Bishun v Heartfordshire Probation Service (National Probation Service) (Disability Discrimination : no sub-topic) [2011] UKEAT 0123_11_2408

EAT
Bishun v Heartfordshire Probation Service (National Probation Service) (Disability Discrimination : no sub-topic)
[2011] UKEAT 0123_11_2408 · 2011-08-24
[1]This is an appeal from the decision of the Employment Tribunal sitting in Bedford that dismissed the Claimant’s claim of unlawful disability discrimination. The claim presented to the Tribunal on 4 July 2008 complained not only of unlawful disability but also of race discrimination. There were a number of Pre‑Hearing Reviews, and at one of those the Claimant withdrew his complaint of unlawful race discrimination. The Tribunal set out the complaints that were required to be determined, namely disability‑related discrimination and direct disability discrimination, and refusal to make reasonable adjustments. The reasonable adjustments are set out in a schedule that appears at the second page of the decision of the Tribunal.[2]May we say right away that we consider that one has to be very careful in approaching Employment Tribunal decisions on the basis of tooth‑combing through to find a phrase that is not as felicitous as it could be, or producing criticisms as a sort of subplot in a decision that runs, as this one does, to 20 pages. Further, we have in mind, although not cited to us (it is now so notorious that it does not need to be cited), the decision of Lord Hoffmann in the House of Lords in Piglowska v Piglowski [1999] UKHL 27 in which the whole House agreed with Lord Hoffmann’s strictures against an appellate court being seduced into applying their own view of the matter on the basis of putting the existing Judgment to an unrealistic, minute, myopic assessment, and, instead of determining the issue as an appellate court should, effectively re‑trying a case on its facts. For any who wish to see a rather scathing attack on that process, that Judgment stands as a template, and of course it is right, as Lord Hoffmann observed, that there has to be a sense of proportionality between injustice as perceived by individuals and the wider social aims of society, and it is scant justice to encourage faint hopes on appeal as though we can deal with absolute justice in this human world irrespective of the underlying merits. The facts[3]The Claimant was a trainee probation officer. There is no doubt that the decision could be criticised on what we would regard as a somewhat unrealistic basis: that at times it might have been helpful if the Tribunal Judge had in mind that anyone reading the Judgment had not necessarily listened to the whole case. The Respondents never challenged, and the whole case proceeded on, the basis that the Claimant had a disability, in that he suffered from sleep apnoea. Sleep apnoea is a condition in which a person who is asleep wakes themselves by the obstruction in the upper respiratory areas (snoring and the like), and therefore is tired during the day. In addition the Tribunal found at paragraph 7 onwards that the Claimant sadly suffered from significant impairments in that he could not read at an appropriate speed for someone of his educational background; in other words, his reading speed was significantly lower, and the Tribunal made a finding at paragraph 7.4:
“To that extent we find the Claimant has an impairment which is substantial, long‑term and has an adverse effect on his normal day to day activities as he requires greater effort in the activities or capacities of concentration and memory.”
[4]It then went on to say at paragraph 7.5:
“7.5 Having regard to the Respondent’s concession in respect of sleep apnoea and also in respect of the Claimant’s reading abilities, it is not necessary for the Tribunal to put a label on the Claimant’s disability. As described by Dyslexia Action: ‘Mr Bishun shows accurate reading and spelling skills, with signs of a well‑developed sight word vocabulary and effective decoding skills. His standard of expressive writing is also fair, with a good vocabulary. However, he is reading slowly when reading for meaning and invests a great deal of effort when dealing with a new vocabulary. He also writes slowly and makes errors of punctuation and grammar. His standard of written communication is not at the level of his spoken communication.’ 7.6 For the avoidance of doubt, in none of the reports we were presented with, was the Claimant diagnosed with dyslexia. 7.7 It is the cumulation of the impairments that we consider.”
[5]Now, we think on any fair‑minded reading, and this was accepted by counsel throughout, that the Tribunal were proceeding on the basis that the Claimant had a disability of sleep apnoea but he also had apart from that the additional complications that he was suffering from some of the symptoms that would be consistent with a diagnosis of dyslexia, but that no definitive diagnosis of that condition was ever reached. The appeal[6]The Appellant was given leave by HHJ Serota QC on two issues: ground 2, not providing support to the Claimant in respect of dyslexia until after 10 April 2008; and ground 3, reasonable adjustments as to the provision of equipment. Counsel on behalf of the Claimant has quite candidly said that ground 3 is the stronger and important ground in the appeal, and one with greater relevance as far as compensation is concerned, and with respect we agree with that. The difficulty is that unfortunately for the Claimant Mr Dawson’s submissions have been somewhat outdated and rendered superfluous by the information that we have in an application by Mr Dawson to put in evidence the statement of the HR manager who was dealing with this particular matter, Ms Moses. Shorn of unnecessary clauses, what it amounts to is this argument. The Claimant was told by Sandra Moses to seek assistance with assistive technology from Access to Work (this is all set out in the Tribunal decision). As put in the skeleton argument, it was suggested that that simply was not enough. The argument was put that having a policy of using Access to Work cannot be said to be a sufficient step to remove the disadvantage. The requirement of the law is, it was said, that there must be something more proactive by the Respondent, and that this was merely an external scheme run through Jobcentre Plus.[7]An application form was sent to the Claimant, who had had to secure his employer’s signature. The Respondent denied ever receiving the application form from the Claimant or from Access to Work, a finding made at paragraph 14.4. The Claimant failed to establish this. It is suggested that telling the applicant to apply to Access to Work for help was to throw the obligation to take reasonable steps on the Claimant, and the fact that the onus on the Claimant may not have been great or costly is beside the point. The duty to take steps is not on the Claimant; it is on the Respondent, it is said.[8]At paragraph 30 of the skeleton argument it is said:
“Even if it could be said to be reasonable to leave it to the Claimant to initiate the Access to Work programme, in considering whether the Respondent took all reasonable steps it is submitted that the Respondent must have an obligation to monitor the application and be aware that 12 months later it had still done nothing to remove the Claimant’s disadvantage.”
[9]We were highly dubious this is a proposition of law. No authority to suggest was quoted in support, save Callaghan v Glasgow City Council [2001] IRLR 724 , which, as was conceded by Mr Dawson, is not an authority that is of great help to him. In that case what happened was that a Claimant had failed in his application and went before the Scottish Employment Appeal Tribunal in which Johnson LJ presided. Mr Callaghan was employed as a residential childcare worker from January 1993; his attendance record deteriorated in 1996, and he was given a verbal warning for failing to follow absence‑reported procedures, followed by a written warning in November 1997. The employers proposed meetings in order to consider the situation, but Mr Callaghan did not attend these, and his attendance record remained poor. Eventually in September 1999 he was dismissed on grounds of his current period of absence, his failure to co‑operate by attending a meeting to discuss his position, and his apparent inability to return to work. An Employment Tribunal dismissed Mr Callaghan’s claim of disability discrimination. The Tribunal found he was a disabled person within the meaning of the Disability Discrimination Act, and he had been less favourably treated by reason of his disability by being dismissed. The Tribunal went on to find the dismissal was justified by reason of Mr Callaghan’s long period of absence. The Tribunal did not consider that by not offering Mr Callaghan part‑time employment the employers had failed to comply with the duty to make reasonable adjustments. It had found he had not requested part‑time work and had he done so such a request would have been accommodated. The Tribunal added even allowing for the applicant’s capacity, had he been better motivated he would have done more to discuss the situation with the Respondents and keep them better informed of his wishes. The Employment Appeal Tribunal dismissed the appeal. What is interesting is the dicta of Johnson LJ, which despite the strictures that had been imposed upon English Judges did not seem to be inhibited in quoting a Latin tag. At paragraph 14 he said this:
“The difficulty about this approach is that on the particular facts of this case, although the Appellant had asserted before the Tribunal he had asked for part‑time work and had been refused it, in evidence in that respect was not accepted, and indeed was expressly disbelieved, the version of the employer being considered, and the version of the employer was that the issue of part‑time work had never arisen. On that basis we do not consider against the particular facts of this case there was any duty on the part of the employer ex proprio motu (namely, on his own motion) to offer part‑time working against the background of the sickness record, absence record and also the fact the Appellant was not fit for any form of work at the relevant time. It is also highly significant to our mind that if the Appellant had co‑operated properly with the various efforts made by the employer to accommodate them, the question of part‑time working might well have arisen and might for all we know be the solution. In this respect therefore we consider the Appellant was to some extent the author of his own misfortune and certainly the circumstances do not in this case create a duty on the part of the employer in relation to the question of part‑time working in the context of reasonable adjustments. We accept the Tribunal’s reasoning.”
[10]Now, in this case the findings made by the Tribunal were that he did not go to Access to Work, that he failed to provide any document for the Respondents to sign, and that they accepted the evidence of the employers as opposed to the evidence of the Claimant. Moreover, the suggestion that the Tribunal should have regard to the fact that there had been no monitoring wholly understates the reality of the position. We now know it was in evidence before the Tribunal that the Claimant was being chased or chivvied as to whether he had been to Access to Work. We are quite sure that this is not a case in which counsel or solicitors have deliberately misled us, but the reality is that evidence was called, Mr Dawson cross‑examined, we are told, about this, and the reality is that Ms Moses was doing, and the evidence was before the Tribunal that she was doing, just what Mr Dawson has suggested should happen, namely monitoring him. In those circumstances, the factual basis for this submission simply does not arise, and we all venture the view that had that factual basis been before the Tribunal as to this court deciding whether to give leave, leave would not have been given on that point.[11]We turn now to the subsidiary ground, which is this: that the Tribunal, having said that they were not concerned with labels, nevertheless could be said to have placed undue reliance on a label. At paragraph 7.5 they say:
“Having regard to the Respondent’s concession in respect of sleep apnoea and also in respect of the Claimant’s reading abilities, it is not necessary for the Tribunal to put a label on the Claimant’s disability.”
[12]In the succeeding paragraph they go on to make it clear, “For the avoidance of doubt, in none of the reports we are presented with, was the Claimant diagnosed with dyslexia.” Now, this subsidiary ground of appeal does not sit well with the finding at paragraph 37:
“The Respondent not providing support to the Claimant in respect of dyslexia until after 10 April 2008 We have found the Claimant has not been identified as suffering from dyslexia and thus this complaint must fail.”
[13]We accept this is an over-simplification of the ET’s own fact finding process. One has to look at the context of this as one sentence in a 20‑side decision. In the overall context it is true to say that there was nothing before the Tribunal that suggested the Claimant had received a formal diagnosis of dyslexia. It is true that the combination of impairments was such that the Tribunal did find that he was disabled, although, as we have said at an earlier stage, we think that could be more explicitly said, but counsel both agreed that that was the way in which the case was conducted. At the end of the day, we consider it was open that there is no error of law in the sense that construing the position strictly the Claimant had not been identified as suffering from dyslexia and therefore his complaint on that as a narrow matter failed. That is not to do justice to the whole of the decision, where from paragraphs 35‑41 the Tribunal make a plethora of findings of fact about the disability‑related and direct discrimination complaints. In particular at paragraph 35 the Tribunal find:
“We do not find that the Claimant was treated less favourably than anyone else however that person is identified and that the Respondent as the Claimant’s employer was justified in obtaining its own assessment.”
[14]They then went on to consider the various issues. The reality is they did not accept the Claimant’s account as to why he had not sought help from Access to Work, and we consider it would be patronising in the extreme, and insulting to the ability of the Claimant, to conclude that because he has some forms of disability that are consistent with aspects of dyslexia and he suffers from sleep apnoea that he is to be treated as though he were suffering from some form of dementia or learning disabilities and had to be checked and monitored. The Claimant made no attempt to access the information technology that might have been available for him. In these circumstances, we consider we have no course other than to dismiss this appeal. We have been most anxious that we should give a Judgment today; it is obviously stressful for the Claimant as well as for the other parties.