Ali v New College Manchester Ltd (Disability Discrimination) [2017] UKEAT 0154_16_2702
EAT
Ali v New College Manchester Ltd (Disability Discrimination)
[2017] UKEAT 0154_16_2702 · 2017-02-27
[41]“ 41. … the task for the ET was to ascertain whether, at the material times, Newport had actual or constructive knowledge of the s.1/Schedule 1 facts constituting Mr Gallop’s disability. The ET did not engage in that inquiry. It considered that Newport was entitled to deny relevant knowledge by relying simply on its unquestioning adoption of OH’s unreasoned opinions that Mr Gallop was not a disabled person. In that respect the ET was in error; and the EAT was wrong to agree with the ET.[42]This may perhaps seem a hard result, but I consider it follows from the terms of the legislation. The problem with certain types of disability, or claimed disability, is that it is only when eventually the ET rules on the question that it is known whether the claimant was in fact a disabled person. In the meantime, however, the responsible employer has to make his own judgment as to whether the employee is or is not disabled. In making that judgment, the employer will rightly want assistance and guidance from occupational health or other medical advisers.[43]That assistance and guidance may be to the effect that the employee is a disabled person; and, unless the employer has good reason to disagree with the basis of such advice, he will ordinarily respect it in his dealings with the employee. In other cases, the guidance may be that the opinion of the adviser is that the employee is not a disabled person. In such cases, the employer must not forget that it is still he, the employer, who has to make the factual judgment as to whether the employee is or is not disabled: he cannot simply rubber stamp the adviser’s opinion that he is not. ” 39. In McCubbin v Perth & Kinross Council UKEATS/0025/13, Lady Stacey presiding, it was further emphasised that the ET cannot simply stop at the stage of considering whether the Respondent was aware of the Claimant’s disability but needs to separately consider what the Respondent could reasonably have been expected to know; a failure to carry out that further exercise giving rise to an error of law. That said, in Jennings v Barts & The London NHS Trust UKEAT/0056/12, HHJ Hand QC presiding, it was held that whether or not an employer knows, or should have known, there was a disability is essentially a question of fact for the ET. Moreover, as the EAT observed when Gallop returned for further consideration on a second appeal ( Gallop v Newport City Council (No.2) [2016] IRLR 395 EAT) - the ET having again rejected Mr Gallop’s complaint of disability discrimination at the remitted hearing after his appeal had been upheld by the Court of Appeal - when required to look into the particular reasons playing on the mind of a specific decision maker, imputed knowledge will have no application (see paragraph 59 of HHJ Hand QC’s judgment in Gallop (No. 2) ). 40. As for the reasonable adjustments claim, the appeal relates to the correct identification of the PCP. In Carreras v United First Partners Research UKEAT/0266/15, I sought to offer guidance on this issue (by reference to the case-law) as follows: “31. The identification of the PCP was an important aspect of the ET’s task; the starting point for its determination of a claim of disability discrimination by way of a failure to make reasonable adjustments (see Environment Agency v Rowan [2008] IRLR 20 EAT, paragraph 27). In approaching the statutory definition in this regard, the protective nature of the legislation means a liberal rather than an overly technical or narrow approach is to be adopted (Langstaff J, paragraph 18 of [ Nottingham City Transport Ltd v ] Harvey [UKEAT/0032/12]); that is consistent with the Code, which states (paragraph 6.10) that the phrase “provision, criterion or practice” is to be widely construed. 32. It is important to be clear, however, as to how the PCP is to be described in any particular case (and I note the observations of Lewison LJ and Underhill LJ on this issue in FirstGroup plc v ] Paulley [ [2014] EWCA Civ 1573 ]). And there has to be a causative link between the PCP and the disadvantage; it is this that will inform the determination of what adjustments a Respondent was obliged to make.” 41. Whilst the burden of proof was not identified as giving rise to a specific ground of appeal by HHJ David Richardson, it is a matter that the Claimant has relied upon in support of her submissions, in particular in respect of her claim of direct discrimination; I bear in mind section 136(2) EqA , which provides: “ (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.” 42. Furthermore, when addressing the claim of direct discrimination, the Claimant relies on the Supreme Court’s judgment in R (E) v Governing Body of JFS [2009] UKSC 15 , in support of her contention that the motive of the putative discriminator is irrelevant. That is so, but I bear in mind that which was acknowledged in JFS , namely, that direct discrimination may take different forms: there will be cases where the reason for the treatment complained of is inherent in the act itself (as was the case in JFS ) and others where the act complained of is not in itself discriminatory but is rendered so by the discriminatory mental processes, conscious or unconscious, that led the putative discriminator to do the act (albeit, even then, the subject of the enquiry is the reason for the putative discriminator’s action, not their motive or intention; see Amnesty International v Ahmed [2009] ICR 1450 EAT).43. As for the approach to a complaint of harassment under section 26 EqA , there is no requirement for a comparator, although the conduct must be related to a relevant protected characteristic. That stands in contrast to the use of “because of” elsewhere in the Act , which is deliberate: the introduction of “related to” expressly marked a change from the earlier language of “on grounds of” the prohibited ground (successfully challenged in R (Equal Opportunities Commission) v Secretary of State for Trade and Industry [2007] ICR 1234 QBD as importing a requirement of a causative link, whereas EU law simply required a connection or association with the prohibited ground). Whether an employer’s conduct relates to the protected characteristic imports a broad test: the employer’s knowledge or perception of the characteristic is not conclusive, nor is the employer’s perception whether the conduct relates to a protected characteristic (see Hartley v Foreign & Commonwealth Office Services UKEAT/ 0033/15 at paragraphs 23 and 24). That said, context alone will not be sufficient: regard needs to be given to the conduct of those against whom the complaint has been made, asking whether their conduct is associated with the protected characteristic (see per the EAT, HHJ David Richardson, in Unite the Union v Nailard [2016] IRLR 906 ). Submissions The Claimant’s Case44. The Claimant first contends that the ET erred in law in focusing on irrelevant factors to determine the Respondent’s knowledge of disability - such as the name and legal status of her disability - instead of applying the correct legal test relating to the actual and constructive knowledge of the elements of disability: that is, knowledge of impairment, substantial effect on daily activities and whether long-term. Specifically, whilst referring to Gallop (see the ET at paragraph 3.2.4.6), the ET at no place referenced the correct test - actual or constructive knowledge - notwithstanding this had been raised in the Claimant’s submissions and was supported by the earlier ET Judgment on disability and by the Respondent’s own ET3. When addressing the question of knowledge, the ET did so from a purely subjective perspective (see paragraph 4.12) and failed to apply an objective test and to make separate findings of fact relevant to the question of actual or constructive knowledge.45. Turning to the second basis of challenge, the Claimant contends the ET erred in taking a narrow rather than broad approach to the PCP she had relied on - that of requiring her to perform her essential or full duties - which triggered the duty of reasonable adjustments. The broader approach was consistent with the guidance provided by Carreras and was how the Claimant’s case had been put below: her opening skeleton argument having identified that reasonable adjustments had been requested from January and July 2013, the PCP identified being the Respondent’s insistence that she perform all or the essential functions of her job.46. Third, the Claimant contends the ET misconstrued section 26 EqA by applying a narrow or causative test for the harassment claim, failing to apply the broad test required by the phrase “related to”; it wrongly focused on how the Respondent perceived the conduct rather than considering the Claimant’s perspective and failed to consider the overall environment created.47. Lastly, on the claim of direct discrimination, the ET had erred by departing from causation principles and focusing instead on the Respondent’s subjective motive as the reason why the Claimant was treated as she was and failing to consider unconscious discrimination. It had, further, used the term “unfavourable” rather than “less favourable”, which suggested the ET was confused as to the relevant legal test and failed to have regard to the question of comparison on which the direct discrimination claim was based; properly speaking, it should have appreciated that at least on certain aspects of the Claimant’s complaint the discrimination was inherent in the matters complained of. The Respondent’s Case48. The Respondent observes that the ET determined some 56 separate allegations over a lengthy Full Merits Hearing. The Claimant’s complaint was originally based on a purported disability of depression. It was subsequently held that the disability was fibromyalgia, although this was first mentioned in correspondence after the claim had been lodged, and the ET found that the Claimant did not inform Mr Basha of this condition (see paragraph 2.13). More specifically, the actual finding of the ET at the Preliminary Hearing stage had only been that the Claimant suffered from fibromyalgia aggravated by stress; there was no finding that stress per se amounted to a disability. Further, the ET had expressly found the Claimant had continued to attend work, “ giving away nothing to her colleagues ”, and that Mr Basha: “2.13. … was given no reason to consider that she might have been [disabled] until the claimant specifically referred to disability in later written grievances.”49. The question for the ET was: what was in the Respondent’s mind at the relevant time? ( Gallop (No. 2) at paragraph 59). In this case, it had been entitled to conclude that Mr Basha had no knowledge of the Claimant’s disability, a finding of fact ( Jennings at paragraph 49). In any event, to the extent the ET erred in this regard, the question of knowledge might have been relevant to 14 allegations of direct discrimination, each of which was individually considered by the ET and in each case it had found that the Claimant had failed to establish a prima facie case. It might also have been relevant to five allegations of reasonable adjustments, but the ET had found there was no PCP for three of these, that there was no PCP to put a disabled person at a substantial disadvantage for one and that the last was not proven. To the extent relevant to the harassment complaint, there were 37 separate allegations, each, again, being considered separately by the ET, which found that 8 incidents had occurred but did not amount to harassment, 2 allegations were considered in the alternative, and 29 were simply not made out.50. Turning to the second ground, this related to the PCP addressed by the ET as follows: “4.22. The practice of the respondent insisting that the claimant “returns to work to perform all functions of her job” …”51. The Respondent did not accept that this incorrectly set out the PCP relied on and addressed by the parties: the PCP had been taken from the Claimant’s Further Particulars, some of which had not been pursued (see the reference in the ET’s Judgment at paragraph 2.1(1)); the ET did not deal with the PCP of requiring the Claimant to deal with all of her essential duties because it had not been raised as an issue before it.52. The third ground related to the harassment complaint. There were at most only 8 matters out of 37 allegations made where the factual inquiry turned on the perception of the Claimant. It was, however, apparent that the ET was fully cognisant of the Claimant’s perspective but was equally entitled to subject that to a test of reasonableness when assessing the effect of the treatment complained of. Moreover, the conduct had to be related to the relevant protected characteristic; here the ET had found the matters of which the Claimant complained were not related to her disability but to her unacceptable conduct and performance.53. Lastly, by the fourth ground the Claimant complained of a confusion of motives and objectives in the ET’s determination of her complaint of direct discrimination. Accepting that the ET referred to the Respondent’s objective at paragraph 4.3, that was the only reference; otherwise, the focus was firmly on the reason for the Respondent’s conduct. This was not a case where discrimination was inherent in the treatment complained of, and the ET had been entitled to find the Claimant had not discharged the burden of proof upon her; in any event, it had focused on the Respondent’s reason for the treatment in question and was satisfied it was for a non-discriminatory reason: it related to her conduct and performance, not her disability. Discussion and Conclusions54. The first question raised by the appeal asks whether the ET erred in its consideration of the state of the Respondent’s knowledge. It was common ground that this was at least potentially relevant to particular aspects of the direct discrimination, reasonable adjustments, and harassment claims (in respect of the reasonable adjustments claim, the point is expressly raised by paragraph 20, Part 3 of Schedule 8 of the EqA , but Mr Mitchell has accepted it could also be relevant to a number of other complaints made under other headings). There is no dispute that the ET made findings as to the Respondent’s actual knowledge, but the Claimant says there was sufficient arising from what the Respondent accepted it had known to provide the foundation for constructive knowledge. She contends that the ET failed to identify this because it failed to address this separate objective question and thereby erred in law; further, it focused on the label to be attached to her disability rather than the constituent elements.55. I can see that the ET’s reasoning on this point is expressed shortly and some criticism could be made of the failure to specifically set out the two stages identified in cases such as McCubbin , although I suspect that it is a criticism rather easier to make at appellate level when so many of the issues have fallen away and the questions of law more precisely identified. In any event, having regard to the entirety of the reasoning, I am satisfied that this experienced ET did not lose sight of the twofold nature of the test it had to apply. Paragraph 2.13 sets out the relevant findings of fact, which go both to the ET’s assessment of what the Respondent was aware that it knew and the question whether it might reasonably have been expected to know more (and, in saying that, I do not accept that the ET solely had regard to the label to be attached to the condition affecting the Claimant; rather, it had regard to the facts on the ground, the impact on the Claimant and how that might have caused the Respondent to be aware of any disability or - as the ET found - not). In any event, I do not read the ET’s Judgment on any of the Claimant’s complaints of discrimination as dependent upon a finding that the Respondent did not know of her disability. That was seen as part of the relevant background in some instances - for example, in determining Mr Basha’s purpose when considering the harassment complaint, albeit that the ET went on to consider the effect of the action in question in any event - but the ET did not reject any of the complaints made because the Respondent lacked the requisite knowledge; it went on in each instance to consider the merits of each complaint made.56. Considering then the separate points raised, because it most obviously follows on from the knowledge issue, I turn first to the reasonable adjustments claim and the Claimant’s contention that the ET adopted too narrow an approach to the PCP of which she was complaining. Mr Mitchell has explained how the PCPs relied on had been identified: these were the PCPs at paragraphs 7.3 to 7.6 and 7.10 of the Claimant’s Further Particulars of her case (see the ET’s record at sub-paragraph (1) of paragraph 2.1 of its Reasons). The Claimant complains that the ET failed to recognise the PCP that she returned to work to perform all of the functions of her role was a complaint that she was being required to carry out the essential functions of her role. She says that this - the PCP that she return to work to perform all or all of the essential functions of her role - was comprehended by her complaint at paragraph 7.2 of her Further Particulars (i.e. that she had to return to work to “ perform all functions of her job ”).57. Recognising, as I did in Carreras , that an ET should be careful not to take too narrow or technical an approach to the definition of a PCP - allowing for a real world construction of the complaint being made by the employee rather than subjecting it to an approach such as would be appropriate in construing a statutory provision - I cannot see that the ET here erred. It is important to be clear as to the PCP complained of - that will impact upon the rest of the elements of a reasonable adjustment complaint. The ET was here entitled to take the PCP from the Claimant’s Further Particulars, and its reading of the way in which this complaint had been put entirely accords with common sense. Although the specific paragraph rejecting that PCP is expressed shortly, I read it (as I am bound to do) against the background of the ET’s earlier detailed findings of fact and in the context of its earlier conclusions. Doing so, it is apparent that the ET was clear that no PCP had been placed on the Claimant requiring her to perform the entirety of her role; indeed, far from it: the Respondent, on the ET’s findings, had made reasonable adjustments by reducing her work and the requirements made of her, which was precisely part of her complaint in other respects. For completeness I note that the ET’s finding in respect of knowledge - constructive or otherwise - would not impact upon this conclusion: the ET tested the PCP without relieving the Respondent from liability due to absence of requisite knowledge. Returning to the point raised by the appeal, however, this is not a case on all fours with Carreras . Rather, it seems to me that, having lost on the PCP she advanced below, the Claimant now seeks to reframe her case to avoid the ET’s finding adverse to her. That is not a permissible basis of challenge, and I dismiss that ground of appeal.58. I turn next to the challenge relating to the ET’s rejection of the harassment case. Again, I bear in mind the strictures upon me to take the ET’s findings as a whole, not to adopt an overly pernickety approach to its conclusions and not to take one paragraph or sentence out of context but to see all in the round, stepping back to appreciate the entirety of the picture painted by the full Judgment. Doing so, I allow that the ET had regard in places to Mr Basha’s knowledge, but, as I have observed, that was relevant to its finding as to his purpose. The ET did not, however, stop there but went on to consider the question of effect and, in so doing, it kept in mind both the Claimant’s perspective - to which it had detailed regard when making its primary findings of fact - and the overall environment created by the various interactions of which complaint was being made. The ET was, however, entitled to test the effect of the conduct complained of by what was reasonable in the circumstances. Doing so - and, again, for the reasons explained more fully in its detailed findings of fact - the ET was in almost all cases clear that it would simply have been unreasonable for the matters in question to have the effect complained of. In reaching that conclusion, the ET was entitled to have regard to the context in which these matters took place. Far from failing to have regard to the overall environment, I am satisfied it was that which assisted the ET in its conclusion as to what was reasonable. It reached permissible conclusions in this regard that are not susceptible to challenge on appeal.59. As for those cases where the ET found relevant effect, I am satisfied that it further asked itself whether the conduct in question was related to the Claimant’s protected characteristic; disability. Whilst the reasoning follows on from the ET’s consideration of purpose, I do not read its conclusion on whether the conduct was related to disability as confusing this with a test of causation (see for example how it expresses it at paragraph 4.23). The ET did not fall into the trap of applying too narrow a test. Its conclusion that the conduct was not related to disability was derived from its very clear findings as to the context to which Mr Basha was responding and of which he and the Claimant were plainly aware. The Claimant was, as the ET found, behaving unreasonably, shouting and being rude to Mr Basha and others and threatening to resign; it was that to which the conduct in question related, not her disability.60. Finally, I turn to the complaint about the ET’s approach to the direct discrimination claim. Whilst there was a reference to legitimate objectives within the ET’s reasoning, again it would be wrong for me to pick on this as indicative of an erroneous approach when the entirety of the reasoning makes clear the ET kept firmly in mind the correct test it had to apply. The objectives it referred to were part of the relevant background. Although the Claimant argues that in certain instances the treatment to which she was objecting was inherently discriminatory (per JFS ) I do not accept that was so. Specifically, her suspension was, on the ET’s finding, because of her challenging conduct; it was not inherently due to her disability. More broadly, the ET was clear as to the causative reason for the Claimant’s treatment, which was entirely unrelated to her disability (see for example how it puts it at paragraph 4.2). Although at places the ET used the language of “unfavourable” treatment rather than “less favourable”, that could only have been in the Claimant’s favour: it caused the ET to go straight to the question of explanation, as if the burden of proof had shifted, rather than getting hung up on questions of comparison. In any event, the ET certainly did not fail to appreciate the comparative exercise required of it. Again, taking the reasoning for the conclusions along with the ET’s primary findings of fact, I am satisfied that no error of law arises, and this ground is also dismissed.61. For all those reasons, I dismiss the appeal.