Greenslade v Next Distribution Ltd (Disability Discrimination: Detriment) [2016] UKEAT 0156_15_1801

EAT
Greenslade v Next Distribution Ltd (Disability Discrimination: Detriment)
[2016] UKEAT 0156_15_1801 · 2016-01-18
[1]I refer to the parties as the Claimant and the Respondent, as below. The appeal is that of the Claimant against a Judgment of the Sheffield Employment Tribunal (Employment Judge Trayler, sitting with members on various dates in November and December 2014; “the ET”), sent to the parties on 4 February 2015. Mr Bayne of counsel represented the Claimant below as he does today. The Respondent then appeared by its solicitor but has relied on written representations for the purposes of this appeal.[2]So far as relevant, the ET found that the Claimant’s claim of unfair dismissal failed but allowed that her complaints of disability discrimination contrary to sections 15, 20 and 21 of the Equality Act 2010 (“EqA”) - that is, discrimination arising from the Claimant’s disability and a failure to make reasonable adjustments - succeeded in part. The Claimant appeals against the ET’s apparent failure to uphold aspects of her claims in these respects. She does not challenge the ET’s conclusion on unfair dismissal. After an Appellant-only Preliminary Hearing HHJ Richardson permitted this matter to proceed to a Full Hearing subject to first asking the ET to address a number of questions under the Burns/Barke procedure ( Burns v Royal Mail Group plc [2004] ICR 1103 , Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578 ). The ET has since responded to the request, and I shall consider its reply in due course. The Background Facts[3]The Respondent is a large employer in the retail sector. As from 5 July 2009 it employed the Claimant as a warehouse operative. Throughout her employment, as the Respondent was aware, the Claimant suffered asthma, which rendered her a disabled person for the purposes of the EqA 2010 . Specifically, the Claimant experienced difficulties due to her disability when working on the top floor of the warehouse; it caused an exacerbation of her asthma (see the ET Reasons at paragraph 79), and Occupational Health advised she should be relocated. The Claimant was moved to a ground floor pre-retail role in December 2010, but this ended after a relocation exercise in April 2012, when the job she had been performing ceased.[4]In September 2012 the Claimant returned to working on the top floor, which she agreed to in the absence of any other alternative, albeit there had been eight full time ground floor posts available to employees affected by the relocation (ET Reasons paragraph 43) but which were allocated on the basis of length of service. The ET concluded that the Respondent unreasonably failed to make an adjustment to prioritise the Claimant as a disabled person in this regard (paragraphs 80 and 81 of the Reasons). It did offer the Claimant an adjustment to permit her to work on the ground floor, but on reduced hours. Following a further exacerbation of her asthma after her relocation to the top floor, the Claimant was used to cover temporary duties on the middle floor, but by around February 2013 this came to an end and she was required to return to her top floor role.[5]Having received further Occupational Health advice that the Claimant was not fit to work on the top floor due to her asthma, the Respondent conducted a welfare review meeting on the grounds that the Claimant was unfit to perform her substantive role. That resulted in the decision to dismiss the Claimant by reason of incapacity with effect from 21 August 2013. The ET’s Conclusions and Reasoning[6]The ET concluded that, at the time of the relocation exercise, returning the Claimant to work on the top floor amounted to discrimination arising from a disability contrary to section 15 EqA : it was unfavourable treatment that arose in consequence of the Claimant’s disability and was without a legitimate aim. It further concluded that this amounted to a failure to make a reasonable adjustment to its policy - its provision, criterion or practice (“PCP”) - of offering the remaining ground floor roles to its longest serving employees contrary to sections 20 and 21 EqA . In considering the detriment the Claimant suffered as a result of the Respondent’s discrimination in this regard, the ET observed:
“82. The detriment to the Claimant is a reduction in hours and how long such loss would have continued is in our consideration a question for the remedy hearing which will be arranged to consider this. …”
[7]In its response to the EAT under the Burns/Barke procedure the ET clarified that it had not intended this to amount to a finding as to the only detriment suffered by the Claimant, and referred back to its findings (paragraphs 79 and 80) that the move to the top floor was unfavourable treatment because of the exacerbation caused to the Claimant’s asthma.[8]The ET then considered the Claimant’s dismissal, finding:
“85. … The reason for dismissal is that the Claimant says she cannot work on the top floor and the Respondent having no alternative but a twenty hour post on the ground floor which the Claimant would not accept dismisses the Claimant as incapable of fulfilling her then role on a 32 hour basis allocated to working on the top floor of the Respondent’s premises. …”
[9]That being a reason related to the Claimant’s capability, it was potentially fair for the purposes of section 98 of the Employment Rights Act 1996 . The ET continued therefore to consider the question of fairness for section 98(4) purposes, observing that the Claimant’s case in that respect was that the decision was unreasonable because it amounted to an act of discrimination and/or the Respondent had failed to consider alternative employment.[10]Although the ET had agreed that the redeployment of the Claimant to a top floor post as part of the relocation exercise amounted to a failure to make a reasonable adjustment, it did not accept - given the Claimant’s acceptance of top floor work in 2012 - it was reasonable to require the Respondent to subsequently unpick arrangements made with staff by seeking to change the Claimant’s role for one elsewhere when there were no vacancies at the time of the decision to dismiss (see paragraph 90). Although the Claimant contended there were training and administration role vacancies for which she should have been considered, the ET did not accept these were suitable: she did not have the requisite experience; the training roles might still have required her to work on the top floor; and she had not previously applied for such posts so, by the time of the welfare review process, the ET did not consider the Respondent should have assumed the Claimant was seeking redeployment (paragraph 64). Specifically, by the time of the decision to dismiss the ET did not consider there were any vacancies into which the Claimant could have been transferred save the 20-hour ground floor position she had already rejected, notwithstanding it had allowed for the possibility of working overtime when available. That being so, the Respondent had reasonably concluded her preference was to leave (see the findings of fact at paragraph 65 and the conclusions at paragraphs 88 to 90).[11]As to the complaint that the dismissal was discriminatory, the ET concluded:
“92. … the claimant contends that she was subjected to a detriment because of something arising from the consequences of her disability. The detriment would be to have required the claimant to work on the top floor. The respondent did not do that but accorded the claimant an opportunity to take up the only vacancy it had. That reduction in hours is in our finding justified because it does, as the claimant submitted, have the aim of preventing the claimant sustaining injury or illness at work. For that reason the complaint in relation to dismissal fails because dismissal only occurs when the claimant refuses that opportunity.”
The Appeal: Submissions, Discussion and Conclusions[12]The first ground of appeal takes issue with the overly limited finding on detriment as apparently expressed at paragraph 82 of the ET’s Reasons (see above). As the Claimant observes, the term “detriment” is of wide import and can include physical discomfort and disadvantage as well as economic disadvantage ( Ministry of Defence v Jeremiah [1979] 3 All ER 833). On the ET’s findings the detriment suffered by the Claimant was not limited to the reduction in hours but included (I paraphrase) the exacerbation of her asthma while working on the top floor and, ultimately, her dismissal.[13]As recorded above, in its response to the EAT under the Burns/Barke procedure, the ET has clarified that it had not intended this to amount to a finding as to the only detriment suffered by the Claimant, and it referred back to its findings at paragraphs 79 and 80, that the move to the top floor was unfavourable treatment because of the exacerbation caused to the Claimant’s asthma.[14]For its part, in the light of the ET’s response under the Burns/Barke procedure, the Respondent submits that:
“… the appeal itself is almost ‘academic’ and does not take either party much further in terms of what will be considered at the Remedy Hearing; and how that will be impacted …”
[15]The Claimant says that although no limitation was intended, the fact is that the finding on detriment at paragraph 82 is unnecessarily limited and the EAT should allow the appeal on this basis and remit the issue to be determined at the Remedy Hearing.[16]I am not sure that it is a strictly necessary step given the ET’s response to the EAT. If I set aside paragraph 82, however, I can replace it with a finding that the detriments suffered by the Claimant were as set out by the ET at paragraphs 79, 80 and 82 of its Reasons, and those will be the matters to which it would have regard at the Remedy Hearing. I so direct.[17]By her second ground of appeal the Claimant objects that the ET failed to determine part of her reasonable adjustments claim, that during the period September 2012 to August 2013, redeployment would have been a reasonable adjustment (see the record of that issue at paragraph 4 of the ET’s Reasons). More specifically, in her submissions to the ET the Claimant relied on particular vacancies, including a vacancy in pre-retail. Whilst the ET rejected the Claimant’s case on other roles (paragraph 65), it failed to address this particular vacancy, which was located on the ground floor and which the Claimant had performed between December 2010 and September 2012. Failing to address the Claimant’s case in this respect amounted to an error of law ( Greenwood v NWF Retail Ltd [2011] ICR 896 ). The ET had also failed to address the point under the Burns/Barke procedure. Only one conclusion was possible: the Claimant had been placed at a substantial disadvantage as a result of the Respondent’s policy of giving priority to others for this role, and it was a reasonable adjustment to enable her to return to a pre-retail position on the ground floor. The ET’s conclusion on this aspect of the claim - to the extent it had rejected this part of the reasonable adjustments claim - should be set aside and substituted with a finding that the Claimant succeeded in this regard.[18]In its written submissions for the Appellant-only Preliminary Hearing before HHJ Richardson, the Respondent had observed that this vacancy had not specifically formed a ground of complaint after the narrowing of the issues by the ET at the beginning of the Full Merits Hearing. In any event, the pre-retail opportunities were addressed by the ET in broad terms when it found that, after she had accepted a move back to the top floor in September 2012, the Respondent was not to be expected to unpick the arrangements made with other staff to move the Claimant into a pre-retail post. Furthermore, the Claimant had suffered a number of other ailments unrelated to her asthma that caused her to be absent from work and prevented her from performing her role and that was also relevant.[19]As HHJ Richardson observed in allowing this matter to proceed to a Full Hearing, the specific vacancy in pre-retail was referenced in the Claimant’s written submissions, which cross-referred to the relevant evidence on this. It is there recorded:
“13.4. In fact, it is common ground that there was: a) At least 1 vacancy in pre-retail, which was offered to an employee from Reader’s Digest (see the oral of evidence [sic] of both Mr Colbourne and Mr Carter). …”
[20]The ET did not, however deal with that point. As the Claimant was putting the case, this was a vacancy - not a job already being undertaken by another member of the Respondent’s staff - so it is hard to see how it is addressed by the more general findings on alternative roles. The ET has, moreover, already had the opportunity to address this issue under the Burns/Barke procedure but has failed to do so. All that said, I am also faced with the ET’s finding at paragraph 65 that there were no vacancies by the dismissal stage and also by its finding that the Claimant did not apply for vacancies advertised by the Respondent.[21]Mr Bayne counters that that reasoning was specifically referring to the other posts and the suggestion in the ET’s reasoning that the Claimant had effectively already determined that she wanted to leave could not apply to this particular vacancy as it arose in March 2013. It was not a matter on which the ET could be assumed to have made any finding; certainly, none could be inferred from its other conclusions. Moreover, Mr Bayne urges that the agreed Note of Evidence before the ET means that I have enough to reach my own conclusion on this.[22]Somewhat reluctantly, I do not think that is right. I would need to first be satisfied on the evidence that only one conclusion was possible, and that is always hard on the basis of a note of the evidence (even if agreed and reasonably comprehensive). I would, further, need to then carry out an assessment, which should be a matter for the ET. Although I can see the strength of the Claimant’s position, I do not think I can conclude that only one answer would be possible; there is simply not enough information before me. In my judgment, the right course is for me to allow this ground of appeal and remit this issue to be determined by the ET, hopefully at the outset of the Remedy Hearing on the basis of the agreed Note of Evidence (albeit possibly allowing for further submissions from the parties if considered appropriate).[23]Similarly, by her third ground of appeal the Claimant objects that the ET failed to determine a further aspect of her claim, this time in respect of her claim that her dismissal had amounted to unfavourable treatment arising in consequence of her disability under section 15 EqA (an issue again recorded by the ET at paragraph 2). Again, the ET failed to properly address that claim, the closest it came being at paragraph 92 (see above).[24]I agree with the Claimant in this regard: paragraph 92 addresses this issue as a potential detriment and fails to consider it as a separate head of claim under section 39(2) EqA . As dismissal was due to the Claimant’s inability to carry out her role on the top floor, the question for the ET was whether dismissal was a proportionate means of achieving a legitimate aim.[25]Mr Bayne observes that the burden of proof on justification for these purposes lay firmly on the Respondent but contends that it adduced no evidence on the point.[26]The Respondent may not have adduced contemporaneous evidence, but that would not be the end of the matter. This issue was for the ET to determine, applying an objective test and subjecting the matters relied on by the Respondent to appropriate scrutiny and carrying out the requisite balancing exercise (following the guidance recorded at paragraph 7.4 of Mr Bayne’s helpful written submissions before the ET). The difficulty is that the ET has simply not performed this exercise because it has not properly engaged with the point.[27]In these circumstances, can I assume - the burden of proof having been on the Respondent - that the conclusion must go in the Claimant’s favour? Having regard to the Respondent’s written submissions below (specifically at paragraph 6.1) and also noting the ET’s more general findings on matters potentially relevant to this question (at paragraph 92 and its preceding conclusions relevant to the decision to dismiss under other heads), I do not think I can assume that there would be only one answer. That being so, I must remit this to the ET. It is a question of assessment and balance for the ET and it must now undertake that process before it can move on to consider remedy. Again, I consider the evidence is complete. Apart from further submissions - if considered helpful - I would think the ET is in a position to resolve this question, and, again, I so direct. Costs[28]The Claimant has further applied for the fees (£1,600 in total) she incurred in lodging this appeal and pursuing it to a Full Hearing; her application being made under Rule 34A(2A) of the Employment Appeal Tribunal Rules 1993 (as amended). The Respondent anticipated such an application in its email to the EAT of 2 November 2015 indicating that it would not be attending but making the following observations/submissions:
“The Respondent notes that with regards to reimbursement of fees, the Employment Appeal Tribunal has a broad discretion and that it was unfortunate that the Burns / Barke responses were not due until after the Answer was needed to be filed; and it was therefore entirely appropriate for the Respondent to provide an Answer in the manner that it did, which was always going to be subject to the Employment Tribunal’s responses. The Respondent also conceded matters swiftly, and at the earliest opportunity, once it was able to understand the implications Burns / Barke responses [sic]. We also note that the Claimant (as is her right) appealed directly to the EAT, but without first seeking a review or a reconsideration of the Employment Tribunal’s Judgment; or involving us to seek a joint application for the same to seek clarity. This may have avoided the need for an appeal altogether.”
[29]As the Respondent has observed, the EAT has a broad discretion to make a costs Order in favour of any successful Appellant, in the sum of any fee paid. There is no requirement, in this respect, that the thresholds laid down under Rule 34A(1) need to have been crossed by a Respondent before such an award is made. Although costs do not simply follow the event in the EAT - and allowing that exceptions might need to be made in particular cases - the introduction of fees has changed the landscape, and there will be a general expectation that a successful Appellant will be entitled to reimbursement of her fees by a Respondent, certainly by a Respondent that has actively sought to resist the appeal.[30]In this case, the Respondent endeavoured to take a more pragmatic response. That, however, only really related to the first ground of appeal, which is the only matter dealt with by the Burns/Barke response. That left, on anybody’s case, two grounds of appeal, in respect of which the Respondent has made very little representation to the EAT but has effectively left it to the Claimant to pursue this matter if she was to obtain relief in respect of what were otherwise findings adverse to her. Thus it seems to me that, certainly in respect of the majority of her appeal, the Claimant was given no choice by the Respondent’s position but to pursue this matter to a Full Hearing and thereby incur these costs by way of fees. I will recognise, because it seems just to do so, the attempt the Respondent made to avoid at least part of the matter going to appeal, but, in my judgment, that does not justify reducing the award that I would otherwise make in full to the Claimant by anything more than £200. I therefore order the Respondent to pay costs to the Claimant in respect of her fees in the sum of £1,400.