Pnaiser v NHS England & Anor (Disability Discrimination: Burden of proof) [2015] UKEAT 0137_15_0412

EAT
Pnaiser v NHS England & Anor (Disability Discrimination: Burden of proof)
[2015] UKEAT 0137_15_0412 · 2015-12-04
[18](d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of section 15 of the Act (described comprehensively by Elisabeth Laing J in Hall ), the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. (e) For example, in Land Registry v Houghton UKEAT/0149/14 a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The Tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in section 15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26 to 34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages - the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability. (h) Moreover, the statutory language of section 15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of section 15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under section 13 and a discrimination arising from disability claim under section 15. (i) As Langstaff P held in Weerasinghe , it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment. The Appeal32. The Tribunal addressed the law shortly, at paragraphs 90 to 98, by summarising rather than setting out the relevant provisions. As for section 15, it summarised it as requiring “motivation by an effect of the Claimant’s disability.” If by referring to ‘motivation’ the Tribunal meant the conscious or unconscious reasons or cause of the treatment, that summary is acceptable.33. The effect of section 136 of the Act and the reverse burden of proof is summarised at paragraph 94 and the Tribunal made reference to relevant authorities setting out what all parties agree is a correct direction as to the proper approach to the burden of proof.34. The Tribunal also referred briefly to Nagarajan in the context of direct discrimination, and to IPC Media for the proposition that “an act or omission can occur ‘because of’ a proscribed factor as long as that factor operates in the mind of the putative discriminator (consciously or unconsciously) to a significant extent”.35. Against that background I turn to address the grounds of appeal and cross-appeal.36. Four grounds of appeal are advanced on the Claimant’s behalf. The first two grounds relate to Ms Tennant’s reference and the Council’s liability for discrimination arising from disability. Grounds three and four are parasitic on the first two grounds and concern Prof Rashid and NHS England. Ground 1: error of law in relation to the reverse burden of proof37. Although no direct criticism is made of paragraph 94 and the direction the Tribunal gave itself in relation to the burden of proof, Ms Moss contends that the Tribunal nevertheless misdirected itself and/or misapplied section 136 of the Act, wrongly deciding that the Claimant had not established a prima facie case and as a consequence, failing to conclude that the burden shifted to the Council to show that Ms Tennant’s negative reference was in no sense because of something arising from the Claimant’s disability. Since there was no dispute that the Claimant’s significant absence from work arose in consequence of her disability to Ms Tennant’s knowledge, and no dispute that Ms Tennant gave an unfavourable reference, the Claimant had only to establish a prima facie case that the negative reference was given by Ms Tennant, at least partly, because of the Claimant’s absence. She submits that the Claimant did this.38. Although it can be helpful in some cases for Tribunals to go through the two stages suggested in Igen v Wong , as the authorities demonstrate, it is not necessarily an error of law not to do so, and in many cases, moving straight to the second stage is sensible. This Tribunal did not however do so. It approached this case on a two stage basis and its Reasons must be considered in that context.39. The Tribunal’s reasoning on the question of what caused Ms Tennant to give the negative reference appears under a heading related to Prof Rashid and NHS England, but it is common ground that the relevant passages are at paragraphs 116 to 125. 40. At paragraph 116 the Tribunal posed the question why Ms Tennant told Prof Rashid that the Claimant was unsuitable. This was a proper question to ask, although the Tribunal then said “i.e. was it because of the Claimant’s ill health” when the question should simply have been “was it (consciously or unconsciously) because of the Claimant’s absences?” 41. At paragraph 117 the Tribunal set out facts relied on by the Claimant including the satisfactory appraisal and secondment references Ms Tennant gave; and comments in her witness statement explaining why, on her case, she told Prof Rashid that since the Claimant had taken significant periods of absence, it was difficult for her to

judge whether she was suitable for the role he described:

“… “In making this comment, I was conscious that my last contact with Dr Pnaiser was only 5 months earlier and at that point she was still signed off by her GP on a long term sickness absence which had lasted almost 8 months.”
She (the Claimant) relied on the further similar comments by Ms Tennant when cross examined and her comment that she was unable to judge her potential because she was having difficulty managing her symptoms … She relies on Ms Tennant’s concession that her holding back on giving a positive reference could be construed as due to the sickness absence.” 42. At paragraph 118 the Tribunal noted that the Claimant’s job had been at Band 7 but the new role was at Band 8A, the secondment having been at Band 8B; the new role was sensitive and stressful, involving line management responsibilities which the Claimant did not have in her former role; and Ms Tennant made the comments about suitability for the role after Prof Rashid had explained the role to her. 43. At paragraph 120 the Tribunal referred to the chronology of the Reference Call as set out in Prof Rashid’s email of 17 September, which it accepted. On the basis of this account of the conversation it said:
“on the face of it, Ms Tennant made her comments as a response to the description of the role and so the reason she made them was that she did not consider the Claimant could do the role having heard the description.”
(emphasis added) 44. At paragraph 122 the Tribunal said:
“The strongest argument for the Claimant is Ms Tennant’s failure to accept that she made the comments in question about the Claimant’s suitability for the role. One may be tempted to infer from this that the comments had a discriminatory motivation. However, we do not accept that the only inference to be made from this is that Ms Tennant had a discriminatory motive. She was quite frank about having referred to sickness absence in the Reference Call which would more obviously link to the disability. Ms Tennant was consistent in saying she did not comment further on suitability because of the Claimant’s sickness absence and because she did not fully understand the new role. However, just because she says [she] did not comment on suitability because of sickness absence does not necessarily mean that she in fact commented on suitability due to sickness absence. We consider that the reason that Ms Tennant denied making the comments was because, as it was put to her in cross examination, she knew she had gone too far in saying that the Claimant was unsuitable for the role. If Ms Tennant had had in mind the sickness absence when making the comment, and been anxious to disguise this, she would not have so readily admitted to commenting on the sickness absence in the Reference Call. Therefore, we do not consider that the Claimant has made out a prima facie case of discrimination. …” 45. The first criticism made by Ms Moss is that the Tribunal set too high a hurdle for the Claimant, requiring her in effect to prove that the only inference that could be drawn was, as the Tribunal incorrectly put it, “Ms Tennant had a discriminatory motive”
. Leaving aside the wrong reference to motive, she submits that the Claimant was not required to show positively that the negative reference (the unfavourable treatment) was caused (or was caused only) by her significant absence but merely that there were facts from which such an inference could be drawn. Ms Moss submits that the first two sentences of paragraph 122 amount in fact, to an acknowledgment by the Tribunal that the Claimant had established a prima facie case and that the burden did shift to the Council. 46. Both Respondents contend that this criticism is unjustified and that the Tribunal was simply answering the case advanced by the Claimant as summarised at paragraph 117.1 where the Claimant is recorded as saying that “the only reason Ms Tennant could have had for her comments was the Claimant’s sick absence”. Thereafter, both contend that the Tribunal carried out a proper assessment of all the facts and reached conclusions that were permissible. Accordingly they say that paragraph 122 discloses no error of law. 47. I accept the point made by the Respondents about the way the Claimant put her case. If there was nothing else in the decision to suggest that too high a hurdle was imposed by the Tribunal that might explain what it said without amounting to a misdirection or misapplication of the test. 48. However, I have concluded that a fair reading of the whole of paragraph 122 shows that the Tribunal did apply a test that required the Claimant to show that the only inference that could be drawn was a discriminatory one before it could conclude that the burden shifted to the Respondents. I reach that conclusion because, having pointed out that a discriminatory motivation was not the only inference, the Tribunal went on to say that comments on suitability did not “necessarily mean” that Ms Tenant “commented on suitability due to sickness absence”. This is consistent with the impermissibly high hurdle it had identified earlier. What the Tribunal should have asked itself instead is simply whether the fact that Ms Tennant gave a negative reference, which she denied giving, in a conversation where she mentioned the Claimant’s significant absence, and her knowledge of and concerns about the Claimant’s history of significant absences were together sufficient to raise a prima facie case against the Council that absence was (consciously or unconsciously) a reason in Ms Tennant’s mind for giving the negative reference, so that the burden shifted. 49. It is possible that the Tribunal fell into the trap of substituting ‘motive’ for causation in deciding whether the burden of proof shifted. Thus, at paragraph 118.4, the Tribunal said: “Ms Tennant denied making the comment about the Claimant’s suitability for the role. On the face of it, this could lead us to infer that she had a discriminatory motive. …” 50. Then at paragraph 122 it said this was not the only inference to be drawn. But motive was irrelevant. The question for the Tribunal was why Ms Tennant gave the negative reference, and in that regard, was there evidence from which it could be inferred that the Claimant’s absence was part of the reason. 51. Had the Tribunal asked this question, the only possible answer, as it recognised at the beginning of paragraph 122, was that sufficient facts had been shown to shift the burden of proof. This ground of appeal is accordingly upheld. Ground 2: no evidence to support the Tribunal’s conclusion that absence was not the reason 52. The Claimant contends that there was no evidence to support the Tribunal’s conclusion that Ms Tennant was not “motivated by the effects of the Claimant’s disability” in giving the negative reference, and moreover, that the Tribunal failed to answer the critical question why Ms Tennant said the Claimant was not suitable for the role. The evidence relied on by the Tribunal as “most persuasive of the reason for Ms Tennant’s comments” was Prof Rashid’s email account of the Reference Call, but Ms Moss submits that the email does not support the Tribunal’s conclusion. None of the other matters relied on by the Tribunal as evidence to support its implicit conclusion (at the end of paragraph 122) that absence was not the reason for the negative comments, was relied on by Ms Tennant and in fact Ms Moss submits, the evidence supported the opposite conclusion. 53. The Respondents resist this argument, albeit accepting that the judgment is not clear in certain respects. Nevertheless, both contend that there was no critical omission or failure. They acknowledge the difficulty the Tribunal found itself in because Ms Tennant denied making any comment whatever about the Claimant’s suitability, but submit this does not mean there was no evidence to support the Tribunal’s conclusion. Rather, the Tribunal assessed the facts, drew appropriate inferences, and reached a conclusion that was fully supported by its findings of fact. Both rely in particular on what are said to be the critical findings of fact at paragraphs 35 and 36 (see paragraph 9 above) as justifying the Tribunal’s conclusion. They both contend that grounds 1 and 2 are perversity appeals dressed up as errors of law, and the high hurdle for perversity has not been overcome. 54. I disagree, and accept the arguments advanced by Ms Moss in relation to this ground of appeal. 55. First, in my judgment, Prof Rashid’s email affords no evidence in fact, still less persuasive evidence of the conscious or unconscious reasons or causes operating on Ms Tennant’s mind when she made the negative comments. The email provides his account of the conversation, and at best, the order in which comments were made. Since, as the Tribunal found, Ms Tennant did not explain why she said the Claimant was unsuitable, and Prof Rashid did not ask her why she had that view, the email does not address that question. The Tribunal’s conclusion that on the face of the account the negative comments were made as a response to Prof Rashid’s description of the role “and so” the reason she made them was that she did not consider the Claimant suitable for the role begged the question whether the comments were made because of lack of competence, or the fact the Claimant had significant absences, or a combination of the two. 56. Second, because Ms Tennant denied giving the negative reference, and Prof Rashid asked no questions of her, there was in fact no direct evidence, whether given by her or at all, as to what consciously or unconsciously was operating on her mind in saying the Claimant was unsuitable. The Tribunal was permitted to draw proper inferences, but only where these were supported by undisputed evidence or its own evidence-based findings. 57. While the Respondents rely on the findings that Ms Tennant said she would re-employ “at the current level” (paragraph 35) and drew a distinction between acting up on secondment and permanent employment in a higher banded post (paragraph 36), it is difficult to see how these statements could support an inference, without more, that competence alone was the reason for the negative reference. Moreover, these statements had to be considered alongside a series of other matters set out by the Tribunal in relation to Ms Tennant and not expressly rejected, including satisfactory references, her knowledge of the Claimant’s significant absence and as summarised at paragraphs 71 to 73, her difficulty in judging the Claimant’s potential to fulfil the new role, because of concerns about absence rather than competence. 58. Third, the Tribunal’s conclusion that the reason Ms Tennant denied giving a negative reference was that she knew she had gone too far in saying to Prof Rashid that the Claimant was unsuitable for the new role (paragraph 122) was wholly inconsistent with its conclusion that Ms Tennant had genuine competence concerns that led to her negative comment. Ms Tennant would only have “gone too far” if she did not have genuine competence or performance concerns that justified it. 59. Accordingly, in my judgment the Tribunal reached a conclusion that was not only unsupported by the evidence, but was contrary to the evidence about the negative reference, and contrary to the Tribunal’s own finding as to why Ms Tennant denied giving it. Grounds 3 and 4: errors of law in relation to Prof Rashid’s unfavourable treatment 60. I take these grounds together. The Claimant contends that if she is correct in relation to the Tribunal’s findings about Ms Tennant, it follows that there was an error of law in relation to Prof Rashid and NHS England, when it held that this claim under section 15 failed too. Further, she contends in any event, that the Tribunal misapplied the law by failing to examine whether there was the necessary casual link between the reason for the treatment complained of (the withdrawal of the job offer) and the disability. 61. It is common ground that Prof Rashid withdrew the job offer because of Ms Tennant’s negative suitability comments. Having rejected the Claimant’s case that it was Ms Tennant’s reference to significant absence that led Prof Rashid to withdraw the job offer (her primary case) and made a positive finding that it was her comments about the Claimant’s lack of suitability for the role, the question for the Tribunal was whether the unsuitability comments were something that arose in consequence of the Claimant’s disability because they arose in consequence of her absence. 62. Although Miss Jeram sought to argue that this case was never advanced against NHS England, and that the Tribunal’s finding that Prof Rashid did not withdraw the job offer because of references to the Claimant’s absence was a conclusive finding of fact on this part of the case and cannot be impugned as in error of law, I disagree. Paragraph 111 demonstrates clearly that the argument was run, and in my judgment, had therefore to be addressed. It was not answered by the findings relied on by Miss Jeram at paragraphs 100 and 100.2 that references to absence in the Reference Call were not the reason for the job withdrawal. 63. Nor in my judgment is there merit in Miss Jeram’s argument that it was wholly irrelevant and indeed impermissible to look behind the reason why Ms Tennant said the Claimant was unsuitable when considering NHS England’s liability. She relies on CLFIS (UK) Ltd v Reynolds [2015] IRLR 563 in this regard to argue that looking behind Ms Tennant’s negative reference at her reasons for giving it involves an unacceptable composite approach to liability and would impermissibly bring together Ms Tennant’s motivation and Prof Rashid’s treatment so that her motivation is treated as a part of the ground for his action. 64. The Tribunal was required to apply the two stage test in section 15 in relation to both Respondents and to do so in relation to the unfavourable treatment identified in each case. The question why Ms Tennant said the Claimant was unsuitable is a relevant question to ask in relation to Prof Rashid’s unfavourable treatment because of it, in order to identify whether it arose in consequence of disability. This does not involve an impermissible composite approach, but the application of the statutory test which may encompass indirect consequences depending on the facts. 65. If the opinion expressed by Ms Tennant was as a matter of fact (consciously or unconsciously) significantly influenced by the Claimant’s absences (which were disability related), then subject to knowledge of disability and justification, the burden would shift to NHS England, on the facts found by the Tribunal. 66. That involves no unfairness on the facts of this case, contrary to Miss Jeram’s contention. The Tribunal found that Prof Rashid knew that the Claimant had had surgical interventions and significant absence, though he did not ask anyone about that or why. When told by Ms Tennant that she considered the Claimant unsuitable and would not employ her in the new role, in a conversation where significant absence was again referred to, again Prof Rashid did not ask why Ms Tennant held that view. At paragraph 114 the Tribunal said: “When Ms Tennant said to him that the Claimant would not be able to undertake the role and she would not employ her in it, he should have considered whether comment (sic) could be linked to the information he had about the Claimant’s surgical interventions and absence and investigated whether the Claimant had a disability and whether Ms Tennant’s opinion was due to a disability on the part of the Claimant …” 67. In light of my conclusions in relation to grounds 1 and 2, there were facts from which the Tribunal could infer that the unsuitability comments were made by Ms Tennant (at least partly) because of the Claimant’s absences (which were a consequence of her disability) so that the burden shifted to the Respondents to show that absence (or the consequence of the Claimant’s disability) played no part whatever in the reasons she said the Claimant was unsuitable that led to Prof Rashid’s withdrawal of the offer of employment. Grounds 3 and 4 of the appeal are accordingly upheld. The Cross-Appeal 68. NHS England seeks to challenge the Tribunal’s finding that Prof Rashid had constructive knowledge of the Claimant’s disability. 69. It is common ground that while the statute does not require knowledge (whether actual or constructive) of the precise diagnosis of the disability in question, it does require knowledge (actual or constructive) of the facts constituting the disability. In other words, that the individual is suffering from a physical or mental impairment which has substantial and long-term adverse effects on his or her ability to carry out normal day-to-day activities: see Wilcox v Birmingham CAB UKEAT/0293/10 at paragraph 34. 70. Miss Jeram submits that on the Tribunal’s findings it was not possible to discern that the Claimant had such an impairment, and so the Tribunal fell into error in finding that constructive knowledge was established. Moreover, she submits that the Tribunal wrongly fixed Prof Rashid with constructive knowledge because he closed his eyes to the possibility of disability, rather than the fact of disability (as indicated by paragraph 113). 71. Although it is true that the sentence relied on by Miss Jeram in paragraph 113 refers to the possibility of disability, in the next sentence the Tribunal set out the requirement that the alleged discriminator “either knew or ought to have known of the disability” italicising that phrase. Reading paragraph 113 as a whole, together with paragraph 114, I am satisfied that this is the test applied by the Tribunal, and that it was not concerned to establish whether Prof Rashid knew merely of the possibility of disability. 72. The question what a Respondent knew or should reasonably have been expected to know is one for the factual assessment of a Tribunal. Here, the Tribunal made findings about the reference given to Prof Rashid by Dr Fleming (paragraphs 54 and 67). This referred to two surgical procedures which were the cause of two periods of absence during the 12 months of her employment ending in June 2010. Ms Tennant referred to significant absence in the period to May 2012. If linked, these facts could lead to the conclusion that the Claimant had a physical condition that had substantial, long term adverse effects on her day to day activities because it required two surgical interventions and caused her to have significant absences from work (consistent with not being able to perform normal day to day activities) over a period longer than 12 months. The Tribunal found that Prof Rashid was a doctor with a high level of awareness of medical conditions. If he had asked Ms Tennant about the absences, and whether there was a link with the earlier surgery (as the Tribunal found he should have done), it is implicit on the Tribunal’s findings that Ms Tennant (who knew that the Claimant’s significant absence was disability related) would have told him that the Claimant was disabled. 73. This was a conscientious assessment of the facts and in my judgment, the Tribunal made a permissible finding that was not arguably perverse or in error of law. This challenge accordingly fails. Disposal 74. Having reached those conclusions, the question is whether I should, as Ms Moss urges, substitute a finding that both Respondents unlawfully discriminated against the Claimant under section 15 of the Act, or whether I should remit these matters to the Tribunal, as Miss Jeram and Miss Garner urge me to do. The circumstances in which the EAT substitutes its own view for those of the fact finding Tribunal are rare. This Tribunal must be satisfied that there is no other possible conclusion on the facts found before it can do so. 75. This is a case where the Tribunal made all the findings of fact necessary. The errors made were at the stage of applying the law to the facts satisfactorily found. 76. If the Tribunal had properly applied section 15 and the burden of proof provision, in light of the undisputed evidence and those factual findings, the inevitable conclusions in relation to Ms Tennant and the Council would have been as follows: (i) There were facts from which a Tribunal could infer that a reason Ms Tennant made the comments that the Claimant was unsuitable for the new role was the Claimant’s absences. (ii) Since there was no dispute that she knew of the disability and the absences were disability related (again as she knew), this was sufficient to establish a prima facie case under section 15 (1), and the burden shifted to the Council to show that the absences played no part whatever in the reasons for her negative reference. (iii) Ms Tennant denied saying the Claimant was unsuitable, had not questioned the Claimant’s competence, gave no explanation for saying the Claimant was unsuitable, and gave evidence (not rejected by the Tribunal) that her concerns about the Claimant were due to absence and not competence. Absence being part of the reason for Ms Tennant’s unfavourable treatment cannot be excluded on the facts found. (iv) No justification argument was run in relation to Ms Tennant saying (for whatever reason) that the Claimant was unsuitable. 77. In relation to Prof Rashid and NHS England, once it is concluded that the unfavourable reference given by Ms Tennant was (at least partly) in consequence of the Claimant’s absence (which arose from the disability), the following analysis follows inevitably: (i) The Tribunal found that the unfavourable treatment was done by him because of the unsuitable reference, having rejected all other reasons advanced as a matter of fact. (ii) Prof Rashid did not know why Ms Tennant gave the unsuitable reference and did not ask that question. (iii) The Tribunal found that he had constructive knowledge of the Claimant’s disability. (iv) The only remaining question on the facts found, was whether the unsuitable reference was something arising in consequence of the disability. (v) The only possible conclusion available on the facts found was that it was: it arose at least partly in consequence of the Claimant’s significant absence, which was a consequence of the disability. (vi) There is no unfairness to Prof Rashid or NHS England in substituting that finding. It was always open to him to advance a justification argument. No justification argument was pursued, and it is now too late. 78. Accordingly, this is one of those rare cases where it is appropriate to substitute findings of unlawful discrimination against both NHS England and the Council under section 15 of the Act. 79. The appeal is allowed and findings of unlawful discrimination under section 15 against both Respondents are substituted. The cross-appeal fails and is dismissed. 80. The case will have to be remitted to the Tribunal to deal with remedy.