Appeal No. UKEAT/0421/12/SM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
28 February 2013
Before
THE
HONOURABLE MR JUSTICE SINGH
DR B V FITZGERALD MBE LLD FRSA
PROFESSOR K C MOHANTY JP
LONDON BOROUGH OF HILLINGDON APPELLANT
MRS
R BAILEY RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
DISABILITY DISCRIMINATION – Reasonable adjustments
The Employment Tribunal found that the Respondent was under a
duty to make reasonable adjustments to provide one to one counselling for the Claimant’s
disability (long-term depression) and failed to do so.
The EAT held that the ET had misdirected itself as to the correct
comparator, which should have been not all employees who were able to attend
work, but other employees who were ill and subject to the Respondent’s Managing
Attendance policy but not disabled. Further, and in any event, the ET had
erred in its understanding of the facts, since there was un-contradicted
evidence before it that in fact the counselling service made available by the Respondent
did include one to one counselling. Accordingly, even if a duty to make
reasonable adjustments had arisen, the ET was wrong in law to conclude that it had
been breached as there was no evidence to support that finding. On that basis,
the case did not need to be remitted and an order would be substituted
dismissing the claim for breach of the Disability Discrimination Act 1995.
THE HONOURABLE MR JUSTICE SINGH
Introduction
1.
This is an appeal by the London Borough of Hillingdon, which was the
Respondent to the claim below, against the decision by the Watford Employment
Tribunal given on 16 March 2012 and for which written Reasons were sent to the
parties on 29 May 2012. For convenience we will refer to the parties as the
Claimant and the Respondent, as they were before the Employment Tribunal.
2.
By its decision the Tribunal held that the Respondent had failed,
contrary to section 4A of the Disability Discrimination Act 1995 to make
a reasonable adjustment; namely that it failed to provide the Claimant with one
to one counselling. By its Notice of Appeal lodged on 2 July 2012, the
Respondent advanced four grounds of appeal. The last of those grounds, which related
to the award of compensation for injury to feelings, is no longer pursued. The
other three grounds of appeal, all of which relate to the approach which the
Tribunal took to the issue of liability, are still pursued.
The factual background
3.
The main facts can be taken from the Employment Tribunal’s Judgment at
paragraphs 10 to 64. The Claimant commenced employment with the Respondent
local authority on 15 June 1994. On 20 February 2006 she commenced
employment as an Intensive Family Support Worker. On 30 April 2009 the
Claimant was suspended pending an investigation of allegations of misconduct.
On 27 July 2009 she was issued with a final written warning and also made the
subject of the Capability Procedure. On 3 August 2009 the Claimant returned to
work on reduced hours (9.00 am to 1.00 pm) and a reduced work load. She
attended a return to work meeting with Mandy Gibbons, the Claimant’s line
manager, before August 2009 and Maroulla Andreou-Khan, her line manager after
that.
4.
On 7 August 2009 the first assessment was done in respect of the
Claimant by Dr McGrath, an occupational health advisor. The Claimant went on
sick leave and did not return to work thereafter. On 19 August 2009, the
Claimant attended an appointment with Dr Cobb, a consultant psychiatrist, at
the Respondent’s expense. On 1 September 2009 the Claimant was notified of the
first meeting to be held under the Respondent’s Managing Attendance Policy, or
MAP as it is sometimes called. That first meeting was held on 7 September
2009. The Claimant sent written representations and Cheryl Price, the
Claimant’s union representative attended on her behalf. On 11 September 2009
there was a further occupational health assessment by Dr McGrath and thereafter
there were such assessments by him on a regular, usually monthly, basis. On 12
October 2009 the Claimant’s appeal against her final written warning was
dismissed. On 11 November 2009 a second meeting was held under the MAP
procedure. Ms Price was unable to attend this, although the meeting had been
arranged to suit her availability. The Claimant also did not attend but sent a
letter dated 10 November. On the same date the Claimant was offered
access to the Respondent’s counselling programme.
5.
On 26 November 2009 the Claimant wrote to Ms Andreou-Khan declining
access to CIC counselling (we were informed this was counselling provided by an
outsourced agency) as she considered that she needed more in-depth counselling than
that service could offer. On 4 December 2009, Ms Andreou-Khan wrote to the
Claimant, so far as material in the following terms:
“The CIC counselling service is the only service that is
available for you to access at the moment and private treatment is not
something that can be readily outsourced through the London Borough of
Hillingdon.”
6.
On 11 December 2009, as one of the series of assessments done by Dr
McGrath, there was for the first time an assessment made by him that the
Claimant had a disability. This was because of the long-term nature of her
illness, which was depression. On 8 January 2010 a contract review hearing was
held in accordance with the Managing Attendance Policy. The Claimant did not
attend but her interests were represented by her husband, Stephen Bailey, and
Ms Price. The management’s case was presented by Ms Andreou-Khan, the hearing
was chaired by Richard Nash, the Service Manager in Child in Need Services, who
was assisted by Janet Christie, Human Resources Advisor. The outcome of this
hearing, which was set out in a letter dated 25 January 2010, was to
set a further review period. There was a second contract review meeting on 2
March 2010: the outcome was that the Claimant was to be dismissed with notice.
The notice period meant that the effective date of termination would be 24 May
2010.
7.
On 16 March 2010, the Claimant appealed against this. On 19 April 2010
there was a report by Dr Cobb in which he advised that the Claimant had strong
grounds to apply for retirement on grounds of ill health. On 7 May the
Claimant consented to early retirement on this basis. Also on that date there
was a further occupational health assessment which said the Claimant was
permanently unfit for work. Subsequently, the Claimant sought to withdraw her
agreement to early retirement. The Claimant issued her claim to the Employment
Tribunal on 23 August 2010: this was later particularised in a document
entitled, “Amended Claim” on 15 April 2011.
The decision of the Employment Tribunal
8.
Originally there was a claim, amongst other things, for unfair dismissal.
After certain interlocutory procedural steps were taken by the Employment
Tribunal, including a requirement for a deposit to be lodged by the Claimant
which, as we understand it, was not done so far as the unfair dismissal claim
was concerned, things came before the Employment Tribunal so far as is material
to the present appeal. By that time the only matter which was before the
Tribunal was the Claimant’s allegation that she had been discriminated against
on grounds of disability and, in particular, that there had been a failure to
make reasonable adjustments.
9.
After considering a number of policy documents including the Managing
Attendance Policy, at paragraph 27 of its Judgment, the Tribunal said:
“It would appear from reading this guidance document that
disability related sickness absences should be treated differently from
ordinary sickness absences and, furthermore, that there should be a discussion
at the earliest opportunity with the disabled employee to consider imaginative
and open-minded potential adjustments …”
10.
The Tribunal noted, in particular at paragraph 44 of its Judgment, that
after the occupational health report of 11 December 2009 by Dr McGrath an email
was sent by Pauline Moore on 21 December (she was the Human Resources Business Partner
with the Respondent authority). At paragraph 45 of its Judgment the Employment
Tribunal was clearly critical of the email:
“In our view, the advice from Miss Moore does not suggest a very
proactive and sympathetic approach to be taken in relation to how the claimant
should be treated as a disabled person because it raised possible arguments in
respect of her future with the respondent such as the impact her absence might
have on the business. No reference was made to the specific provisions in the respondent’s
Disability Guidance document, namely that there should be a meeting with the claimant
to discuss the adjustments. Further, whether it was right to treat her absence
on grounds of her disability as part of the Managing Attendance Policy or whether
it should be disregarded …”
11.
Paragraph 58 of the Tribunal’s Judgement is important in this appeal and
needs to be set out in full:
“It is clear from the account so far that the claimant’s request
for one-to-one counselling was refused by the Respondent. Mr Nash said in
evidence that he could not write in effect an open cheque for counselling
without an end date. We find that the reality was that matter was not explored
by the respondent, save to offer the claimant CIC group counselling. It was the
claimant who enquired and was provided with counselling on the National Health
Service. What is also clear is notwithstanding the fact that she was, according
to Dr McGrath, a disabled person on 11 December 2009, the Respondent proceeded
with the Managing Attendance Policy for there was no clear indication whether
or not that period of her absence was to be considered disability and outwith
the policy. The respondent’s sick pay policy provided for six months full pay,
followed by six months half pay.”
12.
At paragraph 66 of its Judgment the Tribunal reminded itself that
because of the date of the events concerned the applicable legislation was not
as it now would be the Equality Act 2010 but rather the Disability
Discrimination Act 1995 as amended in 2003. At paragraph 83 of its
Judgment the Tribunal said that the provision, practice or criterion applied to
the Claimant in this case was the requirement that the Claimant should return
to work by 24 May 2010 in her substantive job as an intensive family support
worker. The Tribunal also stated:
“The comparators are those who are non-disabled but who are able
to attend work”
13.
The Tribunal also concluded that insistence by the Respondent on a
return to work with the application of the capability procedure placed the
Claimant at a substantial disadvantage as she was unable to comply. Paragraphs
87 to 92 of the Judgment need to be set out more fully:
“87. She also argued that she should have been provided with
one-to-one counselling. In relation to that adjustment we have come to the
conclusion that there was sufficient evidence as to its reasonableness. The respondent
was seized of knowledge of the claimant’s disability either on 11 December 2009
or shortly thereafter and we base that on Dr McGrath’s report. We are
satisfied that prior to that the respondent knew that the claimant was in need
of counselling as she needed it to address work related issues. This was a
theme that ran throughout the occupational health report, that is the need to
address the work related issues …
88. The claimant became a disabled person on 11 December 2009.
She was in a protected category and needed to be treated as such. There must
be the absence of discrimination based on her disability and the respondent was
under a duty to consider reasonable adjustments …
89. Miss Moore did not make reference to the claimant’s need for
counselling nor did she advise Miss Andreou-Khan to arrange a specific meeting
with the claimant to discuss potential reasonable adjustments in accordance with
the respondent’s Disability Guidance policy. The claimant remained steadfastly
on the respondent’s Managing Attendance Procedure …
91. We have come to the conclusion that had the respondent
focused its mind in December 2009 to providing the claimant one-to-one
counselling for a limited period and thereafter to review her progress based on
the medical evidence the claimant was expected to make a satisfactory recovery
within the period of unfitness as predicted by Dr McGrath namely by the end of
the three months period. What happened after her dismissal is was that her
condition had significantly deteriorated. As a large employer the respondent
failed to have regard to her length of service; on balance her good work record
as well as her pleas for one-to-one counselling to address her work related
issues thereby enabling her to return to work within the expected three months
time frame. The rigid adherence to the Management Attendance policy did not
have any regard to the claimant’s position as a disabled person. Her sickness
record was not exempt from the procedure.
92. We acknowledge that had she returned to work it would have
been to her substantive role and at that stage having regard to the occupational
health report, a discussion about redeployment would have then followed. We
are not clear what might have happened.”
14.
Accordingly, the Tribunal held the Respondent liable for breach of the Disability
Discrimination Act and adjourned for a hearing to take place to consider
the question of remedies. However, at the invitation of the parties it did
deal with the remedy of compensation for injury to feelings. At paragraph 97
of its Judgement it came to the conclusion that the assessment of injury to
feelings came within the middle band of the well known decision in Vento
v Chief Constable of West Yorkshire [2003] ICR 318, brought up to date
and so awarded the Claimant the sum of £15,000 for injury to feelings.
The grounds of appeal
15.
The first ground of appeal is that the Employment Tribunal erred in its
choice of comparator, in particular at paragraph 83 of its Judgment.
16.
The second ground of appeal is that the Tribunal erred in failing to
conclude that by offering the Claimant access to CIC counselling the Respondent
had discharged the duty said to arise under section 4A of the Disability
Discrimination Act.
17.
The third ground of appeal is that, further or alternatively, the
Tribunal erred in concluding that CIC counselling provided group counselling
only and did not provide one-to-one counselling.
Material legislation
18.
Part 2 of the Disability Discrimination Act as amended and in
force at the relevant time dealt with discrimination. Section 3A defined
discrimination for relevant purposes in sub-section (2) as follows:
“For the purposes of this part a person […] discriminates
against a disabled person if he fails to comply with a duty to make reasonable
adjustments imposed on him in relation to the disabled person.”
19.
Section 4A of the same Act made further provision about this duty of
reasonable adjustments and was headed, “Employers: Duty to Make Adjustment” It
provided in sub-section (1):
“Where, (a) a provision, criterion or practice applied by or on
behalf of an 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 […] having that effect.”
20.
Section 18B(1) provided that, in determining whether it is reasonable
for a person to have to take a particular step to have to comply with a duty to
make reasonable adjustments, regard shall be had in particular to the matters
listed in that sub-section. It is not necessary for present purposes to set out
that list in detail, suffice to say that it includes such matters as the extent
to which it is practicable for a step to be taken; see paragraph (b), and the
nature of the employers activities and the size of the undertaking; see
paragraph (f). Sub-section (2) of section 18B sets out some examples of steps
which a person may need to take in relation to a disabled person in order to
comply with a duty to make reasonable adjustments. For example, paragraph (f)
refers to allowing him to be absent during working or training hours for
rehabilitation, assessment or treatment and paragraph (l) refers to providing
supervision or other support.
Discussion
21.
On behalf of the Respondent authority, which appeals to this Tribunal,
reference is made to a number of authorities on the correct interpretation of
the Disability Discrimination Act for relevant purposes. Suffice to say
that in our judgment it is only necessary to refer to one case which is the
most recent of those decisions and that is the Judgment of this Tribunal given
by HHJ Serota QC in Rider v Leeds City Council UKEAT/0243/11/LA,
a judgment handed down on 27 November 2012. That case also, like the present,
concerned an employer’s management attendance policy or MAP which is referred
to in more detail in paragraph 5 of this Tribunal’s Judgment. At paragraph 6
it was noted that as in the present case the MAP in that case applied only in
cases of sickness absence, not absence for other reasons.
22.
It was the operation of the MAP and its application to the Claimant in
that case which led to the Claimant’s dismissal and which constituted the
relevant provision, criterion or practice (PCP) in that case; see paragraph 45
of this Tribunal’s Judgment.
23.
It was suggested on behalf of the Claimant in the present case that the
PCP in that case, so far as material was a somewhat different one as identified
at paragraph 68 of this Tribunal’s Judgment. It was said there:
“It will be recalled that the Employment Tribunal identified the
PCP as being a requirement that the Claimant should return to work at Armley
Moor …”
24.
In fact, as this Tribunal observed at the end of the same paragraph the
Claimant on the findings of the Employment Tribunal could not demonstrate a
substantial disadvantage because that PCP was not in fact applied by the
Respondent to the Claimant. As the Respondent authority before us submitted,
there is a material difference between the PCP in the present case and the one
referred to in paragraph 68 of that Judgment because that referred to work at a
particular location. We are persuaded that the correct way of looking at the
relevant PCP in the case of Rider is set out in paragraph 87 of
this Tribunal’s Judgment:
“So far as the PCP is concerned, it seems too difficult to
construct any PCP relating to the operation of the MAP other than the
application of the MAP to the Claimant. A comparator referred to in paragraph
16 of the decision of the Employment Tribunal at first blush makes little sense
(someone who was not disabled yet also long-term absent by reason of illness).
However, as the MAP relates only to sickness absence and no other, it is
difficult to construct an alternative. Comparison, therefore, must be between
the Claimant who was disabled and subject to the MAP, and someone also subject
to the MAP by reason of illness who was not disabled.”
25.
It seems to us that that is the closest case to the present case and
also concerned the operation of a MAP to a Claimant such as the present who was
disabled within the meaning of the Disability Discrimination Act. The
MAP also applied, as in Rider, to other persons who had an
illness and so were absent from work but who did not fall within the definition
of a disabled person within the meaning of the Act. In essence the Respondent
authority submits under ground 1 that the Employment Tribunal in the present
case erred in law in paragraph 83 of its Judgment because it incorrectly
identified the relevant comparator group.
26.
We accept that contention. By reference in particular to paragraph 87 of
this Tribunal’s Judgment in Rider it seems to us to be clear that
the relevant comparator group for present purposes was other persons who by
reason of illness were subject to application of the MAP but who were not disabled
like the present Claimant. If the Tribunal had approached the matter in that
way it is clear, it seems to us, that the Claimant was not being treated any
differently. She was not, therefore, subject to any substantial disadvantage
by comparison to the correct comparator group. On that basis the duty to make
reasonable adjustments would not have arisen.
27.
Nevertheless we turn to grounds two and three in the present appeal
which have been argued simultaneously as they are closely connected to each other.
In essence the Respondent authority submits that the Employment Tribunal erred
as a matter of law because it proceeded on a factual basis which was not
supported by any evidence before it and which was inconsistent with the
uncontradicted evidence which was before it. Before we turn to that evidence
in greater detail it is important to recall that the reference to one-to-one
counselling was not some passing or inadvertent reference by the Employment
Tribunal in this case. It is unnecessary to repeat the passages which we have
already cited from that Judgment but it is clear from those passages that more
than once the Employment Tribunal made reference to the suggestion that what
the Claimant was asking for and had been refused was one-to-one counselling.
In fact, the evidence before the Tribunal did not support those assumptions.
28.
We begin with a letter dated 11 November 2009 which was sent by the
Respondent to the Claimant and referred to Dr McGrath’s suggestion about
private counselling. Ms Andreou-Khan, the author of the letter, included a
leaflet concerning the CIC programme. That leaflet is before this Tribunal, as
it was before the Employment Tribunal, and so far as material includes the
following passage under the heading, “Counselling”:
“Subject to the selection of this option by your organisation
CIC will provide you with a referral for face-to-face counselling. If you and
the telephone adviser decide that counselling may be helpful you will be
referred for a limited number of sessions with a fully qualified counsellor.
You will be matched with a counsellor most suited to your needs. Counselling
usually takes place at the counsellor’s premises close to your work or home,
whichever is more convenient for you.”
29.
We have already quoted the relevant passage in the letter of 4 December
2009 also from Ms Andreou-Khan to the Claimant. As we understand it from
submissions made before us the reference to “private treatment” in that letter
was simply a reference to any counselling which was not provided by CIC, in
other words the counselling service for which arrangements had been made by the
Respondent authority. In the evidence which was called on behalf of the
Respondent before the Employment Tribunal, and of which there is an
uncontradicted manuscript note before this Tribunal, Ms Andreou-Khan was asked
whether the Respondent authority had selected the option referred to in the
leaflet which we have quoted. She answered, yes, LBH had selected this option.
She was asked if one-to-one was provided by CIC and she answered that question
also, yes.
30.
That witness was then cross-examined at some length on behalf of the
Claimant. In particular she was cross-examined, as is again clear from the
manuscript note which has been placed before this Tribunal, on the subject of
counselling services. It is submitted, and we accept on the basis of the
evidence before us which has not been contradicted on behalf of the Claimant,
that there was no cross-examination challenging the witness’s evidence that CIC
offered one-to-one counselling. Furthermore, it is important to note as has
been submitted on behalf of the Respondent authority before us, the way in
which the case had been pleaded and the evidence of the Claimant herself in
this regard.
31.
Neither in the original form ET1 nor in the amended claim was there any
allegation that there had been a refusal by the Respondent to provide
one-to-one counselling as the Tribunal concluded. For example, in the amended
grounds at paragraph 19 there was a reference to a failure to make reasonable
adjustments. The only reference to counselling issues was in the second bullet
point which read:
“Providing assistance and/or medical support appropriate to a
person suffering from severe depression: all the manager suggested was that she
called a counselling hotline.”
32.
In fact, as will be apparent from leaflet which we have already quoted,
CIC counselling involved face-to-face counselling and not simply a counselling
hotline but the important point for present purposes is, as the Respondent
submits, not whether the allegation was true or not but that that was the only
allegation then being made. It was not being alleged on behalf of the Claimant
in her pleading that the Respondent had refused to make one-to-one counselling
available to her.
33.
In a similar vein the Claimant’s witness statement before the Employment
Tribunal dealt with the question of counselling at paragraphs 13 to 16. Again
there was no suggestion in that evidence that one-to-one counselling had been
sought or refused by the Respondent. On behalf of the Claimant before us it
was suggested that some assistance can be derived from a letter by Richard Nash
on 25 January 2010 which, so far as relevant, includes the following passage:
“The CIC counselling service was offered to you, however I
understand that this type of counselling was not suitable for your needs.”
34.
In our view, that was not a concession by Mr Nash on behalf of the
Respondent that the authority in fact accepted that CIC counselling was not
suitable. It was rather an expression of an understanding by him recording what
the Claimant’s own position was since she had not taken up the offer of such
counselling to be provided to her.
35.
In all the circumstances therefore, we have no hesitation in coming to
the conclusion that even if we were wrong on ground one in the present appeal,
the Respondent’s appeal must be allowed on grounds two and three. This is for
the simple but important reason that, even if the Tribunal was correct in its
earlier finding that the duty to make reasonable adjustments arose in this
case, the only respect in which the Tribunal found that there was a breach by
the Respondent of that duty was the assumed failure to provide one-to-one
counselling to the Claimant. In fact, on a fair and proper reading of the
uncontradicted evidence before the Employment Tribunal, it was simply not open
to the Tribunal to make that finding of fact. Accordingly, even if the duty
had arisen, there was only one answer which could be given to the question
whether that duty was reached in this case; that answer was and must be that
there was no such breach.
36.
We have considered carefully the question of what should follow in the
light of our conclusions so far on the grounds of appeal. Counsel for the Respondent
authority fairly accepted that, if she succeeded only on ground one, the proper
course would be to remit the matter to the Employment Tribunal for further
consideration in accordance with the Judgment of this Tribunal. However, she
submitted that, if we allow the appeal on grounds two and three, this Tribunal
is in the same position as the Employment Tribunal would be in and has the
benefit of all relevant facts. We accept that submission. We consider that in
the circumstances of this case and in light of the conclusions to which we have
come we should allow this appeal and decide the case ourselves rather than
remit it.
37.
Accordingly, we propose that an order would be substituted for that of
the Employment Tribunal which would dismiss the Claimant’s claim under the Disability
Discrimination Act.
