Foster V Cardiff University (Disability Discrimination : Reasonable adjustments) [2013] UKEAT 0422_12_2703

EAT
Foster V Cardiff University (Disability Discrimination : Reasonable adjustments)
[2013] UKEAT 0422_12_2703 · 2013-03-27
[1]The Claimant appeals against the decision of the Employment Tribunal sitting at Cardiff, which was sent to the parties on 2 May 2012. For convenience we will refer to the parties as they were below, as the Claimant and the Respondent.[2]The Claimant is an academic at the Respondent university. The core of her complaints before the Employment Tribunal related to the teaching allocation for the 2010-11 academic year. The Claimant continues to be employed by the Respondent.[3]By its unanimous decision the Employment Tribunal dismissed the Claimant’s complaints of disability discrimination and harassment. Factual background[4]The Claimant commenced work for the Respondent on 1 September 2000. Since August 2007 she has been a senior lecturer in the Human Resource Management (HRM) section of Cardiff Business School, which is known as CARBS.[5]The Claimant is a disabled person within the meaning of section 6(1) of the Equality Act 2010 , and in so far as relevant, section 1(1) of the Disability Discrimination Act 1995 , the predecessor to the present Act. The Claimant’s disability is Chronic Fatigue Syndrome (CFS). The Employment Tribunal found at paragraph 8.1 that this is generally manifested as persistent exhaustion (see also paragraph 11).[6]Many, although by no means all, of the Claimant’s complaints in this case concerned academic workloads. As the Tribunal explained at paragraph 23, an academic’s workload can broadly be divided into three areas: teaching, research and administration. Teaching itself can be further sub-divided into various activities: the delivery of lectures; tutorial or syndicate groups; supervision of undergraduate and postgraduate students; marking course work; and marking examination papers. Of these duties the Claimant found face-to-face teaching (delivery of lectures and holding tutorial/syndicate groups) the most tiring, while she found supervision easier to accommodate.[7]In distributing the academic workload, in particular teaching, fairly among the academic staff, the Respondent had devised what became known as the “Marriott formula”, which was used from the mid 1990s. The Tribunal described the formula from paragraph 27 of its judgment. In essence it involved allocating to each academic member of staff a set number of points (called “Marriott points”) for different teaching activities. The points did not correspond to hours of work done. It accounted for the relative deemed demands of different activities rather than the precise number of hours that they take to complete: see paragraph 30 of the judgment. In addition, different teaching activities are weighted on the basis that they are notionally more time consuming. An example would be that it is assumed that it takes twice as long to prepare a one hour lecture that it does to prepare a one hour tutorial: see paragraph 29.[8]At paragraph 34 the Tribunal found as a fact that the number of points an academic is allocated under the formula are not used in promotion or performance management processes. Rather the formula is a management tool for allocating workloads and is not a key indicator of an academic’s performance.[9]At paragraph 44 the Tribunal noted that the HRM section recorded the points allocated to each academic at the start of an academic year but did not measure or record the number of points allocated if each activity were to be examined retrospectively at the end of that year. So, for example, the Marriott formula was not adjusted to incorporate absence through sickness.[10]After the Claimant commenced her employment in September 2000 she was off sick for the better part of the next two years. In the context of the Claimant’s proposed phased return to work in 2002, the Respondent referred her to an occupational health physician. In a report dated November 2001, he wrote that the Claimant had “most likely suffered with a significant post-viral state which has had a fairly devastating effect on her life”, which was “certainly sufficient to warrant protection under the Disability Discrimination Act 1995 .” He recommended a rehabilitation process and mentioned the importance of substantial adjustments that “should only be for a temporary period and not permanent.” The Claimant returned to work part-time in August and full-time in October 2002.[11]In January 2004 the Respondent again referred the Claimant to its occupational health service. She was diagnosed with a combination of hypothyroidism, vitamin B12 deficiency, iron deficiency and probable gluten intolerance. It was noted that she had reduced her lecturing load and increased the tutorial and marking elements of her role. It was advised that the Claimant needed very careful planning of her workload and should not be exposed to sudden bursts in work activity and should avoid short term deadlines. It was also observed that such adjustments need only be temporary. It was thought that in the long term the Claimant would be able to fulfil her original job description and eventually would attain normal efficiency and attendance in the workplace.[12]The Claimant was then able to work for the next seven years or so with a flexible and informal approach being taken to the issue of workplace adjustments.[13]Some emphasis was placed before the Employment Tribunal on a document which became known as “the 2007 memo.” This arose from a meeting which the claimant had with Professor Morris (head of the HRM section) and Professor McNabb (Dean of CARBS) in September 2007. The Claimant wrote a document to record the adjustments which she required. At paragraph 65 of its judgment the Tribunal concluded that, if the 2007 memo embodied an agreement to do anything, it was to consult with the Claimant. At paragraph 67 the Tribunal took the view that the Respondent’s reading of the document was more accurate than the Claimant’s: namely that it could be changed and adapted so long as there was advance consultation with the Claimant and the essential nature of the adjustment – a different balance of duties that facilitated an ability to plan and pace work – remained in place.[14]On 1 October 2009 Professor Morris was replaced as head of the HRM section by Professor Turnbull. The Tribunal was of the view that Professor Turnbull had a more robust approach and style: see paragraph 78 of its judgment. Eventually, as the Tribunal observed in its judgment from paragraph 94, Professor Turnbull and the Claimant fell out.[15]By April 2010 the Claimant began to get anxious about the teaching allocation which was to be devised for the academic year 2010-11. The Respondent’s wish was to see an increase in the number of Marriott points allocated generally among academic staff, so that the target should become 350 points (plus or minus 10 per cent). The Claimant had for several years been allocated fewer points than the average.[16]On 1 August 2010 Professor Boyne replaced Professor McNabb as Dean of CARBS.[17]On 3 August 2010 the Claimant went off sick until 20 October 2010.[18]On 20 August 2010 the proposed teaching allocation was distributed: the Claimant was allocated 331.82 Marriott points. Although this represented an increase for the Claimant, it was the third lowest allocation in the department and she was one of seven academics (out of a total of 37) to have fewer Marriott points than the target of 350.[19]On 7 October 2010 there was what the Tribunal described as an important meeting between Professor Boyne, Professor Davies and Karen Jones (on behalf of the Respondent) with the claimant and Katya Hosking, her trade union representative. At paragraph 121 of its judgment the Tribunal found as a fact that the Claimant expressed unwillingness at this meeting to see an occupational health physician. However, the Tribunal was of the view that the meeting on 7 October resulted in progress in a number of areas: see paragraph 122.[20]After the Claimant’s return to work on 20 October 2010, there should, in accordance with the Respondent’s policy, have been a return to work meeting within 48 hours. In fact this did not happen until 8 November 2010, when the Claimant had a meeting with Professor Heery.[21]On 1 November 2010 Professors Boyne and Heery conducted a review meeting about the Claimant with Karen Jones and Elaine Howell.[22]On 15 November 2010 there was a meeting between the Claimant and her mentor, Professor Davies. The Claimant and Professor Davies had starkly different accounts of that meeting: see paragraph 130 of the judgment.[23]On 19 November 2010 a meeting took place between the Claimant and Ms Hosking and (for the Respondent) Professor Boyne, Professor Davies, Ms Jones, Ms Howell and Sarah Pope from occupational health. By this time the proposed allocation for the Claimant had been reduced to 314 Marriott points to account for the Claimant’s time off sick. Subsequently, on 29 November, Professor Heery produced a revised proposal, under which the Claimant would be allocated 306.93 points (which the Tribunal rounded up to 307 at paragraph 141 of its judgment).[24]On 2 December 2010 the Claimant’s GP signed her off sick for a period of 2 months, later amended until at least 1 April 2011. In fact the Claimant did not return to work after that point: see paragraph 146 of the judgment.[25]On 14 January 2011 the Claimant submitted a written statement of grievance to Doctor David Grant, the Vice-Chancellor at the Respondent University. He met the Claimant on 27 July 2011 and, on 4 August, rejected her grievance. Her appeal against that was delayed pending the outcome of the Tribunal litigation. The proceedings before the Employment Tribunal[26]There was a large number of issues which the Employment Tribunal was called upon to address. The Tribunal summarised these issues at paragraphs 10-13 of its judgment. As the Tribunal noted at paragraph 10, the Claimant’s case was principally one that alleged breach of the duty to make reasonable adjustments. It was common ground, as the Tribunal noted at paragraph 12, that the Respondent did in fact make numerous adjustments around the timing and pacing of the Claimant’s work. However, the issue for the Tribunal was whether the Respondent had done enough to comply with its duty of reasonable adjustments.[27]In addition the Claimant made claims under the headings of disability discrimination and also indirect disability discrimination: see paragraph 13.[28]The hearing before the Tribunal was listed for 10 days, spread out over three weeks in order to accommodate the Claimant and enable her to play a full part in the proceedings. After the hearing the members of the Tribunal met for a total of six days in chambers to reach and prepare their decision. They considered that the case was an unusually document-heavy one: there was a two volume bundle for the hearing which reached about 1,000 pages. The Tribunal also had to consider the oral evidence of a large number of witnesses on behalf of both the Claimant and the Respondent. The Tribunal’s judgment runs to 65 pages in 243 paragraphs. The summary of the relevant law alone took about 11 pages from paragraphs 154 to 199 of the judgment. It took the members of the Tribunal about seven months to complete their judgment.[29]As the Tribunal concluded at paragraph 243, all the Claimant’s complaints of disability discrimination failed. Material legislation[30]The Employment Tribunal took the view that, since the case straddled the date of 1 October 2010, when the Equality Act 2010 came into force, it was that Act that was relevant. In any event, it was not suggested before us that there is any material difference, for the purposes of the present appeal, between that Act and its predecessor, the Disability Discrimination Act 1995 .[31]Section 6 of the Equality Act defines disability in the following way. “(1) A person (P) has a disability if – (a) P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal-to-day activities.”[32]Section 3 deals with direct discrimination and provides in subsection (1) that a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Disability is a protected characteristic.[33]In addition section 15 deals specifically with discrimination arising from disability, which does not require a comparison to be made with someone who is not disabled. It provides that a person discriminates against a disabled person if A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. This is a new provision and did not have an equivalent in the 1995 Act.[34]Section 20 creates a duty to make reasonable adjustments. Section 21(2) makes it clear that A discriminates against a disabled person if A fails to comply with the duty to make reasonable adjustments in relation to that person.[35]The duty to make reasonable adjustments, as set out in section 20, comprises three requirements. The first, which is the only one relevant to the present case, is a requirement, 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.[36]As we have said, the predecessor provisions were to be found in the Disability Discrimination Act 1995 . The 1995 Act was amended in 2003 by secondary legislation and again in 2005 by primary legislation. The 2003 amendments were made under section 2 of the European Communities Act 1972 in order to give effect to the obligations placed upon the United Kingdom by Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation (“the Directive”). We will return to the Directive in more detail later.[37]Section 40 of the Equality Act 2010 prohibits harassment in the context of employment. The Claimant’s grounds of appeal[38]The Claimant originally advanced seven grounds of appeal, as set out in her Grounds of Appeal and in her skeleton argument. However, at the hearing before this Tribunal, the Claimant did not pursue Grounds 3 or 4 or the second part of Ground 6. We will say no more about those. The other grounds were all pursued at the hearing but we propose to address them in a slightly different order, since we take the view that Ground 1 and the first part of Ground 6 are the most significant, as they each clearly raise a point of law. We will then turn to Grounds 2, 5 and 7, which all, to varying degrees, made criticisms of the way in which the Employment Tribunal approached particular aspects of the facts of this lengthy case. The Claimant’s Ground 1: the meaning of disability[39]The Claimant submits that the Employment Tribunal erred in law in its approach to what her disability in this case was. Although it was common ground that the Claimant had a disability, and that in general terms it could be classified as being CFS, it is submitted on her behalf that the Tribunal failed to refer to any of the medical evidence as to the wider health problems from which she tended to suffer. This evidence included the following: a letter from the Claimant’s GP, Dr Brunyate, dated 14 May 2003; a statement of fitness for work or “fit note” dated 18 October 2010 from the Claimant’s GP, Dr Edgeworth; a letter from her GP, Dr Edgeworth, dated 9 September 2011; and a letter from Dr Llewellyn, an expert on CFS, dated 16 February 2011.[40]In particular, criticism is made of the Tribunal’s approach to the fact that the Claimant suffered from anxiety and stress, which (on the medical evidence) had the effect of triggering or exacerbating her CFS. It is submitted that the Tribunal misdirected itself in law, particularly at paragraph 64 of its judgment, where it said:
“... The disability in this case is CFS; the respondent was under a duty to take reasonable steps to remove the disadvantages that resulted from that condition, but was not under an additional duty to reduce the claimant’s levels of associated anxiety. No doubt one would feed into the other, such that an increase in stress and anxiety would trigger symptoms of exhaustion (as the claimant’s GP confirmed in a report …). But we have encountered many cases where a failure to comply with the duty to adjust in respect of a particular disability causes anxiety to an affected employee, just as other workplace problems might be stressful; but the duty to adjust would still relate to the particular disability and not to all workplace problems that might cause stress. Of course it would be different if the disability in question was an anxiety disorder.” (Emphasis in original)
[41]The Claimant submits that that passage discloses an error of law by the Tribunal because, in doing the comparison exercise, it wrongly left anxiety and stress out of account on the Claimant’s side of the comparison. Similar criticism was made on behalf of the Claimant of paragraphs 205, 233 and 238 of the judgment.[42]It is submitted that, on the broad and purposive approach which should be taken to the interpretation of discrimination legislation, these matters should have been taken into account on the Claimant’s side of the comparison and should not also have been attributed to the hypothetical comparator.[43]On behalf of the Claimant Ms Casserley reminded us that the Equality Act, in common with all discrimination legislation, should be construed in a broad and purposive way so as to give effect to its underlying social policy. In particular, in the context of disability discrimination legislation, she cited the recent decision of this Tribunal in Aderemi v London and South Eastern Railway Ltd [2013] Eq LR 198 , at paragraph 24, where Langstaff P said:
“… we consider that if any question of the scope of interpretation were to arise, we should give to this statute an interpretation which is in line with the intent behind it. The purpose of the Equality Act is to remedy perceived discrimination where it exists and to remove the scourge and evil of discrimination because of a protected characteristic so far as may be done. Where a broad definition such as that of disability is adopted, that requires that a broad approach should be taken to what lies within it. ..”
[44]We did not understand Mr Sheldon QC, who appeared for the Respondent, to quarrel with that approach to the interpretation of the discrimination legislation, which has a long pedigree, and that is the approach we adopt.[45]We do not consider that the Employment Tribunal erred in law as alleged. The Tribunal correctly directed itself that, in appropriate cases, anxiety and stress do properly need to be taken into account, where they go to the nature of the disability itself, for example if it is an anxiety disorder. There was no suggestion of that in the present case. It was common ground that the Claimant’s disability was CFS. The relevance of anxiety and stress was that they could act as a trigger for the CFS, in other words they went to its cause. Again the Tribunal was well aware of that, as the passage we have quoted from paragraph 64 itself makes clear. However, as Mr Sheldon submitted, the law does not require a tribunal to investigate the causes of a disability, only its effects.[46]Ms Casserley placed reliance on the decision of this Tribunal in Chief Constable of West Midlands v Gardner (UKEAT/0174/11/DA, judgment of 19 October 2011), which was a case under the Disability Discrimination Act 1995 . The claimant injured his knees, principally his right knee, whilst on operational duties. However, the parties were not specific about precisely what the disability was, save that it was accepted that the disability was “a knee condition.” That knee condition was not identified. In particular, at paragraph 8, Langstaff J said:
“The functional effects of it were not spelt out.”
[47]At paragraphs 10-11 Langstaff J continued:
“10. Disability is thus defined for the purposes of the Act by the effect which the physical impairment concerned has on the ability to carry out normal day-to-day activities. When considering the question of reasonable adjustments, the substantial and long-term adverse effect on ability to carry out normal day-to-day activities is likely to be central. Without understanding what the effect on normal day-to-day activities actually is, it can become impossible to know what adjustment is necessary or reasonable. 11. The facts of this case demonstrate … how important it is for a Tribunal when considering any case in which the effects of the disability may not be entirely obvious, and where there may be a dispute about the nature of an adjustment which it is reasonable to have to make in respect of the functional effects of that disability, to have a clear idea of that which it is of which the disability consists.”
[48]Applying those principles to the facts before it, this Tribunal concluded at paragraph 53 that the Employment Tribunal in that case had not set out what it was about the disability of the claimant which gave rise to the problems or effects which put him at the substantial disadvantage identified. This Tribunal went on to note that there may be many cases in which it is obvious what the nature of the substantial disadvantage is and why someone with the disability in question would inevitably suffer such disadvantage, for example a man who has one arm. But there are also cases in which simply to identify a disability as being a general condition – such as a “knee condition” – does not enable any party, and more particularly a court of review, to identify the process of reasoning which leads from that to the identification of a substantial disadvantage, and an adjustment which it is reasonable to have to make to avoid that disadvantage.[49]In our view, the authority of Gardner supports the Respondent’s submissions before us, not those of the Claimant. What this Tribunal was emphasising in that decision was that it will often be important to spell out clearly what the effects of a condition are rather than simply describing it by a particular label, such as a “knee condition.” In the present case the Employment Tribunal was well aware of the effects of CFS on the Claimant, in particular the difficulties it caused for her ability to cope with teaching. However, that is far from saying that the Tribunal was also called upon as a matter of law to investigate the causes of the Claimant’s CFS.[50]The Respondent’s submissions also derive support from relevant guidance on the meaning of disability which has been issued by the Equality and Human Rights Commission. Paragraph A6 of that guidance, so far as material, states that a disability can arise from a wide range of impairments, which can include impairments with fluctuating or recurring effects such as Chronic Fatigue Syndrome, which is expressly mentioned. Paragraph A8 of the guidance states that:
“It is not necessary to consider how impairment is caused, even if the cause is a consequence of a condition which is excluded. … What it is important to consider is the effect of impairment not its cause – provided that it is not an excluded condition.”
Later in the same paragraph the guidance states that:
“It is the effects of these impairments that need to be considered, rather than the underlying conditions themselves.”
[51]In our view, the Employment Tribunal’s judgment was consistent with both the guidance and earlier authority and was correct in law on this point. Accordingly, we reject the Claimant’s Ground 1. The Claimant’s Ground 6: the need for a comparator[52]The Claimant submits that the Employment Tribunal fell into error as a matter of law because it considered that, in a reasonable adjustments case, it was required to do a comparison exercise between her and a comparator (whether actual or hypothetical) who does not have the relevant disability: for example, at paragraph 184 of the judgment. The Claimant submits that this error tainted the Tribunal’s approach in two respects. First, and fundamentally, this led to the Tribunal wrongly approaching the issues before it, for example when it engaged in a comparison exercise at paragraph 64 of its judgment (cited above in the context of Ground 1). Secondly, the Claimant submits, it led the Tribunal to fall into a particular error when it dismissed many of her complaints (at paragraph 236 of its judgment). In that passage the Tribunal said:
“… Many [of the remaining thirteen alleged provisions, criteria or practices or PCPs] do not even qualify as PCPs capable of resulting in comparative disadvantage because they were applied exclusively to the claimant. On the evidence and facts, for example, there was no provision, criterion or practice of sending ‘large numbers of emails’ about teaching allocation (PCP4), no PCP of ‘requiring the claimant to communicate with Professor Turnbull after 2 August 2010’ (PCP5), no PCP of failing to hold return to work meetings within 48 hours (PCP8), no failure to implement the GP’s recommendations on a phased return to work (PCP9), no lack of communication between CARBS and its occupational health and human resources advisers (PCP10), no failure to revise the teaching allocation (PCP11), no PCP of taking an unreasonable amount of time to ‘consider grievances’ (PCP12) and no PCP of ‘not redesignating the claimant’s absence as disability-related absence’ (PCP13).”
[53]Before us Ms Casserley accepted that she could not maintain the complaint in relation to PCP5 but she did maintain the submission in relation to the other suggested PCPs outlined in that passage. It is clear from paragraph 237 of the judgment that there were some matters which the Employment Tribunal did consider to be properly categorised as PCPs (numbered 1, 2, 3, 6 and 7 before it) and proceeded to deal with each of them on the merits.[54]The Claimant acknowledges that her submissions face the difficulty that there is authority from this Tribunal which would appear to be against her on this ground of appeal.[55]On behalf of the Respondent Mr Sheldon relied on two authorities. First, he cited the recent decision of this Tribunal in Nottingham City Transport Ltd v Harvey [2013] Eq LR 4 as to the meaning of the term “provision, criterion or practice”. At paragraph 18 of the judgment Langstaff P said:
“…although those words are to be construed liberally, bearing in mind that the purpose of the statute is to eliminate discrimination against those who suffer from a disability, absent provision or criterion there still has to be something that can qualify as a practice. ‘Practice’ has something of the element of repetition about it. It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability. Indeed, if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator, and the comparator must be someone to whom in either reality or in theory the alleged practice would also apply. …”
[56]In words that are reminiscent of what the Employment Tribunal said in the present case, Langstaff P continued, at paragraph 19:
“…there was no evidence here that the employer made a practice of holding disciplinary hearings in a way that eliminated consideration of mitigation or in a way in which there was no reasonable investigation … it seems to us that there was no sufficient evidence to show that the application of the respondent’s disciplinary process in the case of the claimant was a provision, criterion or practice. It was something that represented unfair treatment of him, as the finding by the Tribunal in respect of unfair dismissal recognises, but not all unfair treatment involves a failure to adjust that which is a provision, criterion or practice.”
[57]The Respondent also reminded us of Royal Bank of Scotland v Ashton [2011] ICR 632 . That case concerned the 1995 Act. Nevertheless, there was no suggestion before us that the Equality Act 2010 is materially different in this context.[58]At paragraph 14 of this Tribunal’s judgment, Langstaff J said:
“A close focus upon the wording of sections 3A(2), 4A and 18B shows that an Employment Tribunal – in order to uphold a claim that there has been a breach of the duty to make reasonable adjustments and, thus, discrimination – must be satisfied that there is a provision, criterion or practice which has placed the disabled person concerned not simply at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled.”
[59]This Tribunal then cited, at paragraph 16, its earlier well-known judgment in Environment Agency v Rowan [2008] ICR 218 , at paragraph 27. Langstaff J added that:
“… For the purpose of the comparison the Tribunal must be able to identify the persons by reference to whom the provision, criterion or practice, either in its presence or its application, is said to place the disabled person concerned at a substantial disadvantage. Disadvantage is necessarily relative.”
[60]However, Ms Casserley submits that the domestic authorities in this field have not to date taken into account the effect of the Directive, in particular Article 5. She submits that the domestic legislation can, and therefore must, be interpreted in a way which does not require a comparison exercise to be done in a case where it is suggested that a duty to make reasonable adjustments arises. She does not submit that there is any incompatibility between domestic legislation and the Directive but she does submit that, in accordance with well-known principles of EU law, the domestic legislation must be interpreted, so far as possible, in a way which is compatible with the Directive. She therefore submits that we should not follow this Tribunal’s earlier decisions on the effect of domestic legislation, which require a comparator in the present context.[61]As Article 1 explains, the purpose of the Directive was to lay down a general framework for combating discrimination on various grounds, including disability, as regards employment and occupation, with a view to putting into effect in Member States the principle of equal treatment.[62]Article 2 of the Directive, so far as material, provides:
“1. For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1. 2. For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur when one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; (b) indirect discrimination shall be taken to occur when an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or (ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice. …”
[63]Article 5 of the Directive provides:
“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”
[64]Ms Casserley submits that nothing in Article 5 requires a comparison exercise to be done. Rather, she submits, that Article focuses simply on the question what are the appropriate measures which are “needed in a particular case.”[65]In our judgment, there is no incompatibility between domestic legislation as it has been interpreted by this Tribunal to date and the requirements of the Directive, in particular Article 5. As Mr Sheldon pointed out, the duty to make “reasonable accommodation” in Article 5 is expressly laid down in order to give effect to the principle of equal treatment (see the first sentence of Article 5). In order to understand the meaning of that principle, one has to go back to Article 2. It is clear from the language of Article 2 that both the concept of direct discrimination and the concept of indirect discrimination require a comparison exercise to be performed. What is particularly relevant in this context is the concept of indirect discrimination. This is where an apparently neutral provision, criterion or practice has the effect of placing a person with a particular disability at a particular disadvantage in comparison with persons who do not have that disability. Furthermore, the last part of Article 2(b)(ii) expressly cross-refers to the duty of reasonable accommodation in Article 5 and refers to its purpose as being to eliminate disadvantage entailed by “such provision, criterion or practice.” This is clearly a reference back to a relevant provision, criterion or practice as referred to earlier in Article 2(b), where the phrase is used in the context of a comparison with persons who do not have the relevant disability (hence the use of the phrase “compared with other persons”).[66]In our view, it is clear from a reading of the Directive as a whole, and having regard to its purpose, that the duty to make reasonable accommodation arises in order to meet the problem that an apparently neutral provision, criterion or practice may be applied to all persons and yet places a person with a relevant disability at a particular disadvantage. That necessarily involves an exercise in comparison between two persons: the person with that disability and another person (not necessarily an actual person since the comparator can be a hypothetical one) who does not have the relevant disability. Domestic legislation, as currently interpreted in the authorities to date, also requires there to be not merely a substantial disadvantage but a substantial disadvantage in comparison with a person who does not have the relevant disability. In our judgment, that is consistent with the requirements of the Directive and there is nothing incompatible between domestic legislation, so interpreted, and the Directive.[67]Accordingly, we reject the Claimant’s Ground 6 in so far as it has been pursued before us. The Claimant’s Ground 2: errors in misunderstanding uncontested material evidence[68]The formulation of Ground 2 in the Claimant’s skeleton argument was as follows:
“The ET failed to address its own findings of fact and the uncontested material evidence before it when applying the law on reasonable adjustments.”
There then followed a number of criticisms of the Employment Tribunal’s judgment. However, at the hearing before us, we understood the criticisms to come down in essence to two specific ones.[69]First, it is submitted that the Tribunal was wrong at paragraph 104 of its judgment, where it said of the Claimant:
“… as she wrote to Professor Turnbull on 2 August 2010, ‘I request that you recognise that I cannot physically undertake more than 315 points’ … This was the first time she had claimed that there was a limit on the number of points she could perform, but there was no medical basis for this assertion: her adjustments to date had been based on the timing and pacing of her work, not its quantity.”
[70]The Claimant submits that, in fact, there was medical evidence to support the assertion noted in that passage, namely the “fit note” of 18 October 2010. In our view, this criticism proceeds on a misunderstanding of what the Employment Tribunal was saying in the passage we have quoted. Paragraph 104 appears in the Tribunal’s summary of the main facts of the case before it, which are set out in a broadly chronological fashion. Its use of the phrase “to date” in the final sentence makes it clear that it had in mind events up to the letter of 2 August 2010. Once the passage is understood in that way, the Tribunal was perfectly correct to note that at that time there was no medical basis for the assertion being made. It does not follow that the Tribunal ignored or misunderstood the evidence which was before it, including the “fit note” of 18 October 2010. However, that does not assist the Claimant, as plainly that note was not in existence at the date of the letter of 2 August 2010.[71]The second criticism that is made under this ground is that the Employment Tribunal ignored the consequences of the fact that the Claimant was no longer to be allowed to make use of “alternative teaching provision” (ATP) to cover some of her teaching. For example, in the past she had sometimes used a PhD student to do this but the Respondent, in particular Professor Boyne, was of the view that this was no longer permissible, as it could have a detrimental impact on the Respondent’s reputation: see paragraph 123 of the judgment. The Claimant submits that the Tribunal wrongly became side-tracked by the issue of whether this was a “withdrawal” of an adjustment which had been previously granted, for example at paragraph 227. The Claimant submits that that was to miss the essential point: that, since ATP was no longer to be available to the Claimant, there would inevitably be a consequential increase in the amount of teaching that she would have to do herself and that this should have been taken into account in the making of reasonable adjustments, in particular in the calculation of the Marriott points to be allocated to her for the academic year 2010-11.[72]We do not accept this criticism of the Tribunal’s reasoning. The truth of the matter is that, despite the Respondent’s wish in general to increase the number of Marriott points to 350 per academic (with a margin of plus or minus of 10 per cent), the Claimant was eventually allocated 307 points for the academic year 2010-11. The Tribunal was well aware of the fact that the Claimant was no longer to be permitted to use ATP and indeed made reference to this more than once in its judgment. Nevertheless, having regard to all the evidence before it, the Tribunal came to the conclusion that the adjustments that the Respondent was prepared to make were reasonable: see paragraph 235.[73]Accordingly we reject the Claimant’s Ground 2. The Claimant’s Ground 5: failure to recognise what was agreed at the meeting of 19 November 2010[74]This ground is formulated as follows in the Claimant’s skeleton argument:
“The ET failed to recognise the importance of the meeting of the 19 th November 2010 where adjustments were agreed and the subsequent teaching allocation of the 29 th November which did not reflect those agreed adjustments.”
[75]In the skeleton argument a number of specific complaints were made under this general ground. However, at the hearing before us, it was our understanding that, when pressed, Ms Casserley’s submission focussed on the suggestion that the Tribunal ignored the evidence on one matter which it was said had been agreed at the meeting of 19 November 2010. She submitted that it was agreed that the number of Marriott points to be attributed to the Claimant’s supervision of PhD students was to be 120, whereas the proposal that was subsequently formulated by Professor Heery on 29 November 2010 reduced this number to 100 points.[76]On behalf of the Respondent Mr Sheldon accepted that this had indeed occurred as a matter of fact and that the Tribunal did not expressly deal with the point. Nevertheless, he submitted that this did not amount to an error of law by the Tribunal because the explanation for the reduction from 120 to 100 points was simply that, at the meeting, a mistake had been made. The mistake arose from the fact that it was not then appreciated that during the course of the academic year 2009-10 the Claimant had in fact ceased to be the supervisor of a certain PhD student. Accordingly, the allocation of a full 40 points in respect of supervision of that student would have been wrong and this was reduced to 20 to reflect the true position. So much was clear from the documentary evidence before the Tribunal.[77]We accept Mr Sheldon’s submissions in this regard. Accordingly, we reject Ground 5. The Claimant’s Ground 7: failure to find harassment at the meeting of 15 November 2010[78]This ground of appeal relates to a specific complaint that was made before the Employment Tribunal and dismissed by it. The Claimant alleged that she had been the victim of harassment within the meaning of the Equality Act by Professor Davies. This allegation arose from a meeting between Professor Davies and the Claimant on 15 November 2010.[79]The Employment Tribunal addressed this allegation at paragraphs 130-133 of its judgment. The Tribunal heard oral evidence from both the Claimant and Professor Davies and preferred the evidence of the latter witness. It explained the five reasons for this in some detail at paragraph 132 (although some of the sub-paragraphs have been wrongly numbered). At paragraph 133 the Tribunal went so far as to say that the Claimant had provided “an exaggerated and partly fabricated account of the meeting to bolster her claim.”[80]The Claimant submits that the Tribunal erred in law because it failed to refer to relevant evidence: namely the witness statement of Katya Hosking, at paragraph 30, as to what the Claimant told her “in tears” by telephone after the meeting on 15 November 2010, and an email which had been sent by the Claimant to Katya Hosking three days later.[81]We are doubtful that this can properly be regarded as an error of law, since it does not follow from the fact that not every piece of evidence is expressly referred to that it has not been taken into account: otherwise judgments of employment tribunals would have to be even longer than the one under appeal in this case. We also note that, in fact, the Tribunal did make reference to the Claimant’s email at paragraph 133.5 ( sic ), where it is referred to as the claimant’s “contemporaneous note.” The Tribunal observed that the Claimant had later added “embellishments” to her account, which had not featured in that note.[82]In any event, more fundamentally, the evidence of Katya Hosking was not direct evidence of what occurred at the meeting between the Claimant and Professor Davies on 15 November 2010. She was not present at that meeting and could only give hearsay evidence of what the Claimant had said to her. The fact that the Claimant made a complaint to Katya Hosking by email three days after the meeting could be said to add some support to the contention that her complaint was not a recent fabrication but it was still only hearsay evidence, whose source was the Claimant herself. The Tribunal had the opportunity to consider the oral evidence of both the Claimant and Professor Davies for itself. In those circumstances, it clearly did not think that the hearsay evidence of Katya Hosking added anything to the live evidence it had been able to assess for itself and which it rejected for all the reasons it set out at paragraph 132 of its judgment.[83]Accordingly, we reject the Claimant’s Ground 7. Conclusion[84]The Employment Tribunal had a difficult task to perform. It had a complicated case before it, with numerous issues to resolve, and a great deal of evidence to consider. In our view, the Tribunal rose to that task in a commendable way in a lengthy and careful judgment. Its judgment has been subjected to various criticisms in writing. In the end, many of those criticisms were not pursued at the hearing before us, rightly so, as they were in the main disagreements of fact on the merits rather than points of law. Of the grounds that have been pursued, none in the end has been made out.[85]For the reasons we have given this appeal is dismissed.