Muzi-Mabaso v HM Revenue & Customs (Disability Discrimination) [2015] UKEAT 0353_14_1311

EAT
Muzi-Mabaso v HM Revenue & Customs (Disability Discrimination)
[2015] UKEAT 0353_14_1311 · 2015-11-13
[14]“ 14. … 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.[15]The duty, given that disadvantage and the fact that it is substantial are both identified, is to take such steps as are reasonable to prevent the provision, criterion or practice (which will, of course, have been identified for this purpose) having the proscribed effect - that is the effect of creating that disadvantage when compared to those who are not disabled. It is not, therefore, a section which obliges an employer to take reasonable steps to assist a disabled person or to help the disabled person overcome the effects of their disability, except in so far as the terms to which we have referred permit it.[16]The fact that this requires in particular the identification of the provision, criterion or practice concerned and the precise nature of the disadvantage which it creates by comparison with those who are non-disabled, was set out clearly by this tribunal in Environment Agency v Rowan [2008] ICR 218 , para 27. That guidance is worth restating:
“an employment tribunal considering a claim that an employer has discriminated against an employee … by failing to comply with the … 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” - that, of course, is not relevant to the present case - “(c) the identity of non-disabled comparators (where appropriate) and (d) the nature and extent of the substantial disadvantage suffered by the claimant.”
Later in the same paragraph the tribunal continues to say:
“In our opinion an employment tribunal cannot properly make findings of a failure to make reasonable adjustments … without going through that process. Unless the employment tribunal has identified the four matters we have set out above.”
We interpose to say that of course it is not in every case that all four matters need to be identified but certainly what must be identified is (a) and (d). 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. “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.” ” 55. Specifically, on the question of reasonable adjustment, the EAT continued:
“24. … so far as reasonable adjustment is concerned, the focus of the tribunal is … 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.” 56. That guidance was cited with approval by the Court of Appeal in Newham Sixth Form College v Sanders [2014] EWCA 734, where Laws LJ further opined: “14. In my judgment these three aspects of the case - nature and extent of the disadvantage, the employer’s knowledge of it and the reasonableness of the proposed adjustments - necessarily run together. An employer cannot, as it seems to me, make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and the extent of the substantial disadvantage imposed upon the employee by the PCP. Thus an adjustment to a working practice can only be categorised as reasonable or unreasonable in the light of a clear understanding as to the nature and extent of the disadvantage. Implicit in this is the proposition, perhaps obvious, that an adjustment will only be reasonable if it is, so to speak, tailored to the disadvantage in question; and the extent of the disadvantage is important since an adjustment which is either excessive or inadequate will not be reasonable.” 57. The reasonableness of a potential adjustment need not require that it would wholly remove the disadvantage in question. An adjustment may be reasonable if it is likely to ameliorate the disadvantage (see Noor v Foreign & Commonwealth Office [2011] ICR 695 EAT, per HHJ Richardson at paragraph 33). 58. It was common ground before me that a Claimant would need to raise before the ET those matters on which s/he relied as being reasonable adjustments ( Latif ). As the test is an objective one, however, the Claimant’s case in this regard cannot be limited by what he or she did or did not raise with their employer, although, as Laws LJ emphasised in the Sanders case, the employer’s contemporaneous understanding of the nature and extent of the disadvantage will be a very relevant factor. That does not mean that a failure in the process followed by the employer - as to the degree of assessment or consultation engaged in, or whether further information was or could be obtained - might itself amount to a breach of the obligation to make reasonable adjustments (see per Elias J, as he then was, in Tarbuck and in Mackay ). To the extent that the Claimant seeks to depart from the reasoning in that line of authority and to place reliance on the earlier Judgment of a different division of the EAT in Cambridge , I do not accept his argument. The ET’s task is to assess what would have been reasonable in the circumstances of the case. In so doing, it will have regard to all the evidence before it, which may include evidence of the information obtained by the employer, its assessment of that material and any consultation with the employee. If, however, the employer has failed to carry out any proper consultation or has failed to follow up all possible sources of evidence in order to fully assess the position, that does not mean that it has not met its obligations in terms of the making of reasonable adjustments; just as the fact that it did seek more information or carried out adequate consultation will not be sufficient to demonstrate that it had discharged its obligations. That, it seems to me, is precisely the point made by Langstaff J at paragraph 24 of the Ashton case (see above), which was cited with approval by the Court of Appeal in Sanders . It is, in my judgment, the necessary consequence of the objective nature of the test. 59. A similar point can be made in respect of the justification defence to a claim of indirect discrimination under section 19 of the EqA . The test is well known. It requires an objective balance between the discriminatory effect of the PCP and the reasonable needs of the party who applies that PCP (see per Balcombe LJ in Hampson v Department of Education & Science [1989] ICR 179 at page 191, as approved by the House of Lords in Webb v EMO Air Cargo (UK) Ltd [1993] ICR 175 ). The PCP does not have to be the only possible way of achieving the legitimate aim. Proportionality requires, however, that it is to be assessed as against the legitimate aim, assessing the possibility of alternatives in the light of the disadvantage (see Hardys & Hansons plc v Lax [2005] IRLR 726 CA per Pill LJ at paragraphs 32 to 34). 60. On the question of costs, a deposit order having been made at an earlier stage, Rule 39(5) of the ET Rules 2013 provides: “(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order - (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown …” 61. Where it is considered that a party has so acted unreasonably, Rule 76(1) provides that an ET “may make a costs order … and shall consider whether to do so”
. The question as to whether or not it is appropriate to make a costs award in any particular case is a matter of discretion for the ET. In exercising that discretion (per Mummery LJ in Yerrakalva ):
“41. The vital point … is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. …”
Discussion and Conclusions 62. In considering this appeal, I have sought to keep in mind the case as presented below: an ET does not err in law by addressing the case before it and not some other. 63. I start with the complaints in respect of the redeployment pool. The Claimant challenges the conclusion that he was placed at no disadvantage by the PCP that those without a substantive role would be placed into the redeployment pool. He says the wrong test was applied. I disagree. The comparative exercise in which the ET engaged logically followed from the way in which the Claimant put his case. He was objecting to being a member of the redeployment pool; the ET thus considered his position as a member of the pool as compared to the position if he were not. It did not thereby err in law. For posts at the Claimant’s own grade level, on anyone’s case, he suffered no particular disadvantage by being placed within the redeployment pool. The ET’s conclusion was entirely permissible. 64. As for the requirements then placed upon him in terms of a higher-graded position, there was, again, nothing to suggest that there was any greater obligation upon him in terms of his being placed in the redeployment pool. Ultimately the real complaint in this respect fell to be considered as part of the complaint regarding the PCP of the online test (see below). 65. Mr Lewis sought to add nuance to the Claimant’s case, relying on the particular stress he, as someone suffering a mental-health disability, would have suffered by being put into the redeployment pool; specifically because he was not reassured he would not face redundancy after six months. I am not satisfied that this properly reflects the Claimant’s case below. The PCP he was complaining of was putting him in the pool, not how he was treated once he was there. In any event, there was evidence that the stress the Claimant suffered was in being taken off BDDP, not in being placed into the redeployment pool. 66. Ultimately, the assessment of the evidence relevant to this point is not for me; the question is whether the ET reached a permissible conclusion. Having regard to the disability suffered by the Claimant (depression and stress), the ET was satisfied being placed into the redeployment pool gave rise to no disadvantage. That was a conclusion it was entitled to reach. 67. The ET’s conclusion on disadvantage also provided an answer to the reasonable adjustments case in respect of the Claimant’s membership of the redeployment pool. On this claim, however, the ET went on to consider (in the alternative) the adjustments contended for by the Claimant as steps that would have been reasonable for the Respondent to take to avoid the disadvantage he suffered. Although it is not strictly necessary for me to deal with this part of the appeal (given my dismissal of the first point of challenge), I adopt the same course as the ET and consider the Claimant’s appeal on the adjustments question in the alternative. The reasonable adjustments the Claimant contended for in this regard were: (1) simply slotting him into a job, a case that overlaps with the July 2012 application and the PCP of requiring him to undertake a test as part of that recruitment process (see below); and (2) providing him with counselling to overcome the additional stress he suffered as a result of being in the pool. 68. On the question of counselling the first difficulty for the Claimant’s case on appeal is that it is hard to see what disadvantage this would have addressed. The Claimant had been the recipient of counselling for some time before his admission into the redeployment pool. He continued to receive counselling during his time within the pool and thereafter. To the extent that he says he suffered disadvantage by being placed within the pool (on which point the ET disagreed), it remains unclear as to how he contends that would have been ameliorated by the provision of counselling other than that which he was already receiving. 69. As for payment for counselling, that was a matter that apparently emerged in evidence before the ET rather than having been identified as a separate adjustment in the list of issues. As such, I do not accept that the ET was obliged to expressly engage with it as a standalone issue. In any event, the ET found that the Respondent offered various forms of counselling services to the Claimant without any suggestion that he should meet the cost himself (paragraph 5.15). If there was any duty to make a reasonable adjustment in this regard, the ET plainly found that the Respondent had complied with such obligation as was upon it. I can see no merit in allowing the late amendment of the Notice of Appeal on this point. I am satisfied that the challenge to the ET’s finding on the counselling issue could not succeed whether taken on the more limited basis as originally put or by allowing this wider argument. 70. On appeal - but not before the ET - the Claimant has argued it would have been a reasonable adjustment to have delayed his entry into the redeployment pool and/or his subsequent categorisation as surplus. The point is a bad one. First, because it was not made before the ET, so the necessary findings of fact are not present. Second, because the ET’s finding on disadvantage is a complete answer. Third, because it is really a complaint that the Respondent ought to have undertaken further assessment, and that does not itself amount to an adjustment that could be required (see the discussion of the Tarbuck line of authorities above). 71. I turn then to the Claimant’s case that he should have been slotted into an alternative higher-graded position rather than continue in the redeployment pool. Given that the ET found that there were no relevant vacancies other than those that arose as part of the July 2012 recruitment process (paragraph 5.16), there is overlap between this point and those arising in respect of the online test PCP, and it is convenient to consider those matters together. 72. Before descending into the detail, however, I should first address the appeal and cross-appeal relating to the ET’s findings on disadvantage in respect of the online test PCP. By its cross-appeal the Respondent takes issue with the finding that the requirement to undertake an online test gave rise to a group disadvantage for the purposes of section 19(2)(b) of the EqA . 73. It is right to say that section 19(2)(b) is worded in terms of what “puts, or would put” such persons at a disadvantage, and there is plainly a risk that an ET using the terminology “might” could be applying a lesser test. I bear in mind, however, the need not to focus solely on one word but to adopt a more holistic approach to an ET’s reasoning. Doing so and reading the paragraph as a whole - whilst it would have been preferable if it had simply used the terminology of the section - it is tolerably clear that what the ET had in mind was the hypothetical nature of the exercise in which it was engaged, as allowed by the “ would put” of section 19(2)(b). I duly dismiss the cross-appeal. 74. As for the Claimant’s challenge to the finding that the online test requirement did not put him at a “ substantial disadvantage” for the purpose of section 20(3) EqA 2010 (paragraph 5.17), I am troubled by the ET’s reasoning. I do not say it would be impossible for different conclusions to be reached for the purposes of sections 19(2)(c) and 20(3), but the distinction being drawn would need to be made clear. Here, the ET refers at paragraph 5.17 to the Claimant’s lack of confidence and lack of desire to take the test because of his frame of mind. It then goes on, however, to state that the evidence “did not indicate that he was incapable or unable to undertake it as a result of a particular disability”. I am unsure why that was not so indicated. There was certainly evidence in the form of the emails and the GP’s letter - which the ET accepted as demonstrating particular disadvantage - to suggest the Claimant’s frame of mind and lack of confidence was related to his disability. I therefore agree with the Claimant: the ET’s reasoning here is inadequate to the task and suggests that it applied too high a test. 75. I return to this point below, but, as the ET in any event went on to consider the merits of the specific reasonable adjustments relied on by the Claimant (assuming disadvantage to have been made out), I have done likewise. There is, as Mr Lewis has observed, a potential difficulty in adopting this course, as the assessment of a potential reasonable adjustment will depend upon the particular disadvantage. The Claimant has, however, not resisted the ET’s characterisation of the disadvantage, merely its conclusion in that respect. That being so, I have proceeded to consider the merits of the appeal on the specific reasonable adjustments on the assumption that the Claimant was put to a substantial disadvantage by the PCP of being required to undertake an online test because he had: “5.17. … a lack of confidence in the process and a lack of desire to take the test because of his frame of mind. …” 76. In thus approaching the specific matters relied on by the Claimant in respect of the requirement to take the online test, I agree with the Respondent that this point is effectively answered by the ET’s finding that “He would not have wanted to take the test in any form at that time” (paragraph 5.18). Thus, whether the Claimant’s case is argued as a need to allow him the alternative of a paper (rather than online) test or adjusting the process to permit him to provide his answers orally to someone else, the ET’s finding of fact is clear: he would not have accepted any form of test. The various alternatives identified by the Claimant after the event would not have been reasonable, because they would have done nothing to ameliorate the disadvantage that he suffered as a result of being required to undertake a test of any nature. 77. Similarly, to the extent that the Claimant seeks to argue that the Respondent should have delayed the requirement to take an online test and/or obtained further medical evidence or carried out a further assessment of his needs, I consider the ET’s findings provide a complete answer. Even if these matters could themselves amount to reasonable adjustments - and, for the reasons I have already given, I do not agree that they could - the findings are clear: the Claimant’s position was that he would not have wanted to undertake any form of test. 78. That leaves the contention that the Claimant should simply have been slotted into a vacancy in the July 2012 recruitment exercise and/or have been permitted to proceed in that exercise without having to take the online test. Two separate questions arose in this respect: (1) could the Respondent show that requiring the Claimant to continue in the redeployment pool and take the online test for higher-graded positions in July 2012 was a proportionate means of achieving a legitimate aim? and, separately, (2) were the adjustments proposed by the Claimant - that he should have been slotted into a vacancy and/or permitted to proceed in the recruitment exercise without having to take a test - reasonable for the Respondent to make? 79. Addressing the first of those questions, the Respondent’s legitimate aim was held to be twofold: first, the need to have a fair and objective method of ensuring that candidates met basic competency requirements; and secondly, the need to filter nearly 5,000 candidates. The Claimant does not take issue with the ET’s finding that these were indeed legitimate aims but argues that it erred in failing to take into account the less discriminatory alternatives open to the Respondent, such as making an exception for the Claimant (as had been done for blind candidates when the Respondent had been unable to offer a Braille version of the test), or proceeding on the basis of management recommendation (and the Claimant’s past experience on the BDDP) and allowing for the possibility of training on the job. 80. These were, of course, the reasonable adjustments the Claimant was seeking, to avoid the disadvantage of remaining in the redeployment pool or of being required to take an online test. There was, therefore, some degree of overlap in matters relevant to the consideration of these questions. That said, the focus for the indirect discrimination complaint was bound to be on the justification of the PCP more generally, whereas the reasonable adjustments case required the ET to specifically consider the Claimant’s individual case and circumstances. 81. On the question of justification under section 19(2), the ET accepted that the sheer number of candidates meant it was necessary to require applicants to undertake the online test; this provided a fair and objective means of carrying out the initial sift. That approach (rightly) looks at the reasons why the Respondent might wish to use such a test. It does not, however, disclose any balancing of the discriminatory impact of it doing so. Having accepted that, at least hypothetically, there would be a disadvantage for candidates suffering stress or depression by requiring them to take this kind of test, the ET fails then to demonstrate that it put that into the balance when determining whether it was necessary and appropriate to continue to make this a general requirement. To observe, as the ET went on to do, that “online psychometric testing of this sort was in widespread use” (paragraph 5.12), does not engage with the balancing exercise it had to undertake. 82. That is not to say an ET would not be entitled to conclude the requirement was justified. There was evidence that the Respondent had to respond to a number of different requests for reasonable adjustments (see the letter cited at paragraph 4.39) and it may be that it would not have been proportionate for the Respondent to allow for exemptions, given the number of candidates and the various demands it had to balance. That assessment was, however, for the ET, and I am not satisfied that it carried out the task required of it in this respect. 83. As for the reasonable adjustments claim, save for observing that the Claimant had not made good his contention that he was qualified for a Grade O job at that stage (paragraph 5.20), the ET simply refers back to its earlier conclusion on the question of justification. As explained above, I am not satisfied that the reasoning in that regard was sufficient. In addition to that difficulty, however, the focus of the ET’s reasoning for the purpose of the section 19(2) “defence” was bound to be different to its focus in terms of the reasonable adjustments claim. In the former case the focus was on the justification of the policy. That still left open, however, the question whether, in the Claimant’s individual case, the Respondent was bound to make a reasonable adjustment for section 20 purposes. On this question it was potentially relevant that the Claimant’s manager considered the Claimant was “capable of ultimately achieving an O or HO grade” (paragraph 5.16). The ET was entitled to conclude that this did not mean that the Claimant had established that he was qualified at that time, but the question remained whether he had demonstrated sufficient potential in terms of his past experience (albeit he had not been able to progress past the second assessment in BDDP) along with his manager’s recommendation and the potential provision of training (a point that was run below as part of the Claimant’s overall case in this respect rather than a standalone matter), to mean that a reasonable adjustment would have been to permit him to proceed past the initial sift stage in this recruitment process. In carrying out that assessment, the ET would be entitled to consider the difficulties the Respondent might face in allowing exceptions for individual cases, but that would all be part of the determination of what would be reasonable. On the reasons provided, I am not satisfied the ET carried out the level of scrutiny required in respect of the potential reasonable adjustments in the Claimant’s individual case in this regard. 84. It may also have been relevant that the Respondent had made an exception in the past for blind candidates when it was unable to provide the test in Braille. The Respondent seeks to distinguish those earlier cases by pointing out that the candidates in question were willing to take the test, it was just that the Respondent could not provide it in the form that would overcome the disadvantage they suffered as a result of their disability. I agree with Mr Lewis, however: those are not necessarily points of distinction. If the Claimant’s ‘unwillingness’ to take a test arose from his disability and he was thus unable to proceed because the Respondent had not provided an alternative means for him to participate, the point of distinction seems to disappear. I do not say that the Respondent was thus bound to make an exception for the Claimant; the difficulty here is that the ET simply does not address the point. 85. Given the view I have formed on the question of disadvantage in respect of the Claimant’s membership of the redeployment pool, my concerns on the questions of justification (section 19(2)) and reasonable adjustments (sections 20 and 21) cannot assist the Claimant so far as that PCP is concerned. 86. As for the PCP of the online test, in so far as this formed part of the indirect discrimination complaint, whilst I am satisfied that the ET’s conclusion on disadvantage should be upheld and the cross-appeal dismissed, I cannot be confident that it carried out the requisite balancing exercise, and so I allow the appeal in respect of the section 19 claim in this regard. 87. Turning to how the ET dealt with this issue as part of the reasonable adjustments claim, I do not consider the reasoning provided adequately explains its finding that there was no substantial disadvantage, and I allow the appeal on this point. To the extent that the Claimant seeks to challenge the ET’s rejection of the reasonable adjustment of a different form of test, I consider that case met by the finding that the Claimant would not undertake any form of test; it was thus not a reasonable adjustment to avoid the disadvantage. The appeal on that point is accordingly rejected. On the other hand, the alternative adjustment - exempting the Claimant from any test - was something I am satisfied warranted more consideration than is disclosed by the ET’s reasoning, and I therefore allow the appeal on that point. 88. The question remains as to the proper disposal of the appeal in the light of this Judgment, and I shall consider further representations from the parties on this question. 89. I then turn to the appeal on the award of costs. It seems to me that the ET’s reasoning in this regard is bound up with its view as to the merits of the Claimant’s claims, in particular given the earlier deposit order and the fact that he had subsequently lost on substantially the same basis as identified at that earlier stage. I do not consider the ET was thereby approaching this as meaning that there was an irrefutable presumption that it must make an award of costs; indeed, it expressly went on to see this as a matter of discretion under section 76 (paragraph 7.8). Given I have decided that the ET’s conclusions on aspects of the Claimant’s claims cannot stand, however, it seems to me inevitable that the costs award must also fall away. 90. I have considered whether the basis for the award might instead be said to relate to the Claimant’s post-hearing conduct, but I cannot read the ET’s reasoning in that way. At most, that seems to have been seen as corroboration of his apparently blinkered and intransigent approach (paragraph 7.8). Had that been the main reason for the award, it would, in any event, have required greater specification as to the relationship between the conduct and the award made. The award of costs cannot stand, and I therefore also allow the appeal in this regard.