APPEARANCES
| For the Appellant |
MR JAMES HOLMES-MILNER
(of Counsel)
Instructed by:
Messrs Hamers Solicitors
Waterside Business Park
Livingstone Road
Hessle HU13 0EJ
|
| For the Respondent |
MR HUMPHREY FORREST
(Solicitor)
Instructed by:
Humberside Law Centre
95 Alfred Gelder Street
Hull
East Yorkshire HU1 1EP |
HIS HONOUR JUDGE J McMULLEN QC
- This case is about disability discrimination and constructive unfair dismissal. We will continue to refer to the parties as Applicant and Respondent.
Introduction
- It is an appeal by the Respondent in those proceedings against a reserved decision of an Employment Tribunal sitting at Hull, Chairman Miss P A Molyneux, registered with Extended Reasons on 7 August 2002. The Applicant was represented by a representative of Humberside Law Centre, the Respondent by a solicitor. The Applicant claimed constructive unfair dismissal, disability discrimination and unlawful deductions from pay. The Respondent denied dismissal, denied discrimination and denied unlawful deductions.
- The essential issues were defined by the Tribunal in its Reasons as follows:
3 (1) "Whether the Applicant was disabled within the meaning of the definition under the Disability Discrimination Act 1995 ("the Act").
(2) Whether the Applicant's knee injury and consequential absence from work resulted from her disability, or whether it was a completely independent and unconnected injury.
(3) Did the Applicant receive less favourable treatment, and if so what was that treatment?
(4) If the Applicant received less favourable treatment, was this for a reason which related to her disability?
(5) If, prima facie, there was discrimination, can the Respondents justify such treatment within the statutory definition?
(6) Were the Respondents under a duty to make reasonable adjustments, and if they did not so can they justify such an omission?
(7) Whether the refusal by the Respondents to permit the Applicant to return to work and whether the failure to pay her even SSP during the period from 29 August – 29 September amounted to constructive dismissal.
(8) If the Applicant establishes that there was constructive dismissal, did she resign for a reason connected with the Respondent's breach of contract? Did the delay in resigning amount to a waiver of such breach and/or confirmation of the contract?
(9) Whether the Applicant was entitled to receive pay for the period 29 August – 29 September, and if so whether such should be at the SSP rate or normal salary."
It will be seen that from paragraph 3 (8) above two issues arise and thus it was that 10 essential issues fell for decision before the Employment Tribunal.
The Legislation
- The relevant provisions of the legislation are as follows:
(1) Disability Discrimination Act 1995:
5 "Meaning of Discrimination
(1) For the purposes of this Part, an employer discriminates against a disabled person if—
(a) or a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified.
(2) For the purposes of this Part, an employer also discriminates against a disabled person if—
(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified."
(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."
(2) Employment Rights Act 1996:
95 (1) "For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if)-…
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."
- Not cited to the Employment Tribunal or to us, but implicitly relevant in these proceedings are the Management of Health & Safety at Work Regulations 1999, of which Regulation 3 provides as follows:
3 "Risk Assessment
(1) Every employer shall make a suitable and sufficient assessment of –
(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and
(b) …for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions..."
The Decision
- The Employment Tribunal found that the Applicant's claims of unfair dismissal and disability discrimination each succeeded, together with his claim under section 13 of the Employment Rights Act 1996 for unpaid salary. Thus it upheld the Applicant's case on each of the issues which it had identified earlier.
The Appeal
- The Respondent appeals against the first two findings, pursuant to oral arguments addressed today by Mr Holmes-Milner on behalf of the Respondent who has stepped in at the last minute on account of the illness of the previously briefed Counsel and has adopted much of what the Skeleton Argument but has created his own instrument by way of his oral submissions to us on which we will base our judgment.
The Parties
- The Respondent makes doors at a factory in Hull. Attached to the factory is an open-plan office. The business employs up to 90 people. There are four full-time Administrators and two part-timers. The Applicant was employed by the Respondent as an Administrator from 25 September 2000 until the relationship ended by her resignation on 29 September 2001. Duties were entirely being based at the plant and included typing and other office duties,
- The Applicant was born on 25 June 1972. In 1993 she was diagnosed as having rheumatoid arthritis, affecting her wrist, hips and knees. At the time relevant to these proceedings she was a disabled person within the meaning of the Disability Discrimination Act 1995, as a result of that condition.
The Findings
- Prior to 23 July 2000 the Applicant had had a number of periods of absence, mainly attributable to her condition, but not exclusively. On 23 July 2000 the Applicant fell down stairs at her home. She attended the next day for work but was sent to hospital. She had partial tears of the cruciate and co-lateral ligaments in her right knee. She was treated with a fixed brace to prevent movement of the knee and discharged on crutches.
- On either 26 or 30 July the Applicant attended work thus accoutred. It was found uncomfortable for her to work at her work station and she went home of her own volition. She continued to be off work until 20 August 2000, covered by GP certificates. On that date she attended work and was sent home.
- The Respondent, who up to that time the Tribunal found had behaved commendably, commissioned a medical report from a Consultant Surgeon upon the Applicant's condition. The Consultant's report, upon whose language much of this case turns, recorded the history of the Applicant's condition, which included a previous injury to the right knee and noted the nature of the Applicant's employment as being comparatively static, not requiring lifting and not requiring to negotiate stairs or other obstacles. The Applicant was found four weeks post-injury to have pain on stressing the cruciate and co-lateral ligaments. The Consultant's opinion was as follows:
"She is currently not weight bearing and is reliant upon crutches. The knee brace does give significant support to the knee joint making a further injury unlikely. With her marked lack of mobility, it would be difficult for her to return to work unless special provision was made and she remained static at her desk. As she becomes less crutch dependant, over the next few weeks, she should be in a position to return to work."
- The Applicant remained off work until 29 August, by which time the report of the Consultant was in the hands of the Respondent and the Applicant's medical certification had ceased; in other words, the Applicant's license from her GP no longer obtained and she was ready, as she thought, to go back to work.
- On 31 August the Respondent sent its Consultant's report to her and refused to allow her to return to work. On 29 September 2000 the Applicant sent a letter of resignation and entered an Originating Application on 13 November 2000. Before delivering her resignation she had had the advantage of legal advice from the Law Centre.
- The Tribunal made specific findings in relation to each of the issues with which it was presented. Generally speaking, where there was a conflict it preferred the evidence of Mr Gravil, the relevant officer of the Respondent, who was an honest and sincere witness; whereas the Tribunal had concerns about some aspects of the Applicant's evidence. No complaint is made by either party about the depiction of the evidence in those general terms and indeed the finding by the Tribunal in general is supported by cogent reasoning in particular.
- The Tribunal noted that the letter of instruction to the Consultant had not been disclosed.
- The Tribunal found that the Applicant was disabled, which included the effect of the lesion caused by her falling down the stairs. It decided that less favourable treatment was accorded by the Respondent in its failure to permit her to return to work and in failing to pay her, as it put it "even SSP" with effect from 29 August 2001 and yet keeping her within employment.
- As Mr Humphrey Forrest, who appears for the Applicant today put it, that was an intolerable position for anybody to be in. She could not return to work, the employer was not paying her and she could claim no benefits. The Tribunal found that the Respondent was aware that the Applicant suffered from arthritis and should have made further enquiries about the origin of any of her subsequent sequelae.
- The Tribunal did not address one issue which we have cited above, that is, the duty to make adjustments, since it became unnecessary for it to do so in the light of its findings and no submissions have been made to us today upon that subject. The Tribunal decided that the Respondent had failed to justify its decisions about return to work and pay. It also decided that the Applicant had been entitled to rely on both those matters when she decided that she would resign.
The issues
- There is now no question about the delay between her decision and her resignation letter. The sole issue is whether she was entitled to act as the innocent party to a repudiation of her contract of employment. The Tribunal upheld her claim for unlawful deductions from pay and no argument has been addressed to us today upon that subject.
- The Tribunal directed itself by reference to the relevant provisions of the Employment Rights Act 1996 and the Disability Discrimination Act 1995 (cited above) and, what we hold to be the leading authorities, which are Clark v TDG Ltd t/a Novacold [1999] IRLR 318 CA, HJ Heinz Co Ltd v Kenrick [2000] ICR 491 EAT, Jones v The Post Office [2001] IRLR 385 and Western Excavating ECC Ltd v Sharp [1978] ICR 221 CA.
The Respondent's Case
- The Respondent submitted that the Employment Tribunal had erred in law in respect of two principal matters. First, that it had failed to disengage the Applicant's admitted disability from the fall down the stairs causing a lesion to her ligaments. Secondly, the Tribunal had failed properly to construe section 5 (1) and 5 (3) of the Act and had failed to apply relevant authorities as now submitted to us today.
- In respect of justification, it was contended that the Employment Tribunal had substituted its own judgment for that of the employer, in breach of the doctrine in Jones and had failed properly to analyse the content of the Consultant's report and the nature of the risk assessment undertaken by Mr Gravil.
- It was also contended that the Tribunal had failed to give an answer precisely upon the question of constructive dismissal where the failure by the employer consisted of both a failure to provide work and a failure to pay. Essentially the unfair dismissal question was tied up with the justification question and requires further examination.
The Applicant's Case
- On behalf of the Applicant it is contended that the Employment Tribunal correctly addressed the relevant issues, although in at least one place in its decision there may be some infelicity of wording. That, however, does not affect its substance. The Tribunal also correctly approached the issue of causation and applied its self-direction in Jones correctly to the facts of the case.
- As to unfair dismissal, the Applicant had no option given she was not being allowed to work, was being regarded as in employment and yet not being paid.
Considerations
- We reject the arguments of the Respondent and have decided that the appeal should be dismissed. We uphold the submissions of the Applicant. We will turn to the issues and the authorities in turn.
(1) Disability
- Mr Holmes-Milner referred us to the passage in Harvey on Industrial Relations and Employment Law at paragraph 1347 and 1348 dealing with the question of less favourable treatment. He introduced this subject to us by reference to 1348 where the learned authors say this:
"By analogy with the law relating to dismissal on the ground of pregnancy, O'Neill v (1) Governors of St Thomas More RCVA Upper School (2) Bedfordshire County Council [1996] IRLR 372 (EAT) it would seem likely that the connection required here is to be determined by consideration of all the circumstances. It will not be necessary for someone complaining of discrimination to show that his disability was the only reason, provided it was an effective cause of his less favourable treatment. Whether or not it was a reason probably involves an investigation of the alleged discriminator's state of mind at the time."
- The authors at paragraph 1347 indicate an approach to this question, set out in London Clubs Management Ltd v Hood [2001] IRLR 719. It was determined in that case that the Applicant had not been discriminated against when his employers refused to make payments of sick pay to him on account of his absence as a result of being a disabled person, when he was the victim of a blanket policy denying such payments to the whole of the workforce. In that case the EAT, presided over by Ms Recorder Slade QC, decided that the legally effective reason why the Applicant was not paid sick pay was identified as not relating to his disability but rather to the employer's policy on sick pay.
- On behalf of the Respondent it is contended that we should follow that authority in preference to a subsequently decided judgment of the EAT, Mr Recorder Hand QC and members, delivered on 18 February 2003 in Shrubsole v The Governors of Wellington School EAT/328/02/DA.
- The EAT in that case had embarked upon an examination of the judgment of Mummery LJ in Clark and the requisite connection between disability and the reason for treatment. The Recorder said this:
20 "Thus there is nothing in Clark, which bears directly on the interpretation of:
"..for a reason which relates to the disabled person's disability...".
It is worth noting, however, that at paragraph 57 Mummery LJ recites the appellant's argument in these terms:-
"A contrary interpretation is submitted on behalf of Mr Clark. His argument is that "that reason" refers only to the first three words of the paragraph - "for a reason". The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression "which relates to the disability" are words added not to identify or amplify the reason but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able bodied person) to complain of his treatment. ..."
21 It is clear from the succeeding paragraphs of the judgment (paragraphs 58 to 72, particularly paragraph 63) that the court accepted this interpretation. We think it would be helpful for Employment Tribunals to remind themselves, when considering whether there has been less favourable treatment of a disabled person:
"... for a reason which relates to the disabled person's disability ...",
that those words are there to
"...specify a link between the reason for dismissal and ...[the]...disability ...".
Thus understood, it becomes more obvious that the relationship between the reason for the dismissal and the disability need not be direct. To find that the employee has been dismissed because of their disability would axiomatically place the employer in breach of sections 4(2) and 5(1) (a) of the DDA but to conclude that the reason for dismissal was not the disability does not mean that the employee's case can be rejected without further inquiry; in such a case, it is then necessary to ask whether the reason for dismissal has a relationship to the disability in the sense that it is linked to it."
Mr Hand's Appeal Tribunal does not appear to have had drawn to its attention the judgment in O'Neill, nor was it drawn to Ms Slade's in London Clubs Management.
- In our judgment, the correct analysis is that set out in O'Neill and implicitly followed in Shrubsole, so that we are looking for some form of connection. We do not regard London Clubs Management as being of assistance in this case.
- It will be recalled that Mummery LJ and the EAT decided in O'Neill, which was a case about pregnancy dismissal, that the question of whether the Applicant's dismissal was on account of her pregnancy was not to be answered by having regard to the subjective motives of the School Governors, but by an objective test of causal connection involving consideration of the surrounding circumstances. Other factors in the circumstances surrounding the pregnancy relied on by the Employment Tribunal as the reason for the Applicant's dismissal were causally related to the fact that the Applicant was pregnant and accordingly it was not possible to say that the ground for her dismissal was anything other than her pregnancy and that by dismissing her the employer had behaved unlawfully.
- Applying those authorities to the facts of this case, we reach the conclusion that the Tribunal had reached the correct conclusion. The issue for it to resolve was whether the Applicant was disabled at the time when her dismissal was effective, or at least at the end of August when the first detriment occurred to her.
- In our judgment, this matter is made pellucid by the second Consultant's report adduced before the Employment Tribunal after the dismissal. This is an opinion of Mr Devlin dated 6 March 2002, who concluded that she had rheumatoid arthritis and said this:
7 "It is clear that she has had long-standing knee pain and that the knee pain is a consequence of her rheumatoid arthritis. It is clear that the knee is unstable and that this precipitated her fall downstairs and that therefore the fall and the knee injury is related to Miss Pickering's existing condition of rheumatoid arthritis. I therefore conclude that the knee injury was caused by her existing condition of rheumatoid arthritis."
That report was jointly commissioned and is not challenged in any way. It is the clearest possible evidence upon which the Tribunal could reach a conclusion.
- Thus, applying O'Neill, the Applicant had a disability. It made her knee weak. As a result of that weakness she fell down the stairs and as a result of that was treated unfavourably by her employer. That chain of causation might well commend itself as being one of fact, but if we are wrong and it really gives of a legal analysis, it is a perfectly cogent legal explanation. The legally effective cause, in other words, of the Applicant's unfavourable treatment, as it is accepted to be, was the rheumatoid arthritis, by reason of which the Applicant was a disabled person.
- Thus the Tribunal resolved the first principal issue in the case in the Applicant's favour, based upon clear evidence and correct self-directions. There is no error.
(2) Justification
- We then turn to justification. The principal authority cited to us and to the Employment Tribunal is Jones and it is accepted that the Tribunal correctly addressed itself in a paragraph which appears unnumbered on page 12 of its reasons. It is contended it failed to apply Jones.
- It will be recalled that in Jones the Court of Appeal had criticised the role of an Employment Tribunal in substituting its view of what justification there could be in relation to a disabled person. Pill LJ said this:
25 "…In order to rely on s.5(3) it is not enough for the employer to assert that his conduct was reasonable in a general way; he has to establish that the reason given satisfies the statutory criteria. The Respondent asserts in this case that the risk arising from the presence of diabetes is material to the circumstances of the particular case and is substantial. Where a properly conducted risk assessment provides a reason which is on its face both material and substantial and is not irrational, the Tribunal cannot substitute its own appraisal. The Employment Tribunal must consider whether the reason meets the statutory criteria; it does not have the more general power to make its own appraisal of the medical evidence and conclude that the evidence from admittedly competent medical witnesses was incorrect or make its own risk assessment.
26 The present problem will typically arise when a risk assessment is involved. I am not doubting that the Employment Tribunal is permitted to investigate facts, for example as to the time-keeping record of the disabled person or as to his rate of productivity, matters which would arise upon some of the illustrations given in the Code of Practice. Consideration of the statutory criteria may also involve an assessment of the employer's decision to the extent of considering whether there was evidence on the basis of which a decision could properly be taken. Thus if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence, or was an irrational decision as being beyond the range of responses open to a reasonable decision-maker (a test approved by Sir Thomas Bingham MR in a different context in R v Ministry of Defence ex parte Smith [1996] IRLR 100 at 102), the Employment Tribunal could hold the reason insufficient and the treatment justified."
- The two essential pillars of the Respondent's case relate to those observations of Pill LJ. They are that in this case the medical evidence of the Consultant did not support the construction put upon it by the Tribunal and that there had been more than a risk assessment; there had been an actual trial. We will deal with those issues in turn.
(a) The Consultant's opinion
- The Tribunal decided that the meaning to be attributed to the Consultant's opinion was that the Applicant was not prevented from returning to work, provided the matters set out in his opinion were observed. The alternative approach, taken by Mr Gravil, was rejected. Mr Gravil's approach was that until the Applicant was free of crutches she would not be in a position to return to work.
- It seems to us that the Tribunal's construction was right and Mr Gravil's was far too pessimistic and did not bear out the Consultant's report. No attempt was made to go back to the Consultant if there were a doubt about this to enquire of him further. In any event, the view that we take of the report is that the Applicant could come back to work provided that special provision were made and she remained static. In addition, over time, irrespective of such provision, as she became less crutch-dependant she could go back to work anyway. Thus, we consider there is substance in the Tribunal's criticism of the Respondent in relation to this medical report.
- It must be said, contrary to the approach in Jones, that there was no conflicting medical evidence in the present case.
(b) The risk assessment
- We have cited from the Management of Health & Safety at Work Regulations 1999. These require a risk assessment. It seems to us that something more is required than that somebody form a view in their own mind. This is the way the Tribunal itself put it (see page 13).
"One aspect of a risk assessment, in our judgment, is canvassing the opinion of the person whose risks are being assessed. It must be clear in this case that the Applicant was robust and firm and determined to get back to her work. She came in July immediately after the accident and came again in August. She is to be given credit for that perseverance. But she was not asked herself about how she felt at the end of August and all that happened was that the Applicant tried in July but found it uncomfortable and when she returned in August a visual observation by Mr Gravil was all that informed his judgment…"
- Thus the Tribunal held that there had not been a proper risk assessment and so, combining both those matters, the restrictions which the Tribunal found were imposed upon it by Jones and that judgment (se Pill LJ above) did not apply in the present case.
- The Tribunal also criticised Mr Gravil for refusing to recognise that injuries improve over time. That we consider to be a rather harsh judgment on him since the Applicant, according to how she presented to the Consultant, appeared in much the same pain one month after the injury. Nevertheless, its other criticisms based upon the construction of the medical report (in the context in which it was received at the workplace) and on the risk assessment such as it was, enabled the Tribunal to take a view which did not offend the prinicple in Jones. In other words, there was not a properly conducted risk assessment and nor did the Tribunal get involved in substituting its judgment about the medical matters.
- It decided, correctly we hold, that the Respondent had failed to justify on those two grounds its refusal to have the Applicant back at work and to pay her.
(3) Unfair Dismissal
- Applying the test in Western Excavating (see page 16, paragraph 13 (1)) the Tribunal found that the failure to permit the Applicant to return to work and to pay her even her SSP from 29 August constituted a repudiation.
- We have been referred to Beveridge v KLM UK Ltd [2000] IRLR 765 by Mr Forrest, where it was held by the EAT, Lord Johnston presiding with members in Edinburgh that
"…[a] Tribunal had erred in holding that since there was no express term in [a] contract of employment which required the employers to pay…wages while they awaited confirmation from their medical adviser that [the Applicant] was fit to resume work, the employer's failure to pay…during the…period when, although [the Applicant] was willing to work and had been certified by her own doctor as fit to do so, [the Respondent] refused to allow her to return, did not amount to an unauthorised deduction from wages.
An employee who offers her services to her employer is entitled, at common law, to be paid unless a specific condition of the contract regulates otherwise."
- It is also clear that a failure to make payment pursuant to a deliberate withholding decision constitutes a fundamental breach of the contract: see Cantor Fitzgerald International v Callaghan [1999] IRLR 234 CA.
- In the Notice of Appeal it was to be contended that there was no obligation on an employer to permit an employee to work or to provide work to her. That argument appears not to have been raised at the Employment Tribunal and is not advanced on behalf of the Respondent today. It seems in any event a poor argument since the defence of the Respondent was that they were entitled in the circumstances presenting to them (that is, of the medical evidence and the risk assessment which we have discussed), together with the expiry of the Applicant's GP's medical certificate, to take both of the steps, i.e. to refuse to permit her back and to deduct pay.
- The criticism which is made is in respect of a failure to analyse properly those two issues. We disagree. Bearing in mind those two authorities it is clear to us that a failure to pay, or even to pay SSP to, a woman who is disabled, earning £10,000 a year, and who has been certified fit to return to work by her GP, is a fundamental breach of contract in its own right and we need say nothing about the matters connected to the other reason for refusing to permit her to return; that is, medical and risk assessment.
- We make that qualification in case we are wrong about our decision in relation to the DDA. In other words, notwithstanding that issue, the simple failure to make payments in the circumstances of this case, was sufficient to justify the holding by the Tribunal that the Respondent had repudiated the Applicant's contract.
- No issue arises about affirmation or delay.
Conclusion
- The Employment Tribunal reached the correct conclusions on the ten issues which the Tribunal had diagnosed as relevant to the decision and while thanking the advocates today for their succinct submissions, we dismiss the appeal.
