North Lancashire Teaching Primary Care Nhs Trust v Howorth (Disability Discrimination : Reasonable adjustments) [2014] UKEAT 0294_13_2401

EAT
North Lancashire Teaching Primary Care Nhs Trust v Howorth (Disability Discrimination : Reasonable adjustments)
[2014] UKEAT 0294_13_2401 · 2014-08-22
[71]“... The only question is, objectively, whether the employer has complied with his obligations or not. ... If he does what is required of him, then the fact that he failed to consult about it or did not know that the obligation existed is irrelevant. It may be an entirely fortuitous and unconsidered compliance: but that is enough. Conversely, if he fails to do what is reasonably required, it avails him nothing that he has consulted the employee.” See also paragraphs 65-70; 72-74. 27. In Royal Bank of Scotland v Ashton [2011] ICR 632 Langstaff J said this:[24]“ Thus, so far as reasonable adjustment is concerned, the focus of the Tribunal is, and both advocates before us agree, an objective one. The focus is upon the practical result of the measures which can be taken. It is not - and it is an error - for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer's thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reasons. ” 28. We do not accept Mr Draycott’s submission that the decision in Tarbuck is either obiter or per incuriam . It has been followed in Ashton , and in HMPS v Johnson [2007] IRLR 951 per Underhill J at paragraph 76. See also Hay v Surrey County Council [2007] EWCA Civ 93 at paragraphs 9-10 per Buxton LJ. 29. In our judgment, Mr Siddall is correct in his submission. The Tribunal were in error in deciding that there was a need for active consideration of the duty to make reasonable adjustments in order to comply with the same. It ignored the fact that the Trust had considered alternatives to dismissal. Ground 2: the reasonableness point 30. Mr Siddall submits that there was a second error of law in the liability judgment at Reasons, paragraph 49, which involved the finding of a breach of the duty to make reasonable adjustments without identifying a single adjustment which would have had the practical effect of keeping the Claimant in work. That is the purpose of a reasonable adjustment: see O’Hanlon v HMRC [2007] ICR 1359 at paragraph 28 and Tameside NHS Trust v Mylott [2010] UKEAT/0352/09 at paragraph 53. He submits that when the Tribunal did engage with the issue of the duty to make reasonable adjustments in the remedies hearing, it found that none were reasonable: remedies hearing, Reasons paragraph 57. 31. Mr Draycott submits that the Tribunal did not err in law in failing to properly consider the issue of reasonableness. He refers us to the Reasons at paragraphs 11-12 and 15. Discussion 32. In Environment Agency v Rowan [2008] ICR 218 at paragraphs 27 and 56, HHJ Serota QC said this:[27]“ It is helpful, therefore, if we restate that guidance to have regard to the amendments to the act: In our opinion an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with the Section 4A duty must identify: (a) the provision, criterion or practice applied by or on behalf of an employer, or (b) the physical feature of premises occupied by the employer, (c) the identity of non-disabled comparators (where appropriate) and (d) the nature and extent of the substantial disadvantage suffered by the Claimant. ... In our opinion an Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments under Sections 3A(2) and 4A(1)without going through that process. Unless the Employment Tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage. ...[56]The Employment Tribunal, because it has failed to identify clearly the nature and extent of the substantial disadvantage suffered by the Claimant has not explained how the proposed adjustment (a trial period of home-working) would alleviate the Claimant's substantial disadvantage. The substantial disadvantage not having been clearly identified it is impossible to know how home-working would have overcome this disadvantage and the Employment Tribunal fails to explain in its decision how home-working would have overcome the adverse effects said to have been suffered by the Claimant. As we have said there may have been evidence that would have justified the finding but the evidence was conflicting and we can only guess as to what was accepted and what was not. There must be some explanation as to why home-working would alleviate the substantial disadvantage said to have been suffered by the Claimant. The parties when considering the decision should not be expected to have to make assumptions as to facts found by the Employment Tribunal in a case where there was powerful evidence to suggest that home-working was not a reasonable adjustment and without an explanation having been given by the Employment Tribunal as to why the Respondent's evidence and explanations were rejected. ”33. We agree with Mr Siddall that the Tribunal has found that there was a breach of the duty to make reasonable adjustments without identifying a single adjustment which would have had any practical effect of keeping the Claimant in work. We have little doubt that this arises from the Tribunal’s failure to consider the reasonable adjustments proposed by the Claimant at the liability hearing rather than leaving them over to the remedies hearing. Nevertheless it is an error of law. Ground 3: the prospect of success point34. Mr Siddall submits that the prospects of success of an adjustment inevitably impact on its reasonableness: see Lancaster v TBWA Manchester [2011] UKEAT/0460/10 at paragraph 46 per Slade J. Mr Siddall submits that at no stage did the Tribunal engage with the question of the prospects of success of any proposed adjustments. There is no reasoning at all on this issue.35. Mr Draycott submits that there is no requirement on a claimant to establish at the liability stage that the proposed reasonable adjustments concerning their employment would have succeeded. All that needs to be established is that there was “just a prospect” that they would have succeeded and nothing more. He relies on Cumbrian Probation Board v Collingwood [2008] UKEAT/0079/08 at paragraph 50 and Leeds Teaching Hospital NHS Trust v Foster [2011] EQLR 1075 at paragraph 17. Both are EAT decisions.36. Mr Draycott refers us to paragraph 50 of the Tribunal’s Reasons. Discussion37. We do not find that what the Tribunal said in paragraphs 49-50 of its Reasons satisfy the test of considering the prospects of success point. The reality is that the Tribunal did not engage with the question of the prospects of success of any of the Claimant’s proposed adjustments. It gives no reasons at all. While we accept Mr Draycott’s point that a prospect of success may render an adjustment reasonable, the Tribunal simply failed to engage with the question. That is an error of law. Ground 4 – the perversity point38. Mr Siddall refers us to the well-known authority of Yeboah v Crofton [2002] IRLR 634 at paragraph 93 per Mummery LJ. It is not necessary to repeat the test here. Suffice it to say that we do not find that, although the Trust has succeeded on its first three points, the decision is perverse. The errors were errors of reasoning and omission.39. It follows that the Trust succeeds on the first three grounds of appeal but not on the fourth ground of appeal. The second appeal40. This is an appeal by the Claimant. Following the rule 3(10) hearing, on 8 November 2013, Mr Draycott filed a re-amended Notice of Appeal, which appears at pages 101D-101J of the appeal bundle. We take each ground of appeal in turn. Ground 1: Whether the Claimant’s dismissal was reasonable for the purposes of section 98(4) of the Employment Rights Act 199641. This ground is divided into three parts. In the first part, Mr Draycott submits that the Tribunal materially misdirected itself in law or, alternatively, fettered its discretion at paragraphs 33 and 78 of its Reasons as to whether the Respondent had reasonable grounds for believing that the Claimant’s conviction by the Preston Crown Court meant that she had committed the offences of “theft, dangerous driving and battery x 2” in noting at paragraph 7 that:
“...the [Respondent’s] dismissing officer and appeal officer both accepted that her actions were involuntary, and medical evidence supports a diagnosis of automatism.”
It then found “that the Tribunal does not have the power to look behind the criminal conviction”. 42. Mr Draycott submits that the Trust’s acceptance of the explanation given by the Claimant that her actions were involuntary meant that she did not have the necessary mens rea to commit any of the offences of which she was subsequently convicted. 43. Mr Draycott also submits that, in the course of its liability judgment, the Tribunal misunderstood section 11 of the Civil Evidence Act 1968 . In the event it was not applicable to proceedings in the Employment Tribunal. 44. Mr Siddall submits that the question of genuine belief is a factual one where the burden of proof is placed on the Respondent. He submits that, given that the Claimant had pleaded guilty to a number of criminal offences, then how could the Respondent not have a genuine belief in the Claimant’s misconduct? 45. We agree with Mr Siddall. In this case, the factual background was clear. The Claimant had committed the actus reus of the offence. She had taken the goods from the supermarket and driven off with a member of the public on the bonnet. Despite the psychological reports made available to the court, she pleaded guilty, no doubt on legal advice. The Respondent was not required to carry out legal research into the background to those pleas of guilty. The question for the Respondent was: might she do it again in the future or something akin to it? The Claimant was banned from driving. 46. Mr Siddall referred us to the case of British Gas plc v McCarrick [1991] IRLR 305 . That case is authority for the proposition that, where an employee is charged with an offence, it is for the employers to reach the decision of fact whether or not they are satisfied that the employee was guilty. The decision for the Employment Tribunal is whether, on the facts which were known or ought to have been known to the employers, they genuinely believed, on reasonable grounds, that the employee was guilty. It is an error of law for the Employment Tribunal to seek to re-open the factual issues on the basis of which the employers reached their conclusion. See the judgments of the Vice-Chancellor at paragraphs 21-22 and Beldam LJ at paragraph 29. In this case, the Employment Tribunal gave its Reasons at paragraph 32-40. We are satisfied that the Employment Tribunal correctly applied Burchell and decided, on the material before it, that they were not justified in going behind the conviction and that it was reasonable to dismiss in this case. 47. The second part of the first ground of appeal is whether the Employment Tribunal erred in law in holding that the Appellant’s criminal convictions were determinative of her unfair dismissal claim, thereby misdirecting itself as to section 98(4) of the Employment Rights Act 1996 and failing to take account of all the relevant circumstances. These relevant circumstances are set out in paragraph 52 of Mr Draycott’s skeleton argument and his written submissions. 48. Mr Siddall submits that the issue is one of fact for the Employment Tribunal, and we can only interfere if it flows from a material misdirection or is perverse. Mr Siddall submits that neither applies here. 49. In our judgment, a proper reading of the liability judgement does not support Mr Draycott’s submission. We draw attention to the following matters: (i) The Employment Tribunal noted that the Respondent’s case was that the conviction and the risk of recurrence was the basis on which it was contended that the Claimant could not remain in employment: Reasons paragraph 16; (ii) The Employment Tribunal noted that the Respondent accepted that the Claimant’s actions had been involuntary and that it sought to look at “mitigating down” the impact of the disciplinary process: Reasons paragraph 20 and 29; (iii) The Respondent’s evidence that it had considered redeploying the Claimant was accepted, as was its evidence as to consideration of keeping the Claimant in her Health Visitor role and its rejection on the grounds of it being too great a risk: Reasons paragraphs 22-23; (iv) The Employment Tribunal found that the appeal officer had considered possible mitigation of sanction: Reasons paragraph 31; (v) The Employment Tribunal then correctly directed itself that it was required to assess the actions of the Respondent against the band of reasonable responses test: Reasons paragraph 34, which properly applied it to the Respondent’s procedure: Reasons paragraphs 35-37; (vi) It then referred to the sympathy of the Respondent’s officers and the fact that nonetheless they felt they had no option but to dismiss: Reasons paragraph 39; (vii) The Employment Tribunal then found that dismissal fell within the band of reasonable responses: Reasons paragraph 40. The language used by the Employment Tribunal in paragraph 40 is significant. It found:
“The only decision which we can reach in this respect is that the decision to dismiss the claimant summarily was open to the respondents...”
See also Reasons paragraph 47. We have no hesitation in saying that the Employment Tribunal was well able to conclude that the decision was within the range of reasonable responses. 50. Before leaving this ground of appeal, we should refer to the case of Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854 . We do not consider that this case is authority for the proposition that the employer in every case is required to conduct an investigation into the alleged misconduct. See, in particular, paragraphs 28, 38, 40-41. At the hearing on 24 January 2014 we were informed by counsel that this case was heard by the Court of Appeal on 20 January 2014 and that the Court of Appeal had reserved judgment. We gave permission to counsel to make further written submissions within seven days of the Court of Appeal delivering its reserved judgment. In fact the hearing was an oral permission hearing and that permission was granted. However, the parties now wish us to proceed to judgment in the present appeals. However, both parties have made further written submissions which we have considered. 51. The third part of the first ground of appeal relates to Article 8(2) of the European Convention on Human Rights. Mr Draycott submits that the Employment Tribunal erred in law in applying the band of reasonable responses test under section 98(4) of the Employment Rights Act 1996 rather than an Article 8(2) proportionality test. Mr Draycott refers us to Manchester City Council v Pinnock [2011] 2 AC 104 at paragraph 45 and Connors v United Kingdom (2005) 40 EHRR 9 , paragraphs 92-95. Mr Draycott submits that these cases require an Employment Tribunal to make its own assessment of the facts and resolve sensitive factual issues rather than simply considering the reasonableness of a dismissal. 52. We agree with Mr Siddall that the answer to this question has been decided by the Court of Appeal in Turner v East Midlands Trains Ltd [2013] IRLR 107 . It is that there is no conflict between the band of reasonable responses test and that of Article 8(2). We conclude that the judgment of Elias LJ at paragraphs 20, 52, and 56 are ad idem with the judgment of Sir Stephen Sedley at paragraphs 73-74. Despite Mr Draycott’s strenuous attempt to distinguish between the judgments in that case, we can see no difference between them. Ground 2 53. Ground 2 is divided into two separate parts. The first part argues that the Employment Tribunal erred in law in failing to take account of its decision to allow the Appellant’s reasonable adjustments claim against the Respondent when holding that the Respondent had acted reasonably in not conducting further inquiries or considering dealing with the matter other than as a straightforward matter of conduct, or that the Appellant’s dismissal was fair. This relates to the Reasons paragraphs 35-40 and 49-50. In our judgment, there was no error of law. First, the Tribunal had erred in concluding that the Respondent had breached its duty to make reasonable adjustments for the reasons we have already given. Second, the sole breach of the duty to make reasonable adjustments found by the Employment Tribunal was a failure to consider making the same. The Tribunal had subsequently analysed all of the alleged adjustments put forward by the Claimant, it found that they were not reasonable. Thus breach of the duty to make reasonable adjustments cannot have impacted on the fairness of the subsequent dismissal. 54. Third, the decision of the Tribunal is correct. It avoided the error in H J Heinz Company Ltd v Kenrick [2000] IRLR 144 of assuming that a breach of the duty to make reasonable adjustments meant that the decision was necessarily unfair. Thus: (1) The Tribunal repeatedly stated that the consideration of mitigation did not amount to a compliance with the duty to make adjustments: Reasons paragraphs 31 and 46; (2) It properly applied the law and found the Claimant’s dismissal to be fair: Reasons paragraph 40; (3) It drew a distinction between a breach of the duty to make adjustments and the fairness of the dismissal: Reasons paragraphs 47 and 49. 55. The second part of this ground of appeal argues that the Tribunal erred in law at Reasons paragraph 61, in saying that the Appellant’s human rights arguments added nothing to her unfair dismissal claim in that her dismissal interfered with her right to private life under Article 8. In our judgment, there is nothing in this ground of appeal. Domestic law recognises that the failure to make reasonable adjustments may impact on the fairness of a dismissal and the issue is determined by Turner , referred to above. Ground 3: job application May 2011 56. This ground of appeal is divided into three parts. The first part argues that the Tribunal similarly materially erred in law in concluding that the rejection of the Appellant’s job application in May 2011 for the vacant role of Health Visitor on the grounds of her previous convictions was a proportionate means of achieving a legitimate aim pursuant to section 15 of the Equality Act 2010 in that there had been no breach of the duty to make reasonable adjustments under sections 20-21 of the Equality Act 2010. 57. The question of justification is a fact for the Employment Tribunal. This ground of appeal adds nothing to the earlier grounds of appeal and, for the reasons already given, we reject it. 58. The second part of this ground of appeal relates to the burden of proof. Mr Draycott argues that, in rejecting the Claimant’s claim under section 21, the Employment Tribunal erred in law by misapplying the burden of proof under section 136 of the Equality Act 2010 , as interpreted by the EAT in Project Management Institute v Latif [2007] IRLR 579 . He submits that the Tribunal erroneously failed to transfer the burden of proof to the Respondent to establish reasonableness after the Claimant had identified reasonable adjustments that should have been made to the relevant recruitment exercise and instead rejected her claim on the basis that the evidence was unclear and it was not in a position to make a decision. 59. We have considered Project Management Institute v Latif and, in particular, what Elias J (as he then was) said at paragraphs 53-55. We have also considered Hewage v Grampian Health Board [2012] ICR 1054 at paragraph 32. In our judgment the Employment Tribunal’s Reasons at paragraph 78 show that it did not consider that the Claimant had identified an apparently reasonable adjustment so as to consider that it needed to “go beyond the finding of another court”. In any event, it made a positive finding of fact that it was not a reasonable adjustment to disapply the requirement of enhanced disclosure. Finally, there was evidence to support such a finding, and there was no error of law. 60. The third part of the third ground is perversity. Mr Draycott submits that the Tribunal acted irrationally in failing to have regard to paragraphs 8.2.2-8.4 of the Respondent’s Recruitment Selection Policy September 2008 : appeal bundle 115-116. 61. The test for perversity is well-known: see Yeboah v Crofton [2002] IRLR 634 at paragraphs 92-95 per Mummery LJ. The finding of the Employment Tribunal was clearly a permissible option: see especially Reasons paragraph 78. There was adequate material before the Employment Tribunal to enable it to reach the decision that it did. There was no perversity. Conclusion 62. For these reasons Mrs Howorth’s appeal is dismissed. Disposal 63. We have allowed the Trust’s appeal against the liability decision. We heard submissions from counsel as to the appropriate means of disposal. With respect to this appeal, the Tribunal misunderstood the scope of the duty to make reasonable adjustments and we are therefore able to exercise our power under section 35 of the Employment Tribunals Act 1996 and decide that the Trust was not in breach of the duty to make reasonable adjustments. There is no necessity to refer this case back to the Employment Tribunal.