MR S OLENLOA v NORTH WEST LONDON HOSPITALS NHS TRUST [2012] UKEAT 0599_11_2906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2012] UKEAT 0599_11_2906Case No Appeal No. UKEAT/0599/11
Between
MR S OLENLOAAPPELLANTNORTH WEST LONDON HOSPITALS NHS TRUSTRESPONDENT
Before
THE HONOURABLE RS JUSTICE SLADE DBE (SITTING ALONE)Date 29 June 2012
[1]APPEARANCES For the Appellant MR TOM BROWN (of Counsel) Instructed by: Royal College of Nursing 236 Gray's Inn Road London WC1X 8HL For the Respondent MISS NADIA MOTRAGHI (of Counsel) Instructed by: Capsticks Solicitors LLP 1 St George's Road Wimbledon London SW19 4DR SUMMARY DISABILITY DISCRIMINATION – Reasonable adjustments JURISDICTIONAL POINTS Claim in time and effective date of termination Extension of time: just and equitable The Employment Judge erred in deciding, without making necessary findings of fact, that the Respondent's obligations to make reasonable adjustments for the Claimant, who was alleged to be a disabled person, came to an end when he went on sick leave. The evidence before the Employment Judge on which she made her decision suggested that she erred in failing to make findings of fact about the nature of any adjustments required and whether the Claimant would have been able to remain or return to work if such adjustments had been made. Such findings were necessary to determine whether the complaints of failure to make reasonable adjustments were made in time and if not, whether it was just and equitable to extend time. These issues were to be determined at a full hearing of the Claimant's claims some of which were in any event presented in time. NCH Scotland v Ms P McHugh UKEATS/0010/06/MT distinguished. Hendricks v Commissioner of Police of the Metropolis [2003] IRLR 96 and Matusowicz v Kingston upon Hull City Council [2009] EWCA Civ 22 applied. Observations on the difficulty of determining without hearing all the relevant evidence the date upon which it is to be inferred that an employer decided on an omission such that time starts to run for the purpose of presenting a complaint of failure to make reasonable adjustments. THE HONOURABLE MRS JUSTICE SLADE DBE Mr Olenloa appeals from the judgment of an Employment Judge ('EJ') on a Pre-Hearing Review ('PHR') sent to the parties on 11 August 2011. The Claimant had presented a claim to the Employment Tribunal ('ET') on 28 January 2011 ('the First claim') alleging that he was a disabled person and that the Respondent had failed in their duty to make reasonable adjustments for him as required by the Disability Discrimination Act 1995 ('DDA'). He also alleged that he had suffered a detriment by reason of making a protected disclosure. At a PHR on 6 June 2011 the Claimant was given permission to amend his ET1 which he did on that date ('the Second ET1'). The Claimant lodged a third ET1 on 22 July 2011 ('the Third ET1'). A PHR was listed to determine whether complaints about incidents before 29 September 2010 were out of time and, if so, whether time should be extended on just and equitable grounds. By the judgment under appeal, the EJ held that claims about those matters complained of in the first ET1 up to 28 September 2010, the last day the Claimant was at work before going on sick leave, were presented out of time and that it was not just and equitable to extend time to enable those claims to be heard. There is no appeal from the decision of the EJ that the protected disclosure complaint was presented out of time.[2]In this judgment the parties will be referred to as Claimant and Respondent as before the EJ. As the alleged omissions of which complaint was made were alleged to have started before but continued after 1 October 2010 the acts were alleged to be unlawful under both the DDA and the Equality Act 2010 (the 'EA'). Pursuant to Article 7 of the Equality Act 2012 (Commencement No 4, Savings, Consequential, Transitional, Transitory and Incidental Provisions and Revocation) Order 2010 statutory references will be to the EA. The relevant provisions in each Act are materially indistinguishable. References to paragraph numbers will be to the judgment of the EJ unless otherwise indicated.[3]The Claimant was a Band 6 Clinical Team Leader nurse in the Respondent's Stroke Unit at Northwick Park Hospital. He had been on sick leave since 29 September 2010.[4]The basis of the claims made in the ET1 presented on 28 January 2011 was the same as the complaints made by the Claimant in a grievance submitted to the Respondent on 29 October 2010 under their grievance procedure. In his First ET1 the Claimant stated that he was a disabled person as he suffered from an 'Adjustment Disorder with mixed anxiety and depressive reaction'. He alleged:
"Notwithstanding the Trust is fully aware of my condition, I believe I have been unlawfully discriminated against by the Trust because of its ongoing failure to make reasonable adjustments to accommodate my condition to enable me to attend work and meet the duties of my job description. The Trust has applied the following provisions, criteria and practices which have placed me at a substantial disadvantage as a disabled person:- a) my job description and duties; b) the staffing levels on the Stroke Unit; I have suffered a detriment as a result of the application of those provisions, criteria and practices in that my condition has been exacerbated and I have been certified unfit to attend work. I believe the Trust has failed to make the following adjustments:- a) failed to provide ongoing support following the transfer of my employment to the Trust on the 1 st April 2008; b) failed to ensure adequate staffing levels within the Stroke Unit; c) failed to monitor my mental health by discussing it with me and my workload on a regular basis in order to anticipate/identify/forestall/manage my mental health problems and/or help manage my workload; d) failed to provide me with a mentor I could seek assistance from; e) failed to provide me with counselling or any other therapeutic assistance; f) failed to reallocate some of my duties to other employees; g) failed to redeploy me or offer me the opportunity to take a sabbatical when it was apparent that I was beginning to show significant signs of stress again; h) failed to protect me from disability related harassment."
[5]The amendments to the First ET1 by the Second ET1 included the following:
"14. My first grievance highlighted the history of the Trust's ongoing failure to make reasonable adjustments within my work place to accommodate my condition as set out above. I also identified the provisions, criteria and practices that had placed me as a disabled person at a substantial disadvantage within the workplace, and I identified the adjustments that I believed the Trust had failed to make. I also identified 5 points that I believed would have enabled me to return to work, including redeployment away from Haldane Ward. … 16. I was reviewed by Occupational Health on the 28 th January 2011 and Dr Kehoe came to the following conclusions: 'a successful return to work in his own role is not likely until the grievance process has been completed… however he is well enough to return to work temporarily in a different role providing it is compatible with his training and experience'. I accepted Dr Kehoe's advice. 17. I attended a sickness review meeting on the 24 th February 2011, and I confirmed that I felt I would be able to return to work if I was redeployed whilst my grievance was being investigated as was agreed by Dr Kehoe. 18. On the 3 rd March 2011 I received a letter from Jonathan Davies (Matron Care of the Elderly), informing me that he could find no suitable redeployment placements and I was expected to return to Haldane Ward when my sick note expired on the 14 th March 2011. This was contrary to the adjustments I had previously outlined in my first grievance and as set out above."
[6]On 30 March 2011 the Claimant received the report giving the outcome of his grievance investigation. He stated in his Second ET1 that he considered that the Respondent had failed to address his overarching concerns in relation to the Trust's failure to make reasonable adjustments to accommodate his disability. Relevant Statutory Provisions[7]Disability Discrimination Act 1995 "Section 4A(1)(a) [4A Employers: duty to make adjustments (1) Where– (a) a provision, criterion or practice applied by or on behalf of an employer, or(b) ….. 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. Schedule 3 Part I 3(1) (1) An employment tribunal shall not consider a complaint under section 8 unless it is presented before the end of the period of three months beginning when the act complained of was done.E+W+S+N.I. (2)A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. (3) For the purposes of sub-paragraph (1)— (a) …. (b)any act extending over a period shall be treated as done at the end of that period; and (c)a deliberate omission shall be treated as done when the person in question decided upon it. (4) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission— (a) when he does an act inconsistent with doing the omitted act; or (b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done." Equality Act 2010 "Section 20(3) … where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. Section 123 (1) …. Proceedings on a complaint within section 120 may not be brought after the end of- (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section- (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something- (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it." The Judgment of the Employment Judge[8]In considering whether complaints about events before 29 September 2010 were presented out of time the EJ recorded that the claims in the First ET1 were based on the complaint which was made in the grievance of October 2010. In paragraph 12 of her judgment the EJ held that 'the Second claim form' (the amendment to the First claim form):
"…raised issues about matters that had happened since the presentation of the first grievance, particularly complaining about delays, the failure to redeploy the claimant, the failure to grant a temporary injury allowance and a general failure to investigate the grievance."
[9]In paragraph 16 the EJ stated that she appreciated "…that it is often better for the Tribunal which hears the whole case to decide the time points where matters are apparently intricately interlinked. However, I accept that this is a case where I can determine it on the facts before me at this PHR. The majority of the salient facts must come from the Claimant and he gave evidence before me. Whilst I accept that I have had no evidence from the respondent, the matters complained about are abundantly clear from the claimant's grievance, his Claim Forms and his witness statement."[10]In paragraph 16, the EJ held that the complaints the Claimant made in his First ET1 were complaints against those line managers whose responsibility it was to allocate shifts, decide numbers of staff at work 'and so on'.[11]The EJ held that the complaints in the Second ET1 relate to matters since the first grievance. The EJ held at paragraph 17:
"There is no ongoing discrimination or failure to make reasonable adjustments that I can see, as the claimant simply is unable to be at work. … It seems to me therefore that if the claimant is a person with a disability, the duty [to make reasonable adjustments] may have arisen on his transfer to them [the Respondent] in April 2008. However, what failures to make reasonable adjustments might flow from that knowledge is very difficult to say. In any event, the claimant's concerns about treatment of him and failures are essentially those relating to his line managers and, as I have said, this must stop when he goes on extended sick-leave. I do not accept that the matters that he complains of then and later are a part of an act extending over a period."
[12]As to whether it would be just and equitable to extend time for presentation of the complaints the EJ observed that the First ET1 was presented a little over a month out of time. She held that the Claimant was aware of the time limit in December 2010 when the ET1 might have been presented in time. Although he was on sick leave, the Claimant had been able to prepare a detailed grievance, a large part of which was copied into the Claim Form. The EJ held at paragraph 18 that:
"putting in a claim within the time limit would have been a relatively easy thing to do."
The EJ was not satisfied that this was one of the exceptional cases where time should be extended. The EJ held that:
"Those matters that the claimant complains about before 28 th September 2010 have been presented out of time. What can proceed are those matters which he put in the second claim which has now become an amendment to the first claim and, it would seem, the third claim. These are matters which post-date him submitting the grievance in October 2010."
The EJ held:
"1. Those matters complained of in the original Claim Form up to the 28 September 2010 are out of time and it is not just and equitable to extend time to proceed with those claims under the Disability Discrimination Act 1995/Equality Act 2010."
The Submissions of the Parties[13]Mr Brown, counsel for the Claimant, submitted that the EJ erred in deciding whether or not there had been an act extending over a period after 28 September 2010 without considering all the evidence. This should have been done at a full merits hearing. The EJ heard evidence only from the Claimant. In light of the EJ's inability to identify actual or assumed facts from which to decide whether the Claimant's complaints were presented in time, it was an error of law not to defer consideration of time limit issues until all the evidence had been heard.[14]Mr Brown referred to the judgment of Mummery LJ in Arthur v London Eastern Railway Ltd [2010] ICR 193 at page 199H followed in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 paragraph 11, in which he held that the ET erred in law in that case in determining the time limit point solely on the basis of legal argument and without hearing any evidence or making any findings of fact. Whilst the EJ made a brief reference to Arthur in paragraph 14, Mr Brown contended that she did not apply the ratio of the judgment.[15]Mr Brown contended that in order to determine the limitation issue, the EJ should have but failed to make findings of fact about when the Respondent came under a duty to make reasonable adjustments for the Claimant and when they failed to do so. If the Respondent had omitted to make such adjustments it was necessary to decide when the period within which they might reasonably have been expected to make such adjustments expired. The importance of making such findings was explained in Kingston upon Hull City Council v Matuszowicz [2009] ICR 1170 .[16]Mr Brown contended that in failing to decide the period within which the adjustments should reasonably have been made, the EJ failed to decide whether the failure to make adjustments extended into the Claimant's period of sickness absence. The EJ failed to have regard to the point made in paragraph 81 of the Claimant's statement that he wanted the Respondent to address the issues he had raised in his grievance of 29 October 2010. He believed that to do so would enable him to return to work. The Claimant had also referred in paragraph 82 of his statement to the opinion of the occupational health doctor, Dr Keogh on 15 November 2010 that a successful return to work would not be likely until the grievance process had been completed. However her view was that the Claimant was well enough to work temporarily in a different role.[17]Mr Brown drew attention to the judgment of Mummery LJ in Commissioner of the Metropolis v Hendricks [2003] ICR 530 in which he held at paragraph 48 that the fact that Ms Hendricks "was off sick from March 1999 and was absent from the working environment does not necessarily rule out the possibility of continuing discrimination against her…" Mr Brown contended that the observation in paragraph 44 of NCH Scotland v Ms McHugh UKEATS/0010/06/MT that: "while [the Claimant] is incapable of all work, it does seem pointless to impose a duty on an employer to make adjustments in case she can return, unless there is some reasonable prospect of that occurring" is to be distinguished from the Claimant's case. He had set out specific adjustments which he believed would enable him to return to work. Further, the occupational health physician, Dr Keogh, had concluded that there could be a successful return to work when the grievance process had been completed. There was no basis on which it could be concluded that the Respondent's obligation to make reasonable adjustments ceased when the Claimant went on sick leave.[18]It was submitted that the EJ failed to appreciate that the Claimant was complaining of an ongoing failure to address his complaints which were the subject of his October grievance. Mr Brown contended that the EJ failed properly to consider whether the discrimination of which complaint was made was an act extending over a period. Although the EJ referred to Lyfar , she failed to ask herself whether the Claimant's complaints were capable of being part of an act extending over a period.[19]Secondly, Mr Brown submitted that the EJ erred in failing to consider whether to extend time for presentation of the ET1. The EJ failed to make a finding of fact as to when the acts complained of had taken place so that the date on which the primary time limit for presentation of a complaint could be identified. In the absence of such a finding, the EJ could not properly consider the length of the delay in presenting the complaint, which was a relevant consideration in deciding whether it was just and equitable to extend time. Mr Brown submitted that the identification of 28 September 2010 as the date from which time ran was arbitrary. The date on which the Claimant had begun sick leave bore no cogent relationship to the date or dates on which the Respondent's alleged duty to make adjustments first fell to be treated as a deliberate omission from which time began to run. On the alleged facts there was no reason why a duty could not continue after the Claimant's sick leave began, especially since his complaint was that it was the Respondent's failures which were affecting his ability to work.[20]Third, Mr Brown submitted that the EJ failed properly to direct herself in considering whether the alleged act of disability discrimination against the Claimant, the failure to make reasonable adjustments, extended over a period within the meaning of the EA section 123(3)(a). The EJ should have considered as material the behaviour of the Respondent not that of the Claimant. The EJ failed to make any findings of fact as to what obligations to make reasonable adjustments flowed from the Respondent's knowledge of the Claimant's disability and the date by which such adjustments should have been made. The EJ erroneously concluded that 28 September 2010 constituted a watershed after which the Respondent ceased to be under a duty to make such adjustments.[21]Miss Motraghi for the Respondent contended that the EJ did not err in determining, without hearing evidence from the Respondent, the issue of whether the Claimant's complaint was presented in time. Arthur was distinguishable as in that case no evidence had been heard. In this case the Claimant had given evidence. It was submitted that the EJ did not err in concluding from the Claimant's ET1s that:
"17. Those matters which he raises in the Second Claim Form which became an amendment to the First Claim Form and, as I understand it, are raised in his Third Claim Form are all matters which clearly relate to matters since his first grievance. They are not connected to those matters he raises earlier."
In light of the substance of the complaints made in the Second and Third ET1s: possible redeployment, delays in the grievance process, refusal to pay temporary injury allowance and matters in relation to statutory sick pay, Miss Motraghi submitted that the EJ did not err in so concluding. The EJ held that the complaints raised in the Second and Third ET1 were presented in time.[22]It was submitted that the Claimant's case in materially indistinguishable from McHugh . At various points in time medical opinion was more or less optimistic about his return to work. No date for return was given. Miss Motraghi submitted that the EJ did not err in concluding that the Respondent was under no duty to make reasonable adjustments once the Claimant had gone on sick leave. Adjustments would not have alleviated his inability to be at work. Miss Motraghi referred to paragraph 43 in McHugh in which the EAT, after referring to the judgment of Ouseley J in Home Office v Collins [2005] EWCA 598, held:
"The proposition, which we accept, is that if an adjustment is not going to cure or limit the substantial disadvantage in which the disabled person is placed, it cannot be reasonable under the terms of the Act to make it."
In this regard Miss Motraghi referred to the evidence the Claimant gave of the opinion of Dr Keogh that he would not return to work until his grievance had been resolved. He had not been given a date for his return to work. There was therefore no date when adjustments would have made a difference to the Claimant's ability to work.[23]Miss Motraghi pointed out that the date on which, in accordance with EA section 123(4)(b) a person is to be taken as having decided upon an act is a notional date. It is when the period expires within which the Respondent might reasonably have been expected to do the omitted acts, here make reasonable adjustments if they are to be done. The EJ did not err in holding that the notional date was the last day before the Claimant went on sick leave. Sedley LJ in Matuszowicz at paragraph 35 made clear that the onus is "on the claimant to decide when something should have been done about the omission and to bring his or her claim within three months of that date."[24]As for whether the EJ erred in failing to decide that it was just and equitable to extend time for presentation of the First ET1, Miss Motraghi pointed out that the Claimant did not blame the delay in presentation of his complaint on wrong advice given by his solicitors. This was not in his ET1, his statement nor was this reason for delay advanced before the EJ and could not be a reason for the delay.[25]As for the contention that the EJ failed to make findings of fact necessary for the determination of whether it was just and equitable to extend time, Miss Motraghi contended that the EJ did not err in failing to make such findings. It was assumed that the Claimant was disabled. There was no need for findings about the nature of his disability, the provision criterion or practice which was alleged to put him at a disadvantage, what adjustments, if any, would have been reasonable for the Respondent to make and when it would have been reasonable to conclude that the Respondent would have made the adjustments alleged to be reasonable if they were to be done as the EJ had concluded that any requirement on the Respondent to make reasonable adjustments came to an end on 29 September 2010 when the Claimant went on sick leave. Discussion and Conclusion[26]The conclusion of the EJ in paragraph 17 that: "There is no ongoing discrimination or failure to make reasonable adjustments that I can see as the claimant simply is unable to be at work" is central to the determination of this appeal. If there were no error in reaching this conclusion, as Miss Motraghi submitted, there would have been no need for the EJ to make findings of fact on what Miss Motraghi described as the 'intervening steps' including what adjustments the Respondent should have made and when it would have been reasonable to conclude that the Respondent was to be taken as deciding against them.[27]The EJ stated that the matters complained of by the Claimant in his ET1s were 'abundantly clear from the Claimant's grievance, his Claim Forms and his witness statement'. The Claimant's complaint in his First ET1 was that the Respondent had failed in their duty to him as a disabled person to make the adjustments set out in his grievance of 29 October 2010. In his First ET1 he stated of the adjustments:
"If the Trust had taken the above steps then I do not believe I would have suffered the latest relapse in my condition and I would not have been certified as unfit to attend work from the 28 th September 2010 to date."
In paragraph 81 of his statement, the Claimant wrote of those adjustments he had requested in his grievance of 29 October 2010 which were set out in his ET1:
"I believed each of those adjustments would enable me to accommodate my condition within the workplace."
The Claimant also referred to the opinion of Dr Kehoe that a successful return to work would not be likely until the grievance process had been completed. The EJ observed that when the First ET1 was presented in January 2011:
"It appears that there was little progress on that grievance."
[28]It was the Claimant's case on his First ET1 and explained in his statement that the Respondent's failure to make the reasonable adjustments referred to in his First ET1 and in his statement caused him to be unable to be at work. He believed that if adjustments were made he would have been able to return to work.[29]The EJ did not state whether she accepted or rejected the Claimant's assertions that if the requested adjustments were made he could have returned to work. The Claimant was asserting a continuing omission by the Respondent to make reasonable adjustments. I accept the submission by Mr Brown that it was material to the issue of whether the claims were presented in time to determine whether it was the very failure to make adjustments which kept the Claimant away from work.[30]On the evidence before the EJ, the Claimant was alleging an omission by the Respondent to make reasonable adjustments which continued after he went on sick leave on 29 September 2010. His case was distinguishable from that considered in Home Office v Collins [2005] EWCA 598 in which Mr Collins 'could not return to work at all' or in McHugh in which the EAT recorded at paragraph 40 that:
"…at all relevant times, the Claimant was presenting no willingness or ability to return to work, nor was that the medical evidence."
In such cases it can be said that it would not be reasonable to require adjustments as they would not achieve any purpose. On the material before the EJ the same could not be said in this case. In my judgment the EJ erred in concluding, without finding as a fact that he would not have remained or returned to work even if such adjustments had been made, that the Respondent ceased to be under an obligation to make reasonable adjustments for the Claimant when he went on sick leave. This error undermines the basis of the EJ's conclusion that the claims in the ET1s which were of acts or omissions before 29 September 2010 were presented out of time.[31]The error of deciding without making the necessary findings of fact that time for presentation of the complaints to an ET ran from the date the Claimant went on sick leave also undermines the decision of the EJ that it was not just and equitable to extend time for presentation of the complaints. The length of delay in presentation of the complaint is material to the exercise of discretion whether to extend time.[32]This appeal illustrates the difficulty of determining without considering all the relevant evidence and making necessary findings of fact what Lloyd LJ in Matuszowicz described as 'in one sense an artificial date' of when an employer is to be treated as having failed to comply with a duty to make reasonable adjustments for the purpose deciding when time starts to run for the purposes of EA section 123(4)(b). Whether that is done as part of the full hearing or at a PHR is a case management decision to be taken by the Employment Judge having regard to the particular circumstances of the case. Disposal[33]Since the necessary findings of fact have not been made, this Employment Appeal Tribunal cannot reach any conclusions as to whether the Claimant's complaints were presented in time.[34]The appeal is allowed and the orders of the Employment Judge that the matters complained of up to 28 September 2010 in the ET1 lodged on 28 January 2011 are out of time and that it is not just and equitable to extend time to proceed with those claims are set aside. The issue of whether and if so which of the Claimant's complaints in the ET1 of 28 January 2011 were presented in time and if not whether it is just and equitable to extend time is to be considered at the full merits hearing of the Claimant's claims.

Cited in 1 later judgment