the judgment above. The Tribunal's conclusion appears to be the result of the following reasoning: i. the Respondent applied a provision, criterion or practice ("PCP") in relation to the Claimant which was that: "... he should either ask for, and get permission from his line manager before leaving his workplace or receive a disciplinary sanction of a twelve month written warning." ; ii. the Claimant had a disability the effects of which were as specified in the GP report of 12 September 2008 ; iii. the Claimant's disability affected his ability to regulate his feelings (paragraph1); iv. the Claimant's disability made him less able to control his actions and feelings than a non-disabled person (paragraph 24) ; v. the Claimant could not control himself sufficiently to clearly ask for permission to leave work early and wait for an answer ; vi. the Claimant was thus much more likely than a non disabled person to receive a formal disciplinary sanction ; vii. it was, accordingly, the Respondent's duty to refrain from giving the Claimant a 12 month written warning; it should have cautioned him not to leave the workplace without clearly obtaining permission if it was at all possible, and if unable to control his feelings he should go to the first aid room and attempt to calm down and should then discuss the cause of his stress with his line manager to seek solutions which would have avoided him being given a formal disciplinary penalty; viii. the above conclusion as to the nature and extent of the Respondent's duty was in conformity with the provisions of s.4A and s.18B of the DDA. Relevant Law[11]Section 4A(1) of the DDA provides:
"(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."
[12]No conclusion can be reached as to the nature and extent of what adjustments can reasonably be expected without first identifying the PCP. Identification of the PCP in the particular case accordingly requires care. As above noted, the Tribunal found that the Respondent applied a PCP in relation to the Claimant which was "that he should either ask for, and get permission from his line manager before leaving his workplace or receive a disciplinary sanction of a twelve month written warning." (para 23). The Tribunal's findings in fact would probably support a conclusion that there was a PCP of instituting disciplinary action if an employee failed to get permission to leave work early since that is something which was, without comment, done. We have real difficulty, however, in accepting that it was open to the Tribunal to go on and conclude that there was a PCP that involved not only disciplinary action being instituted but involved the outcome being a written warning, which is the import of paragraph 23 of the judgment. The findings of fact in paragraph 6 show that Miss ED made a judgment as to the characterisation of the disciplinary breach and as to the appropriate sanction in the light of the particular facts and circumstances of the Claimant's case. Rather than showing that there were only two options on 7 March 2008 (one being that the Claimant obtain permission before leaving work early and the other being that he leave without permission but receive a 12 month written warning: see the Tribunal's judgment at paragraph 23), those findings in fact indicate that the outcome of the disciplinary proceedings was not a foregone conclusion. The issuing of a 12 month written warning was certainly an option but we are not persuaded that the availability of that option amounted to a practice for the purposes of section 4A(1)(a). The options open to the Respondent were plainly wide ranging (i.e. no action, informal response such as advice as to how to behave in the future, verbal warning, written warning with a stated time limit which could be of varying length, dismissal). It could not, on the findings of fact, be said that the practice of the Respondent was to issue written warnings to all employees who left work early without permission to do so. The fact that the Claimant was able to articulate the mitigatory factors on which he wished to rely at the disciplinary meeting indicates that the Respondent's practice was to tailor the outcome to the facts of the individual case. That is to be expected, as is the fact that the decision maker (the Claimant's line manager) specifically articulated that her decision on the disciplinary matter had only been reached after considering all the facts including those put before her by the Claimant at the disciplinary meeting. In making these observations we are mindful of the fact that the Respondent's grounds of appeal did not include an argument that the Tribunal erred in finding that there was a PCP but we feel bound, in the circumstances, to make them and we should record that the matter was raised with Counsel, each of whom made submissions on the point. Mr Branchflower's position was to seek to support the view that there was no PCP. Miss Tuck's position was that there was one; the Tribunal had a wide discretion in determining what amounted to a PCP and the fact that the disciplinary outcome was a consequence of the rule about asking for permission made it a PCP. We were not persuaded by Miss Tuck's submission and remained of the view that it had not actually been demonstrated that the action complained of by the Claimant was a PCP.[13]The Tribunal also required to consider whether the provisions of section 4A(3) and 4A(3)(b) of the DDA applied so as to show that the Respondent was not under any duty to make reasonable adjustments. They provide:
"(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not be reasonably expected to know – … (b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)."
[14]Counsel referred us to the decision of this Tribunal in the case of Eastern and Coastal Kent PCT v Grey [2009] IRLR 429 , a case where the Tribunal had found that the employer knew or ought to have known of the Claimant's disability (a learning difficulty) at paragraphs 11-13:
"11. In our view, subsection (3)(b) means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer: i. does not know that the disabled person has a disability; ii. does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled; iii. could not reasonably be expected to know that the disabled person had a disability; and iv. could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled. 12. It is necessary to stress that these are cumulative and not alternative requirements and that is because of the use of the word 'and' in two significant places in subsection (3), which is set out in paragraph 5 above. The first use of the word 'and' is between the words; 'the employer does not know' and the words 'could not reasonably be expected to know'. The second is between the words 'the person has a disability' and 'is likely to be affected in the way…' 13. If the draftsman of this provision had intended the requirements to be alternative rather than cumulative, surely he or she would have used the word 'or' rather than the word 'and'. Indeed, what is clear is that the section cannot be construed so that 'and' means 'or'."
[15]Those passages would appear to indicate a view that unless an employer qualifies under each and every one of the matters listed from i. to iv. in paragraph 11 of the judgment, section 4A(3) cannot apply to him. In the Eastern and Coastal Kent PCT case, the employer could not show that he qualified under all four matters because it had been found that it either knew that the Claimant had a disability or that that was something that it ought to have known. That would, on the Tribunal's own reasoning point to the employer definitely not qualifying for the benefit of section 4A(3)(b). However, the Tribunal disposed of the appeal by remitting the case to the Employment Tribunal to determine whether or not those statutory provisions had been satisfied by the employer thus apparently leaving open the question of whether or not section 4A(3)(b) applied. That gives the impression that matters were not in fact regarded by the Employment Appeal Tribunal as being that an employer could only qualify for the benefit of section 4A(3)(b) if all four of the questions posed were answered in the affirmative.[16]In the light of the foregoing alone, we cannot agree that Eastern and Coastal Kent PCT can be taken to be authority for the proposition that an employer cannot benefit from the provisions of section 4A(3) unless he qualifies in the manner suggested. Both Counsel in this appeal agreed that the fact that there was a remission to the Employment Tribunal in Eastern and Coastal Kent PCT appeared to be inconsistent with the discussion at paragraphs 11-13 of the judgment.[17]Separately however, it seems to us clear, as a matter of statutory interpretation and giving the language of those provisions their ordinary meaning, that to ascertain whether the exemption from the obligation to make reasonable adjustments provided for by section 4A(3) and 4A(3)(b) applies, two questions arise. They are: 1. Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? If the answer to that question is: "no" then there is a second question, namely, 2. Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?[18]If the answer to that second question is: "no", then the section does not impose any duty to make reasonable adjustments. Thus, the employer will qualify for the exemption from any duty to make reasonable adjustments if both those questions are answered in the negative. That interpretation takes proper account not only of the use, twice, of the word "and" but also of the comma after "know" in the second line of section 4A(3).[19]Miss Tuck submitted that knowledge of disability would prevent an employer from being able to rely on section 4A(3)(b) but for the reasons explained above, we cannot accept that submission. Miss Tuck sought to explain her interpretation by submitting that if the circumstances were that an employer knew of an employee's disability but could not reasonably be expected to have known of the relevant effect, the duty to make adjustments would still arise but the lack of knowledge of effect would be taken into account when considering reasonableness. We consider that such an interpretation is strained and cannot be what was intended; subsection (1) is about the duty to make reasonable adjustments and it does not read as imposing any duty if the adjustments in question are not reasonable ones. If the employer could not reasonably have been expected to be aware of the relevant effect, no duty to make reasonable adjustments arises because the reasonableness of his ignorance would make it unreasonable to impose on him the duty to adjust.[20]Both Counsel referred to the case of Ridout v TC Group [1998] IRLR 628, a case where a prospective employer had knowledge of the Claimant's disability but was reasonably ignorant of its effects; the Employment Tribunal dismissed the Claimant's complaint and this Tribunal dismissed the appeal thus demonstrating circumstances where an employer could not have answered all four of the Eastern and Coastal Kent PCT questions in the affirmative yet was found not to have had a duty to make reasonable adjustments. The approach in that case would appear to fit with the analysis we set out above. Discussion Section 4A of the DDA:[21]In this case, question 1 of the two questions set out in our "Relevant Law" section falls to be answered in the negative. The Respondent did not know of the Claimant's disability and did not know that it was liable to have any effect on him. The second question then arises. As regards that second question, whilst the Respondent ought to have known that the Claimant was disabled to the extent that he had symptoms of depression comprising difficulty at times in concentrating and with keeping his temper and severe headaches at times, it cannot be said that he ought also to have known that that put him at a substantial disadvantage as compared to a non disabled person in relation to any PCP that was applied by the Respondent. That is because, even assuming that a PCP as identified by the Tribunal at paragraph 23 was applied to the Claimant, there was no finding of fact that difficulty in asking for permission was a feature of the Claimant's disability. Putting matters at their highest, the Respondent ought to have known that there could be times when, because of his disability, the Claimant might have difficulty in concentrating, difficulty in controlling his temper and severe headaches, none of those features amount to or imply difficulty in asking for permission when it was required. So, the second question also falls to be answered in the negative because although the Respondent ought to have known that the Claimant had a disability, the nature and extent of which was as set out in the GP letter of 12 September 2008, it could not be concluded that they ought to have known that the disability had the effect to which the Tribunal refers. We thus accept Mr Branchflower's submission that the Tribunal erred in law in failing to apply the provisions of section 4A(3) of the DDA correctly . The Tribunal's Reasoning[22]Separately, we turn to the Tribunal's reasoning which was attacked by Mr Branchflower as, essentially, involving the drawing of conclusions for which there was no basis in the evidence. We are satisfied that the Tribunal also erred in this respect. With reference to our numbering of the stages in that reasoning we accept that the Tribunal had no basis for stages iii – viii in their reasoning process. The first quantum leap was that made by them from stage ii to iii. The effects explained in the GP's letter were not that the Claimant had a general difficulty in regulating his "feelings", a concept which might include temper but plainly encompasses much more than that. They then, at iv, leap to a conclusion that he had difficulty in controlling not only his feelings but also his actions; again, neither of these featured as effects that were specified in the GP's letter and difficulty in controlling actions is not necessarily a feature of difficulty with temper control or indeed of difficulty with control of feelings. The Tribunal then, in perhaps the greatest leap of all, concluded that the Claimant would have had difficulty with asking for permission to leave work and waiting for an answer. Even if they had had a basis for concluding that he had difficulty with controlling his feelings, that of itself would not have justified the conclusion that he therefore, as an effect of his disability, would have had difficulty in complying with his employers' quite reasonable expectation and requirement that he would ask for permission before leaving work early. The Tribunal's reasoning appears, rather, to be the result of their speculating, possibly on grounds of sympathy, about what might have lain behind the Claimant's actions, but speculation is not something in which they were entitled to engage.[23]Accordingly, for these reasons also, we are satisfied that the respondents' appeal is well founded.[24]In these circumstances the appeal succeeds. Disposal[25]We will pronounce an order upholding the appeal and dismissing the Claimant's claim.

Cited in 2 later judgments