Appeal No. UKEAT/0085/11/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At
the Tribunal
On
2 September 2011
Judgment handed down on 24 January 2012
Before
HIS
HONOUR JUDGE DAVID RICHARDSON
MR D BLEIMAN
MR D G LEWIS
MR
N ROBERTS APPELLANT
NORTH
WEST AMBULANCE SERVICE RESPONDENT
Transcript of Proceedings
JUDGMENT
HIS HONOUR JUDGE DAVID RICHARDSON
1.
This is an appeal by Mr Nathan Roberts
(“the Claimant”) against a judgment of the Employment Tribunal sitting in Manchester (Employment Judge Slater presiding) dated 23 July 2010. By its judgment the
Tribunal held that his complaints of unfair dismissal and disability
discrimination were not well founded. These complaints were brought against
his former employer the North West Ambulance Service NHS Trust (“the Respondent”).
2.
At a hearing under rule 3(10) of the Employment
Appeal Tribunal Rules 1993 one ground was permitted to proceed to a full
hearing. This ground concerns the Tribunal’s approach to the question whether
the Respondent failed to make reasonable adjustments for the Claimant, contrary
to section 4A of the Disability Discrimination Act 1995.
The background facts
3.
The Claimant was at all material times a
disabled person for the purposes of the Disability Discrimination Act 1995.
He suffered from a psychiatric condition, described in one medical report as
social anxiety disorder. He was employed by the Respondent as an emergency
medical dispatcher between 18 January 2008 and 1 January 2010 when he
resigned. He disclosed his disability (in layman’s terms) when he was
appointed.
4.
The Claimant worked in a control room
with other medical dispatchers. There were 24 work stations in the room. The
dispatchers “hot-desked” – that is to say, they took any available work station.
The dispatchers worked on a complicated shift system, with various changeover
times and overlapping shifts.
5.
Initially the Claimant chose to sit in
the middle row in the control room. But there came a time when, after periods
off work with anxiety, he said that he thought his anxiety may be due to his
location. He asked to sit in a less prominent location, at the back wall next
to a window. On 14 May 2009 the Respondent wrote a letter to managers asking
them to ensure that when the Claimant was on duty he was able to sit in that
position and if necessary to reserve the position for his arrival.
6.
As the Tribunal found, the preferred seat
was not always available for the Claimant when he arrived for work. In August
2009 an agreement was reached that a reserved sign should be put on the desk.
No reserved sign was ever put on the desk; as the Tribunal found, it would have
been impractical to reserve the seat for the shift prior to the arrival of the
Claimant because there was a need at busy times to use all or most of the seats
to accommodate staff working overlapping shifts.
7.
Thus, as the Tribunal found, supervisors
took proactive steps where possible to have the seat available for the Claimant
before he arrived; but sometimes the preferred seat was not available when he
arrived and supervisors moved the occupant. For example, the Tribunal found
that there were three occasions when the preferred seat was not available and
either the Claimant or a supervisor asked the occupant to move. The last of
these occasions was on 31 December, when a trainer and two people sitting in
adjoining seats moved. The Claimant began to write his letter of resignation
that very evening.
8.
We have outlined the facts relating to
the “hot desking” issue because it is central to this appeal. But it should be
borne in mind that the Claimant had another complaint relating to the lighting
of his workplace which was rejected by the Tribunal.
The Tribunal hearing and reasons
9.
The Tribunal heard the Claimant’s case
for 3 days in July 2010. The Claimant’s case was that the requirement to “hot
desk” was a provision criterion or practice applied by the Respondent which
placed him at a substantial disadvantage in comparison with non-disabled
people, and that the Respondent had not made reasonable adjustments.
10.
The Tribunal had some medical evidence
concerning the Claimant from consultant psychiatrists. There was a report by
Dr Dierckx dated 25 November 2009. The Tribunal mentioned this report in its
reasons, saying that it “included reference to avoidance and inducing others to
collude in this avoidance, such as concessions to allow the claimant to
function daily”.
11.
There was also a report by Dr Faith. She
was available for cross-examination, but the Claimant’s representative did not
wish to cross examine her. The Tribunal said that it “took note” of the
opinions she gave in that report. The Tribunal summarised her opinion in its
reasons. We will quote the concluding paragraphs of it. Dr Faith said:
“8.6 The, alleged, problems in coping with basic tasks arise
from his level of dependency on others and his entrenched behaviour pattern of
engaging others to collude in behaviours aimed at reducing stress on him by
allowing increasing avoidance of all responsibility.
8.7 In conclusion, the severity and highly complex long-term
nature of problems suffered by Mr Roberts would make any external adjustments
to his work environment impotent in managing his condition to allow him to
continue to work.
8.8 Avoidance behaviours entrench rather than relieve Social
Anxiety Disorder. Adjustments to the work environment, ultimately would prove
to be counterproductive.
8.9 I do not consider that any effective adjustment could have
been made which would have resulted in Mr Roberts being able to continue work
for North West Ambulance NHS Trust in the position of Emergency Medical
Dispatcher.”
12.
The Tribunal summarised relevant
provisions of the Disability Discrimination Act, to which we will turn in a
moment. On the question of hot-desking, its reasoning was as follows.
“55. In relation to the alleged policy of hot-desking, we
conclude that the respondent did not apply this provision, criterion or
practice to the claimant. The claimant was not required to sit in any place
other than his preferred seat. Therefore, the claimant was not put at a
substantial disadvantage by such a provision, criterion or practice and the
duty to make reasonable adjustments did not arise in relation to this alleged
provision, criterion or practice. This is enough for this part of the claim to
fail. However, we would comment, in addition, that we conclude that the
respondent acted reasonably in the steps it took to accommodate the claimant’s
wish to sit in his preferred location. It was not practicable to keep the seat
free prior to the start of his shift but the respondent took reasonable steps
to ensure that the seat was free by the start of the claimant’s shift. Where
possible, the supervisor took proactive steps to have the seat free before the
claimant arrived but, at worst, moved the person prior to the start of the
claimant’s shift so that he could start work at the beginning of his shift in
his preferred seat. We also note that the respondent had available a procedure
by which the claimant could operate a trigger mechanism and have time out when
feeling anxious.”
13.
The Tribunal’s finding that at worst
persons were moved “prior to the start of the Claimant’s shift” needs to be
read with earlier findings. It is plain from earlier findings by the Tribunal
that on a number of occasions the Claimant arrived to start work and found
other persons in his seat. In paragraph 55 the Tribunal meant, we think, that
the Claimant was not obliged to start his work as a medical dispatcher until
his desk was made available for him.
14.
Later the Tribunal said:
“62. We reach this conclusion without needing to rely on the
argument put by the respondent that, objectively, in the opinion of Dr Faith,
any adjustment would not have made any difference, accommodation making the
claimant’s disorder worse rather than better.”
15.
As to the claim of constructive unfair
dismissal, the Tribunal said:
“63. In relation to constructive unfair dismissal, we conclude,
on balance, that the claimant resigned because he genuinely perceived the
respondent had not taken steps he considered they should have done to
accommodate his condition. These steps included having his seat vacant on his
arrival and switching off the lights as he requested, but they also included converting
sick leave into holiday leave. We conclude that the respondent’s conduct did
not amount to a fundamental breach of contract. We conclude that there was no
breach of the implied duty of mutual trust and confidence. The respondent
acted reasonably in trying to accommodate the claimant’s perceived needs.”
The legislation
16.
At the relevant time the law concerning
disability discrimination was contained in the Disability Discrimination Act
1995. This Act has now been repealed and replaced by the Equality Act
2010; but it is the 1995 Act with which we are concerned.
17.
Section 4A(1) provided:
“4A Employers: duty to make adjustments
(1) Where -
(a) a provision, criterion or
practice applied by or on behalf of an employer, or
(b) any physical feature of premises
occupied by the employer,
places the disabled person concerned at a substantial
disadvantage in comparison with persons who are not disabled, it is the duty of
the employer to take such steps as it is reasonable, in all the circumstances
of the case, for him to have to take in order to prevent the provision,
criterion or practice, or feature, having that effect.”
18.
Section 18B(1) provided –
“18B Reasonable adjustments: supplementary
(1) In determining whether it is reasonable for a person to have
to take a particular step in order to comply with a duty to make reasonable
adjustments, regard shall be had, in particular, to -
(a) the extent to which taking the
step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is
practicable for him to take the step;
(c) the financial and other costs
which would be incurred by him in taking the step and the extent to which
taking it would disrupt any of his activities;
(d) the extent of his financial and
other resources;
(e) the availability to him of
financial or other assistance with respect to taking the step;
(f) the nature of his activities and
the size of his undertaking;
(g) where the step would be taken in
relation to a private household, the extent to which taking it would –
(i) disrupt the
household, or
(ii) disturb any
person residing there.”
19.
Two other provisions should be
mentioned. Section 3A(2) provided that failure to comply with a duty to make
reasonable adjustments was a form of discrimination for the purposes of the
Act. Section 18D(2) provided that the phrase “provision criterion or practice”
included “any arrangements”. We shall hereafter use “PCP” as shorthand for
“provision criterion or practice”.
Submissions
20.
On behalf of the Claimant Mr David Jones
submitted that the Employment Tribunal erred in law in paragraph 55 of its
reasons. It mistakenly directed itself that the provision criterion or
practice needed to apply to the disabled person – a requirement which is not
found within section 4A(1). Hot desking was without doubt a PCP applied by
the Respondent. The Tribunal should have gone on to ask whether this PCP
placed the Claimant, a disabled person, at a substantial disadvantage compared
with persons who are not disabled. Alternatively, the Tribunal could have
construed the PCP of hot desking as applying to the Claimant in a broad
sense. The Tribunal’s restrictive misapplication of the words of section 4A
would enable an employer to evade liability where it purported to make an
adjustment but did not implement it properly – which was the Claimant’s case
here.
21.
Mr Jones submitted that the Employment
Tribunal should have followed the wording of section 4A(1) and the guidance
given in Archibald v Fife Council [2004] IRLR 651 (at para 62,
per Lady Hale) and Environmental Agency v Rowan [2008] IRLR 20
(at para 27). If so it would have been bound to find that there was a PCP of
hot desking; that it placed the Claimant at a substantial disadvantage in
comparison with persons who are not disabled; and that (since the Respondent
promised an adjustment but did not deliver on the promise) the Respondent
failed in its duty.
22.
Mr Jones submitted that the only
appropriate course was to remit the matter to a differently constituted
tribunal for re-hearing on this question. He submitted that the present Tribunal
would be unable to approach the question with a fresh mind, given the
conclusions it had already expressed; and that the Claimant could not be
expected to have any confidence in the Tribunal to approach the matter afresh.
23.
On behalf of the Respondent Mr Terence
Rigby made essentially the following submissions.
24.
Firstly, he submitted that the Tribunal
did not err in its application of section 4A(1). It was, he submitted, a
finding of fact that the Respondent did not apply the PCP to the Claimant and
therefore that he was not placed at a substantial disadvantage by the PCP. He
questioned whether the amended Notice of Appeal was sufficiently wide to take
the point which was made by Mr Jones.
25.
Secondly, he submitted that the Tribunal
went on to find in paragraph 55 – which we have already quoted- that if there
was a duty to make a reasonable adjustment, that duty was satisfied.
26.
Thirdly, he submitted that the Tribunal
was bound in any event to reach the conclusion that on the evidence of Dr Faith
the adjustment contended for would have been ineffective and
counter-productive; therefore not a reasonable adjustment. The Tribunal ought
to have dismissed the claim on this further basis. Alternatively, he submitted that the appropriate
course would be for the matter to be remitted to the same Tribunal for that
Tribunal to answer the question whether the Respondent had complied with the
duty to make reasonable adjustments.
27.
Mr Jones replied as follows. He
submitted that the Tribunal did not, in paragraph 55 of its reasons, ask or
answer the questions posed by section 4A and section 18B(1). If the duty to
make a reasonable adjustment arose, the question whether ensuring that the
Claimant’s desk was free when he arrived was an adjustment which it was reasonable
for the Respondent to have to make was to be assessed by reference to the
criteria in section 18B(1). It was not sufficient simply to say that the
Respondent took reasonable steps to ensure that the seat was free by the start
of the shift.
28.
As to the medical evidence, Mr Jones
submitted that the evidence of Dr Faith was not agreed; that the Tribunal made
no specific findings as to whether the evidence was accepted; that it was for
the Tribunal to make its assessment on the evidence as a whole, which included
evidence that the Claimant had been able to work successfully for some months
when his preferred seat was generally available; and that it was no part of the
role of the Appeal Tribunal to make findings on a matter of this kind.
Conclusions
29.
In our judgment the Tribunal erred in law
in its application of section 4A(1) of the Disability Discrimination Act
1995.
30.
There is no doubt that hot-desking was a
PCP applied by the Respondent. It falls readily within the broad words
“provision, criterion or practice”; and those words are in any event defined to
include “any arrangements”: section 18D(2).
31.
The key question for the Tribunal was
whether this PCP placed the Claimant, a disabled person, at a substantial
disadvantage in comparison with persons who are not disabled. If so, the
Respondent would then be under a duty to take such steps as it was reasonable
for it to have to take in order to prevent the PCP having that effect. In Environmental
Agency v Rowan (paragraph 27) the Appeal Tribunal emphasised the
importance of following the statutory language and addressing the issues raised
by the statutory language.
32.
Neither section 4A nor section 18B
required the Tribunal to ask or answer the question whether the PCP applied to
the Claimant. In our judgment asking or answering this question is not
necessary and will tend to obscure the real issues the Tribunal has to decide -
whether the PCP placed the Claimant at a substantial disadvantage in comparison
with persons who are not disabled.
33.
The Tribunal’s reasoning was that the PCP
was not applied to the Claimant because he was not required to sit in any place
other than his preferred seat. However, he continued to be affected by “hot
desking” because other people who were required to hot desk were still sitting
in and intending to use his preferred seat when he arrived for work. The
Tribunal ought to have assessed whether this placed the Claimant at a
substantial disadvantage in accordance with section 4A(1) and if so whether
there were further steps which it was reasonable for the Respondent to have to
take in accordance with that section read with section 18B.
34.
We think it will generally be unhelpful
for a Tribunal to ask whether a PCP was applied to the disabled person. There
will, we think, sometimes be cases where PCPs which are applied to others at
work place the disabled person at a substantial disadvantage even if they are
not applied directly to the disabled person.
35.
In our judgment the Employment Tribunal
ought to have followed the wording of the statute, asking and answering the
questions which the statute posed. The guidance set out in Environmental
Agency v Rowan was and is apposite; and it was and is important to
apply the criteria set out in section 4A and in section 18B.
36.
Further, we consider that the wording of
the amended Notice of Appeal sufficiently raised this issue, stating that the
Tribunal made an error of law in finding that the PCP of “hot desking” did not
apply to him. In any event the issue was identified in paragraph 4 of the
Appeal Tribunal’s judgment at the preliminary hearing; and if we had thought it
necessary we would have permitted, indeed directed, a further amendment to the
Notice of Appeal.
37.
We turn to the question whether the
Tribunal in effect made, within paragraph 55, a sufficient alternative finding
that the Respondent complied with its duty under section 4A(1). We do not
think the Tribunal did so. The Tribunal’s finding that the Claimant was not
put at a substantial disadvantage by the PCP is linked to its finding that the
PCP was not applied to him. The Tribunal’s finding that the Respondent “took
reasonable steps to ensure that the seat was free by the start of the
Claimant’s shift” was not reached by means of considering and applying section
18B(1). If it was a reasonable adjustment to ensure that the seat was free for
the Claimant, then the Respondent was bound to make that adjustment, not merely
to take reasonable steps to do so.
38.
We turn next to the question whether,
given the medical evidence to which the Tribunal referred, the Tribunal was
bound to decide the reasonable adjustment issue in favour of the Respondent.
As we have seen the Tribunal reached its conclusion without relying on this
medical evidence: see paragraph 62 of the reasons, which we have quoted.
39.
The Employment Appeal Tribunal has
jurisdiction to deal with questions of law. Parliament has entrusted to
employment tribunals the task of deciding all issues of fact. If, once the law
has been applied correctly, the result is plain one way or the other from facts
which the Tribunal has found (or which are not in dispute), then the Appeal
Tribunal may give judgment accordingly. But if the result is not plain, then
the matter must be remitted for decision by a tribunal.
40.
In this case, while we acknowledge the
force of the medical evidence, we do not think we can go so far as to say that
the result is plain and obvious. It is, we think, arguable that the practice
of hot-desking placed the Claimant at a substantial disadvantage in comparison
with persons who are not disabled. On the question of reasonable adjustment,
the Claimant can argue that it was a reasonable adjustment for the Respondent
to have to provide him with a free desk at the back of the room at the start of
his shift; that this was indeed successful over a period of months in allaying
his anxiety to the extent that he was able to work (see section 18B(1)(a));
that it was not difficult or expensive to make this provision (see section
18B(1)(b)-(c)); and that it was well within the resources of the Respondent to
make this provision (see section 18B(1)(d)-(f)). On the other hand, it may be
said for the Respondent that, in the light of the medical evidence, provision
of a free desk would allay his anxiety only to a limited extent if at all; that
it was not practicable for a supervisor always to be on hand to make sure the
desk was free; and that the time and cost involved in ensuring that there would
be no mishaps at all was not justified. These, we think, are matters for the
Tribunal to assess.
41.
We turn finally to the question whether
the matter should be remitted to the same, or to a differently constituted,
Tribunal. In making this judgment the Appeal Tribunal applies guidance set out
in Sinclair Roche & Temperley v Heard [2004] IRLR 763 at
para 46, EAT, approved by the Court of Appeal in Barke v
SEETEC Business Technology Centre Ltd [2005] IRLR 633. In this case
we are satisfied that the Tribunal, with the guidance offered in this judgment,
will approach the matter professionally and in accordance with the statutory
provisions, applying section 4A and section18B; that it will look afresh at the
matter and be prepared to reconsider the claims before it and reach fresh conclusions.
Assuming the existing Tribunal can be reconstituted, we consider that this is
the just and proportionate course to take.
42.
We regret the delay in handing down this judgment; the reasons have been
explained to the parties.
