Makuchova v Guoman Hotel Management (UK) Ltd (Disability Discrimination: Reasonable adjustments) [2014] UKEAT 0279_14_1112

EAT

Makuchova v Guoman Hotel Management (UK) Ltd (Disability Discrimination: Reasonable adjustments)

[2014] UKEAT 0279_14_1112 · 2014-12-11

[15]“ The duty which rested on the council under section 6(1) is described in the side-note to section 6 as a duty to make adjustments. But it is not simply a duty to make adjustments. The making of adjustments is not an end in itself. The end is reached when the disabled person is no longer at a substantial disadvantage, in comparison with persons who are not disabled, by reason of any arrangements made by or on behalf of the employer or any physical features of premises which the employer occupies.” 27. As Lord Hope went on to state at paragraph 19 the performance of this duty may require the employer to treat a disabled person who is in this position more favourably in order to remove the disadvantage which is attributable to the disability. A disabled person can lawfully be transferred to a post which he is physically able to do without being at risk of dismissal due to her disability providing the taking of this step is a reasonable thing for the employer to do in all the circumstances. However, on the facts of that case, the Tribunal had simply not considered whether the policy requirement ought to have been adjusted in the applicant’s case to remove the disadvantage she faced because she was no longer able to do her job as a road sweeper (see paragraph 20). There are similar statements of principle in the opinions of the other members of the Appellate Committee. My attention was particularly drawn to the opinion of Lord Rodger of Earlsferry at paragraph 43 and also the opinion of Baroness Hale of Richmond at paragraph 65.28. Mr Grant also submits that the question of whether an adjustment is reasonable in all the circumstances is an objective one for the Tribunal itself to decide (see the decision of the Court of Appeal in Smith v Churchill Stairlifts plc

[2006] ICR 524

at paragraph 44 in the Judgment of Maurice Kay LJ). He submits that for the Employment Tribunal to adopt the employer’s proposed adjustments without consideration of the reasonableness of the Claimant’s suggested alternatives was more akin to applying a range of reasonable responses test, which is the test used in the law of unfair dismissal rather than an objective test for determination by the Tribunal itself. He submits that taking the approach the Employment Tribunal erred as a matter of law.

29. Further, Mr Grant submits that it was an error of law by the Tribunal to consider that the duty to redeploy or provide additional training or explore other alternative forms of employment was extinguished in circumstances where it was merely “possible” that the Claimant could have returned to her old role with adjustments. In that regard he has in mind, in particular, paragraph 55 of the Employment Tribunal’s Judgment where it stated that:

“… We thought that this case could be distinguished, in that while in Archibald the job was clearly not adjustable, in this case there was at any rate a possibility on the medical evidence of the Claimant being able to do her old role with suitable adjustments, and the reason why this did not go forward was that the claimant would not attempt them.” 30. Mr Grant submits that what needed to be considered by the Tribunal was the extent to which the adjustment “would” alleviate the substantial disadvantage. At the very least, he submits, the ordinary civil standard of proof, namely a balance of probabilities, would be required. A mere possibility will not suffice. 31. Mr Grant submitted in the course of his oral submissions that there were at least five specific ways in which the Respondent failed in its duty to make reasonable adjustments in this case. First, he submits that it failed to be more interventionist in respect of the possibility of recruitment for alternative posts. Secondly, he submits that it failed by not going to recruitment managers and asking them if they had any suitable work that was sedentary. Thirdly, he submits that it failed in not considering whether training was possible for the Claimant, for example to perform a financial role. Fourthly, he submits that it failed in not giving the Claimant prompt feedback so she could have applied, for example, for a job as a receptionist. Fifthly, he submits that it failed in not making the ultimate decision to redeploy the Claimant to a role such as finance, sales or receptionist. He submits that the Employment Tribunal erred as a matter of law in failing to give consideration to this aspect of the case. It simply stopped at the point where it concluded that the Claimant had decided that she did not wish to stay in the current role even with adjustments. In those circumstances he submits that, if this Appeal Tribunal concludes that the Employment Tribunal did err in law, the appropriate course would be for this Tribunal to remit the matter for reconsideration. The Respondent’s Submissions 32. On behalf of the Respondent Mr Peacock submits that there was no error of law by the Employment Tribunal in the way suggested. He submits that the reference to a possibility in paragraph 55 of the Employment Tribunal’s Judgment must be read in context. It was distinguishing the decision in Archibald . He submits that it was correct to do so. He submits that Archibald holds that, where it is impossible for a person to do his or her existing job (as was plainly the case on the facts of Archibald itself), then there may be circumstances in which a reasonable adjustment has to be made, if necessary to redeploy the employee concerned to another job, possibly even without holding a competition for it. However, he submits that those were not the facts of the present case and that accordingly the Employment Tribunal was justified in distinguishing Archibald as it did. 33. He further submits that it is for the Employment Tribunal to determine the question of the reasonableness of adjustments as an objective matter. It is certainly not a matter for the subjective wishes of a particular employee. He submits that the Employment Tribunal was entirely justified, on the evidence before it, in particular the medical evidence, to which I will return later, in reaching the conclusion that the Respondent had discharged its duty to make reasonable adjustments pursuant to section 20(3) of the Equality Act . My Assessment 34. In my judgment Mr Peacock is correct to submit that the Employment Tribunal did not err in law at paragraph 55 of its Judgment in the way suggested on behalf of the Claimant. I agree with Mr Peacock that the decision in Archibald can be distinguished, as it was by the Employment Tribunal in this case, on the basis that, on the facts of that case, the applicant was simply unable any longer to perform the job which she had performed previously. Furthermore I accept the submission by Mr Peacock that, on the facts of this case, the Employment Tribunal was entitled to come to the conclusions which it did. This is particularly so having regard to the medical evidence which was before the Tribunal. 35. As I have mentioned, while the Claimant was in the Czech Republic she submitted a number of sickness notes which she herself translated. One of those appears at page 130 of the appeal bundle. A question was asked at no. 2: “Why [the Claimant] is not able to return to her position of F&B Shift Leader?”

The answer in the translation was:

“Due to great psychological stress is not suitable her recent working placement, but after changing the regime and longer time stabilisation of psychological state will be possible to return her to her recent role.”

I would emphasise that, at least as things stood at that time, the medical advice was therefore envisaging that it would be possible for the Claimant to return to her recent role. 36. The other main piece of evidence which the Tribunal had before it in this context was the report of Dr Beatson-Hird dated 4 January 2013, which appears from page 132 of the bundle. In particular, it is important to quote more fully from it at this juncture. “It is my opinion that she is likely to struggle with a return to her substantive role due to the requirement for prolonged standing and carrying what are described as heavy items. She may be able to manage to stand for an hour at a time followed by a short period of rest but she would struggle with standing for an entire shift. In terms of alternative roles, if you are able to redeploy her, Ms Makuchova would be suitable for any sedentary or lighter role that would not require prolonged standing or lifting/carrying. If you are able to find her a desk based role then she would need a workstation assessment, in order to ensure that this was optimised ergonomically. It is my opinion that she would be fit to return to such a role in the near future. Turning to the specific information requested under section 4 of your referral:- The likely date of her return to work is dependent on whether you are able to put adjustments in place such as frequent breaks from standing and limited carrying, or whether you are able to find her an alternative role. If this was the case she would be fit to return to work as from now. It is likely that prolonged standing and repetitive lifting have contributed to the onset of her back symptoms, although the underlying degenerative condition will have been present for some time. Provided that you are able to find a suitable role, or put adjustments in place, I see no reason why she should not attend work reliably in the future although she may have further flare ups of back pain. Evidently it is a management decision on what adjustments are operationally feasible but redeployment could be considered an adjustment.” 37. In my judgment it is clear from that passage that, when Dr Beatson-Hird was referring to the option of the Claimant’s return to her existing role, the adjustments which were being envisaged by the Respondent led her to express the medical opinion that the Claimant would be fit to return to work. That was certainly a view which was reasonably open to the Tribunal on the basis of the evidence it had before it. Furthermore it must be recalled, as Mr Peacock has submitted before me, that the Respondent was faced with a situation where the Claimant had been absent from work for nearly a year by the time of the workplace assessment, which took place on 14 February 2014. It offered reasonable adjustments to the Claimant and was willing to give assurances that they would be adhered to. I have already outlined what they were and will not repeat them now. They are mentioned in the Employment Tribunal Judgment at paragraph 26. 38. It is also pertinent to bear in mind, as the Employment Tribunal clearly found as a matter of fact, that the Claimant wilfully refused even to contemplate return to her previous role even with adjustments and the assurances that were being given (see, for example, paragraph 14 and paragraph 43 of the Employment Tribunal’s Judgment). 39. Finally, in this context, I accept Mr Peacock’s submission that some assistance can be derived from a later part of the Employment Tribunal’s Judgment. Although set out under the heading which concerned the alleged breach of section 15 of the Equality Act , the passage which began at paragraph 57 of its Judgment, at paragraph 65 of its Judgment the Employment Tribunal stated that: “… The Claimant was in our view not capable of Finance Assistant unless provided with training, and we do not consider that there was a duty on the employer to provide training when there were other jobs available, including her own if adjusted, which she could have undertaken without training. …” 40. It is clear, in my view, reading that passage and the Judgment of the Employment Tribunal as a whole, that it was satisfied that, given the adjustments which the Respondent was prepared to make, the Claimant would be able to do her previous job. In those circumstances, in my judgment, the Employment Tribunal did not err as a matter of law in its approach. Furthermore, in my judgment, the Employment Tribunal came to a conclusion which was reasonably open to it on the evidence before it. Conclusion 41. For the reasons I have given this appeal is dismissed.