APPEARANCES
| For the Appellant |
MS S MOORE
(of Counsel)
Instructed by:
The Environment Agency Legal Services
Rio House
Waterside Drive
Aztec West Almondsbury
Bristol BS32 4UD |
| For the Respondent |
MR S JOHN
(of Counsel)
Instructed by:
Messrs Shawcross Solicitors
Commercial Chambers
Commercial Road
Hereford
Herefordshire HR1 2BP |
SUMMARY
Practice and Procedure – Perversity
Disability discrimination – Reasonable adjustments
An Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Disability Discrimination Act 1995 by failing to comply with the Section 4A duty must identify:
(a) the provision, criterion or practice applied by or on behalf of an employer, or
(b) the physical feature of premises occupied by the employer,
(c) the identity of non-disabled comparators (where appropriate) and
(d) the nature and extent of the substantial disadvantage suffered by the Claimant.
Identification of the substantial disadvantage suffered by the Claimant may involve a consideration of the cumulative effect of both the 'provision, criterion or practice applied by or on behalf of an employer and the, 'physical feature of premises' so it is necessary to look at the overall picture.
An Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments under Sections 3A(2) and 4A(1)without going through that process.
Unless the Employment Tribunal has identified the four matters set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage.
It is doubtful whether a trial period of working from home can, as such, be regarded as a reasonable adjustment because it will not in itself have some practical consequence of preventing or mitigating the difficulties faced by a disabled person at work
HIS HONOUR JUDGE SEROTA QC
Introduction
- This is an appeal by the Respondent against the decision of the Employment Tribunal at Cardiff (Mr R Jones Chairman) the decision is dated 13 December 2006. The hearing lasted some 4 days. The Employment Tribunal held that the provisions of the grievance procedures under section 32(2) of the Employment Act 2002 had been complied with, the Claimant had been unfairly dismissed (this was a case of constructive dismissal). Further, the Claimant was disabled and the Respondent had discriminated against her on the grounds of her disability.
- The appeal was referred by HHJ Clark to a full hearing on 5 January 2007.
Factual background
- The Claimant was employed by the Respondent as a clerk/typist at its office in Cardiff. She held a part-time post and there was no need to cover the hours she did not work. She had suffered a work place accident in 1993 when she slipped and fell injuring her back. Her condition deteriorated despite surgery in 1997 and subsequent long-term sickness absence.
- On 8 December 2002 the Claimant moved her home from Marshfield in Cardiff to Herefordshire. Her journey to work was now some 50 miles as opposed to 5 miles from Marshfield. On 30 September 2003 she commenced long-term sickness absence and did not return to work.
- It is clear that from the middle of November 2003 the Claimant was making clear to the Defendant that she wished to work from home and did not wish to be rehabilitated within an agency work place. The Respondent took the view that home-working was not appropriate.
- The Employment Tribunal was satisfied that by 2004 the Claimant's symptoms were such that they could only adequately be controlled by bed rest. There was a serious limitation on her ability to sit for long periods. In April and June 2005 various conversations took place between the occupational health physician Dr Waddy and the Claimant's line manager Kim Evans. These telephone conversations were recorded and the Employment Tribunal described them as "absolutely shocking". Dr Waddy and Ms Evans were recorded as suggesting that the Claimant did not really wish to return to work.
- On 27 July 2005 Dr Waddy recommended various adjustments that might enable the Claimant to return to work. However, in October 2005 the Claimant obtained the occupational health records which included the recorded telephone conversations between Dr Waddy and Ms Evans.
- In about November 2005 the Respondent commenced its capability procedures. On a number of occasions the Claimant had sought ill health retirement on the grounds that she was unable to work at all; we mention this because the impact of such request on the Claimant's case relating to reasonable adjustments needed to be considered by the Employment Tribunal.
- On 14 December 2005 the Claimant lodged a grievance in relation to the recorded telephone calls and a grievance hearing took place at Monmouth on 6 January 2006. On 12 January 2006 the Respondent informed the Claimant of the result of the grievance meeting and the Claimant was asked to contact Jennifer Garrett to confirm agreement for an independent medical review, the Claimant having no faith in Dr Waddy. Ms Garrett was the Respondent's human resources manager.
- On 27 January 2006 the Claimant resigned by letter. She made clear in the letter that she was disappointed that her grievance had not been upheld and that she had been greatly distressed by the recorded telephone conversations. She had listened to the entire record of those conversations for the first time shortly before the grievance meeting. She was not satisfied with the way that her grievance had been handled nor with the fact that a request by her for flexible working had not been considered. She resigned with immediate effect:
"On the basis that the environment agency has repudiated my contract of employment. (I will be seeking remedy for Constructive Dismissal via an Employment Tribunal)."
The decision of the Employment Tribunal
- A point was taken before the Employment Tribunal as to whether there had been sufficient compliance with the grievance procedure; as this point is not taken on the appeal we need not deal with the Employment Tribunal's reasoning save to note that it found that the Claimant's letter of 27 January 2006 was considered to be an appropriate grievance letter.
- The Employment Tribunal referred to the relevant statutory provisions including sections 3A, 4A(1), 18B(1) and 18B(2) of the Disability Discrimination Act 1995 as well as to the Disability Discrimination Act (Amendment) Regulations 2003. It also reminded itself of sections 95 and 98 of the Employment Rights Act 1996 dealing with unfair dismissal. It considered a number of relevant authorities included Clark v Novacold [1999] IRLR 318, Archibald v Fife Council [2004] IRLR 651 and Hendricks v Metropolitan Police Commissioner [2003] ICR 867. The Employment Tribunal concluded that "the Claimant had been guilty of disability discrimination within the meaning of the Disability Discrimination Act" (see paragraph 14). "The Claimant" is obviously a mistake and the reference was to the Respondent. The Employment Tribunal expressed some doubt about the Claimant's evidence as to her commutes to work, given her move of house but it concluded that:
"Home-working was requested in this case in order to accommodate the Claimant's disability within the work place."
The Tribunal disagreed with the assertion of the Respondent that the home-working request was to accommodate her decision to relocate herself to Herefordshire.
- The Employment Tribunal went on to find:
"16. The Tribunal were satisfied that, for reasons related to the Claimant's disability, she was treated less favourably than another to whom that reason, that is, the reason for the treatment, did not apply - Clark –v-Novacold. There was disability related discrimination in that the Claimant was treated less favourably than an able bodied employee because she was required to work 100% in an office with which she had difficulties whereas an able bodied employee would not. The Respondent accepted that the Claimant was disabled for the purposes of the Act and it was not disputed the Respondent owed a duty to the Claimant to make reasonable adjustments. Failure to comply with this duty amounted to discrimination and a failure to make reasonable adjustments could not be justified.
17. The burden was on the Respondent to prove that all reasonable adjustments had been made.
18. On behalf of the Claimant it was submitted that reasonable adjustments would have been to permit partial home-working (requests were made in June 2003, July 2003 and again in November 2004), to have properly and adequately assessed the details of the request for home-working, to consider the allocation of the Claimant's duties to another, to consider or allow job sharing and - most critically in view of the Tribunal - to permit an initial trial of home-working for a limited period for one or two months."
- We noted that nowhere in paragraphs 15 or 16 does the Employment Tribunal identify the Claimant's disability in the workplace nor the difficulties that she might encounter working in an office which an able bodied employee would not.
- The Employment Tribunal noted that the Respondent had failed to consult the Disability Rights Commission Code of Practice or take specialist advice. It also remarked that job sharing had never been considered and that the Respondent could easily have accommodated giving the Claimant time off. It noted she had sufficient "slack" to ask for work to do. The Employment Tribunal found that no real consideration had been given as to whether home-working was appropriate. It noted that the Respondent had accepted that flexible working on at least a one month's trial was desirable. In relation to the cost of the reasonable adjustment the Employment Tribunal concluded that the Respondent had substantial financial resources to make an appropriate adjustment.
- We should record paragraphs 32 to 34:
"32. The medical record itself evidenced the restrictive nature of the Claimant's condition, the limitation on her ability to sit for long and the deterioration in her condition such that by 2004 the Claimant was subject to acute symptoms - and spontaneous very active symptoms - which could only adequately be controlled by bed rest.
33. The Tribunal accepted that travelling and distances were not a causative reason why an office environment was not appropriate.
34. Dr Waddy's reservations as to the ability of the Claimant to return to work were undermined by her own assertion that home-working/trialling were reasonable potential solutions."
- The Employment Tribunal was not convinced that home-working could not have been given a trial run for at least one or two months if not on a permanent basis. It also considered the job sharing was a possible adjustment; this was never considered.
- The Employment Tribunal then considered the submission by the Respondent that the complaints of disability discrimination had not been presented in time. The Employment Tribunal concluded at paragraph 44:
"44. The Tribunal were, however, satisfied that the failure to address the home-working request at all between mid 2003 and by the time of the resignation clearly amounted to a continuing act — or in this case, omission. The refusals in July and November 2003 and again in 2004 were clear evidence of a policy of not permitting Administrative Assistants to home-work. It was evidently a continuing state of affairs and, as a series of acts extending over a period, the complaints were clearly within time."
- It also concluded that it would have been just and equitable in its discretion to extend time had those acts not been part of an act extending over a period. We note the Employment Tribunal did not explain the basis of this decision.
- The Employment Tribunal considered that the complaint of disability discrimination had been made out and drew attention to what it regarded as an element of "insouciance" on the part of the Respondent together with more then a small element of "buck-passing":
"Manifestly, those from whom the Tribunal heard had not given proper consideration to the question of reasonable adjustments. Others within the Respondent's employment - particularly Ms Glenda George - had given thorough consideration to the predicament of the Claimant. Ms Glenda George was, however, not called to give evidence and those from whom the Tribunal heard were, in the Tribunal's respectful opinion, just not concerned adequately - or at all - to consider the question of reasonable adjustments."
At paragraph 49 the Employment Tribunal had this to say:
"49. Principally, however, the reason why the Tribunal considered the case for disability discrimination to be made out was the failure of the Respondent to afford the Claimant a trial period of home-working."
- The Employment Tribunal then turned to consider the issue of constructive dismissal. It reminded itself of the implied term of trust and confidence in a contract of employment which was a fundamental term of the contract a breach of which would entitle the employee to resign in relation to it and claim repudiatory breach/constructive unfair dismissal. The Employment Tribunal considered that the recorded telephone conversations between Ms Evans and Dr Waddy were sufficient to amount to a breach of that term. The Respondent's witnesses had described the conversations as "unfortunate" but the Employment Tribunal considered they were "far far worse than that", in the Tribunal's respectful judgment those conversations were "absolutely shocking". The Employment Tribunal accepted "absolutely" the Claimant's evidence that her trust and confidence in the Respondent had been "shattered". The impact of those conversations upon the Claimant was "devastating".
- The Employment Tribunal then considered whether or not the Claimant had delayed her departure for too long or whether she had acquiesced in the breach of contract. It noted that she had got more or less what she wanted but what weighed particularly heavily with the Employment Tribunal was that the Claimant did not receive from the Respondent "a full and frank apology". The Employment Tribunal also considered that the Claimant had been in the employment of the Respondent since 17 February 1992 and needed time to consider her position. The Employment Tribunal reached the conclusion that there had been a constructive and unfair dismissal. The Employment Tribunal entirely accepted that the Claimant would have regarded those conversations as "absolutely shocking" and she was entitled to consider her position having regard to the length of service she had given to the Respondent. The Employment Tribunal might have taken a different view had there been the full and frank apology to which it had referred but none was forthcoming:
"which the Tribunal found to be absolutely extraordinary having regard, not least, to the nationally prominent position of the Respondent and its duty, as a very large employer, to set an example."
Discussion of the law
- We will turn shortly to the Notice of Appeal but note that the principal issue as to the law relates to the Respondent's case that the Employment Tribunal has failed to give adequate reasons or explanations for its findings in relation to disability discrimination. It is helpful, therefore, for us to remind ourselves of the relevant statutory provisions relating to disability discrimination, in particular, the making of reasonable adjustments, and the principles which should guide us when considering appeals on the grounds of inadequate reasoning and inadequate explanation for findings.
- Section 3A of the Disability Discrimination Act 1995 (as amended) provides as follows:
[3A Meaning of "discrimination"]
[(1) For the purposes of this Part, a person discriminates against a disabled person if—
(a) for 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, a person also 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.
(3) Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial….
(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
Section 4A of the Act provides as follows:
"[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."
- It is also necessary to refer to section 18B:
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 that household, or
(ii) disturb any person residing there.
(2) The following are 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—
(a) making adjustments to premises;
(b) allocating some of the disabled person's duties to another person;
(c) transferring him to fill an existing vacancy;
(d) altering his hours of working or training;
(e) assigning him to a different place of work or training;
(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;
(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);
(h) acquiring or modifying equipment;
(i) modifying instructions or reference manuals;
(j) modifying procedures for testing or assessment;
(k) providing a reader or interpreter;
(l) providing supervision or other support.
- In London Borough of Barnet v Ferguson UKEAT/0220/06/DA 18 September 2006 the EAT presided over by HHJ McMullen QC approved a passage of judgement of EAT over which I presided in Smiths Detection Watford v Berriman UKEAT/0712/04 and UKEAT/0144/05. In that case we set out a schematic approach to assist Employment Tribunals in determining cases where the failure of an employer to make reasonable adjustments is in issue. In Smiths Detection Watford we were concerned with the provisions of the Act prior to its amendment by the Disability Discrimination Act 1995 (Amendment) Regulations which effected a number of amendments. In London Borough of Barnet v Ferguson HHJ McMullen QC held that the guidance applied equally to the Act as amended and was designed to "steer a Tribunal along the course along which it must walk if it is to make a finding that there has been a breach of the reasonable adjustments required of the DDA".
- It is helpful, therefore, if we restate that guidance to have regard to the amendments to the act:
In our opinion an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with the Section 4A duty must identify:
(a) the provision, criterion or practice applied by or on behalf of an employer, or
(b) the physical feature of premises occupied by the employer,
(c) the identity of non-disabled comparators (where appropriate) and
(d) the nature and extent of the substantial disadvantage suffered by the Claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the Claimant may involve a consideration of the cumulative effect of both the 'provision, criterion or practice applied by or on behalf of an employer' and the, 'physical feature of premises' so it would be necessary to look at the overall picture.
In our opinion an Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments under Sections 3A(2) and 4A(1)without going through that process. Unless the Employment Tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage.
- It is well recognised that an Employment Tribunal must provide adequate reasons for its conclusions of fact and law such as will explain to the parties why they have won or lost as the case might be. Rule 30 of the Employment Tribunal Rules of Procedure provides as follows:
"(1) A tribunal or chairman must give reasons (either oral or written) for any
(a) judgment; or
(b) order, if a request for reasons is made before or at the hearing at which the order is made.
(2) Reasons may be given orally at the time of issuing the judgment or order or they may be reserved to be given in writing at a later date. If reasons are reserved, they should be signed by the chairman and sent to the parties by the Secretary.
(3) [Subject to paragraph (1), written reasons shall only be provided]
(a) in relation to judgments if requested by one of the parties within the time limit set out in paragraph 5; or
(b) in relation to any judgment or order if requested by the Employment Appeal Tribunal at any time.
(4) When written reasons are provided, the Secretary shall send a copy of the reasons to all parties to the proceedings and record the date on which the reasons were sent. Written reasons shall be signed by the chairman.
(5) A request for written reasons for a judgment must be made by a party either orally at the hearing (if the judgment is issued at a hearing), or in writing within 14 days of the date on which the judgment was sent to the parties. This time limit may be extended by a chairman where he considers it just and equitable to do so.
(6) Written reasons for a judgment shall include the following information:
(a) the issues which the tribunal or chairman has identified as being relevant to the claim;
(b) if some identified issues were not determined, what those issues were and why they were not determined;
(c) findings of fact relevant to the issues which have been determined;
(d) a concise statement of the applicable law;
(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues; and
(f) where the judgment includes an award of compensation or a determination that one party make a payment to the other, a table showing how the amount or sums has been calculated or a description of the manner in which it has been calculated."
- It is also helpful to have regard to the well know dicta of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250 at paragraph 8:
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has give rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."
We would also refer to the judgment of Lord Phillips MR in English v Emery Reimbold & Strick Ltd [2003] IRLR 710. In giving the judgment of the court at chapter 19 he said:
"It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, in may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."
- We need not refer to the law in relation to "acts extending over a period" considered in Hendricks v Commissioner of Police as the law is not in question in this appeal, as opposed to its application to the facts. Nor are we concerned to set out the law relating to extensions of time, unfair dismissal and affirmation of contract. The issues raised on the appeal seemed to us to relate to the application of the facts of the instant case to the law and to the inadequacy of reasons given by the Employment Tribunal. We shall turn to the grounds of appeal dealing with these issues later in this decision.
Grounds of appeal and the parties submissions
Disability discrimination
- Although it is not clearly spelled out it seems reasonably clear that the Employment Tribunal concluded that the provision criterion or practice applied by or on behalf of the Respondent that placed the Claimant at a disadvantage was the requirement to work in an office rather than any physical feature of the premises occupied by the Respondent. The Respondent has sought to argue that failure to spell out the "pcp" vitiates the decision in itself. However, in our opinion it is sufficiently clear what the pcp was and we approach the appeal on that basis and say no more about this particular issue. The Respondent has attacked the decision of the Employment Tribunal in relation to its finding that the Respondent had discriminated against the Claimant on the grounds of her disability on a number of grounds. The principal complaint, however, was that the Employment Tribunal failed to adopt the schematic approach required by the statute and had failed to give sufficient reasons and failed to make or record sufficient findings of fact.
- It was submitted that the Employment Tribunal had failed to identify the pcp or physical feature; we have already disposed of this point. Ms Moore, however, appears to be on stronger ground when she submitted that the Employment Tribunal had made no findings as to the nature and extent of the Claimant's substantial disadvantage caused by being required to work in an office and did not give adequate consideration as to how the proposed adjustment would have prevented the Claimant being place at a substantial disadvantage. It had also failed to identify the steps that might have been taken by the Respondent to prevent office working placing her at a substantial disadvantage. Even assuming, submitted Ms Moore, that the pcp was the requirement that the Claimant should work in an office (as we have found) there was no finding that she was required to sit for long periods and was not able to get up; in any event if she were required to sit for long periods that would apply whether she worked in the office or at home as would her ability to get up and walk about. The requirement that the Claimant, when unwell should take time off as sick was not an adjustment that might enable her to work. Although there was evidence led by the Claimant to suggest that she could adequately work at home, one could not be sure of what findings the Employment Tribunal had made as it did not refer to the evidence which was not all one way.
- More crucially, the Employment Tribunal had made no findings (a) as to the nature of the Claimant's disability (b) as to why this disability placed her at a substantial disadvantage (c) as to what that substantial disadvantage was and (d) there were no findings as the Claimant's duties or roles or the breakdown of the tasks required of her.
- If the Employment Tribunal's decision was based on the perceived need of the Claimant to lie down from time to time (and this is not at all made clear in the decision) it was submitted that no consideration had been given as to why she could not, for example, lie down in the Respondent's first aid room which had facilities to enable her so to do.
- Ms Moore criticised the Employment Tribunal for failing to consider sufficiently the effect of a journey from her new home in Herefordshire. It had failed to focus sufficiently on the evidence of the effects of the journey, which it was submitted, placed her at a substantial disadvantage.
- The Employment Tribunal, it was submitted, made no findings as to whether, how, or why home-working would have prevented the adverse affects she claimed to have suffered and there was no analysis of the medical evidence.
- The Employment Tribunal, it was submitted, had given an inadequate explanation as to why it found it was practicable to perform duties at home. The finding that there should have been a trial period fell short of a necessary finding that the introduction of home-working would have alleviated the substantial disadvantage of which the Claimant complained. Indeed, the Employment Tribunal only found that it was appropriate for there to be a trial period of home-working; there was no finding that home-working as a permanent solution was a reasonable adjustment. A trial period in itself, it was submitted, would not be a reasonable adjustment. It would be evidence whether home-working on a permanent basis would or would not be; see paragraph 18 of the decision.
- Ms Moore submitted that there had to be some evidence that taking the step of a trial period of home-working would have alleviated the "substantial disadvantage". She submitted that the Employment Tribunal had used the trial period of home-working to plug what she described as an evidential gap. She went on to submit that the Employment Tribunal had ignored medical evidence that the Claimant was able to work in an office environment. At paragraph 46 the Employment Tribunal "found the complaint of disability discrimination to be justified". This was a bald finding but it did not identify which complaints were well founded. Were all the Claimant's complaints well founded or some of them and if so to what extent was the termination of the contract of employment attributable to discrimination?
- Ms Moore attacked the findings that the home-working arrangements proposed by the Claimant could constitute a reasonable adjustment. It entailed the delivery of work by courier (or possibly by scanning and email), passing all duties that could not have been performed at home to other employees, her line manager attending her home whenever face to face meetings were required as well as the installation of full office facilities; even a trial period would have needed a computer, fax, photo-copier and change of the Respondent's systems. She drew our attention to pages 191-198 of the supplementary bundle. The finding that such adjustments were reasonable and practicable was:
"so irrational and against the weight of the evidence as to be perverse."
- Submissions were made at length to support the perversity argument including the fact that the Claimant had originally sought to work at home for one day a week with two days in the office however by the time of her resignation she was seeking to work wholly at home. The Employment Tribunal completely ignored the Claimant's change of position and failed to explain why the Claimant at one time wanted to work at home for only part of the week, with the rest in the office and felt able to do so and later we believe for two days out of three [her final position was that she would only work from home]. The medical evidence did not support home-working and reference was made to a letter of 13 May 2005 (supplementary bundle 104) written in support of the Claimant's application for ill health retirement on the basis that she was unable to work at all.
- Ms Moore submitted that in general the evidence supported the case that the Claimant's difficulties were caused by the journey from her new house rather than by having to work in an office environment. Her case before the Employment Tribunal was not that she was unable to do office work but that she was unable to do office work in Cardiff (for some unspecified reason other than the journey). However, Ms Moore pointed to documents in the supplementary bundle (see in particular page 99) which pointed to the journey causing the difficulties. The Claimant had taken long-term sick leave in September and there had been difficulties in arranging a meeting by reason of her travel difficulties, on her own account. Ms Moore submitted that it was incumbent on the Employment Tribunal to say why it was the office environment that caused her difficulties as opposed to her long drive to work; the decision at paragraph 32 was quite insufficient.
- She went on to submit that the Employment Tribunal had ignored various adjustments made by the Respondent; for example the Respondent had provided a specially adapted chair, it had provided flexible part-time hours with breaks during the working day and earlier start and finish times together with the offer of a part time post in Monmouth. Her sickness rate was very much higher then the average. She also criticised the use of Ms Williams as a comparator because her line manager was in Birmingham but she still worked from the Cardiff office. The Employment Tribunal was also wrong to consider that the Claimant had sought to work at home part-time because by December 2005 she was only willing to work from home, and not work in the office at all.
- Ms Moore complained that the Employment Tribunal had failed to explain why it was just and equitable to extend time. It had failed to determine properly if the allegations of failure to make reasonable adjustments were out of time and if so to explain why it was just and equitable to extend time. We note at this point in time that the Employment Tribunal was clearly satisfied that the complaints made by the Claimant were of a continuing discriminatory policy and we do not consider it necessary to consider this point further. It is in any event academic if we find for the Respondent on the principal point.
- A further complaint is that the Employment Tribunal conflated the issues of less favourable treatment and failure to make adjustments; it was submitted that having regard to the decision in Clark v Novacold there could be no discrimination because the requirement of office work was applied across the board. It could not, therefore, amount to less favourable treatment; the requirement that the Claimant work in an office might only be relevant to the issue of failure to make reasonable adjustments.
- Finally it was submitted that the Employment Tribunal had impermissibly placed the burden of proof on the Respondent at paragraph 17 of its decision. It was submitted that the burden under section 17(1)(c) of the Disability Discrimination Act could not apply to reasonable adjustments; alternatively the burden was at least neutral. These last two points again do not necessarily call for decision if we are with the Respondent on its principal point.
Claimant's case on disability discrimination
- Mr John, who appeared for the Claimant, sought to uphold the decision of the Employment Tribunal. He submitted that it had made sufficient findings which were supported by the medical evidence and the decision was Meek compliant. In any event one could, as a matter of law, infer that the appropriate findings had been made by the Employment Tribunal.
- There was no need for the Employment Tribunal to find that a trial of home-working would have prevented the adverse effects. The Employment Tribunal was entitled to find that a trial period of home-working was a reasonable option with a not unreasonable chance of success. It clearly rejected the suggestion that the Claimant's difficulties were caused by her longer journey rather then her inability to work in an office environment.
- Mr John conceded that the Claimant had initially asked to work at home one day out of three, then two days out of three and her final position was that she should only work at home. However she had accepted that not all her work could be carried out at home and therefore had suggested that there might be some form of job sharing whereby work that could only be carried out in an office would be carried out by a colleague and she could absorb more of the work that could be done at home. Mr John submits that "more than sufficient explanation for finding home-working practicable was given". We asked Mr John to show us where the Employment Tribunal dealt with in its decision what the Claimant's duties were and how this was affected by working in an office; he could only draw our attention to paragraph 32 in which the Employment Tribunal recorded that the medical record contained evidence as to the restrictive nature of the Claimant's condition, the limitation on her ability to sit for long and the fact that by 2004 she was subject to acute symptoms:
"which could only adequately be controlled by bed rest."
We enquired whether there was a finding that this could not be accommodated in the office and Mr John drew our attention to paragraph 23 of the decision. He submitted that the Employment Tribunal must have found that it was better for the Claimant to have bed rest in a home environment rather than in an office environment.
- Mr John referred us to evidence that was not referred to in the decision for which the Employment Tribunal could have found why the Claimant was unable to work in an office environment and why it was a reasonable adjustment for her to be permitted to work at home. The failure to make reasonable adjustments was a continuing one so there would be no need to consider whether there should be an extension of time on the "just and equitable ground".
- The Employment Tribunal had correctly applied Clark v Novacold. It was accepted that the Respondent had a duty to make adjustments and adjustments had not been made. There was no need for there to be a comparator and the Claimant had been treated less favourably because she had ceased to receive regular pay and sick pay and was then constructively dismissed.
- The Employment Tribunal was correct in relation to the burden of proof. The Respondent had the duty to make reasonable adjustments and had not done so; it was not for the employee to suggest what were or were not reasonable adjustments.
- There was no need for the Claimant to prove that an adjustment would have been effective. The Respondent accepted it had the duty to show that it had made all appropriate adjustments; he drew our attention to paragraph 5.24 of the code of practice. The Employment Tribunal dealt with the issue of reasonableness in an objective way having carried out a detailed and balanced consideration of the evidence.
- The Employment Tribunal was entitled to find there had been a policy or continuing state of affairs in relation to the various allegations made by the Claimant.
- In so far as the Respondent's appeal was based on perversity it was submitted that the Respondent had failed to meet the very high standards for mounting a successful perversity appeal.
Conclusions on issues of disability discrimination
- It is unnecessary to decide all the points raised by the Respondent because we are satisfied that the Respondent has made out its principal point; the Employment Tribunal failed to identify clearly the nature and extent of the substantial disadvantage suffered by the Claimant. In the absence of such findings the Employment Tribunal was unable to determine properly what adjustments were reasonable to prevent the requirement to work in the Respondent's office, (the provision criterion or practice or feature that placed the Claimant at a substantial disadvantage having that effect). We accept that there was evidence that might have justified a finding that the Claimant was placed at a substantial disadvantage; however, that is not the point. There was a volume of conflicting evidence and powerful points were made by the Respondent which the Employment Tribunal simply has not addressed. We cannot be sure of what facts were found by the Employment Tribunal.
- The Employment Tribunal, because it has failed to identify clearly the nature and extent of the substantial disadvantage suffered by the Claimant has not explained how the proposed adjustment (a trial period of home-working) would alleviate the Claimant's substantial disadvantage. The substantial disadvantage not having been clearly identified it is impossible to know how home-working would have overcome this disadvantage and the Employment Tribunal fails to explain in its decision how home-working would have overcome the adverse effects said to have been suffered by the Claimant. As we have said there may have been evidence that would have justified the finding but the evidence was conflicting and we can only guess as to what was accepted and what was not. There must be some explanation as to why home-working would alleviate the substantial disadvantage said to have been suffered by the Claimant. The parties when considering the decision should not be expected to have to make assumptions as to facts found by the Employment Tribunal in a case where there was powerful evidence to suggest that home-working was not a reasonable adjustment and without an explanation having been given by the Employment Tribunal as to why the Respondent's evidence and explanations were rejected.
- The Employment Tribunal has failed to explain or make findings on a number of major factual issues. There is no analysis of the Claimant's duties. There is no finding that she was required to sit for long periods neither is there a finding that she was unable to get up, for example, and walk around the office when she may have needed. If the Claimant was required to sit for long periods the Employment Tribunal has failed to explain why it was that her difficulties were caused by working in the office, rather then the effects of the long journey from her new home in Herefordshire. No explanation is given by the Employment Tribunal and we would have thought that there is some force in the point made by the Respondent that it was incumbent on the Employment Tribunal to state why it was the office environment that caused the difficulties rather then the long drive; no explanation is given in paragraph 32 of the decision.
- It was submitted to us on behalf of the Claimant, as we have noted, that the Claimant needed flexible working throughout the day and needed to lie down from time to time. This is not clearly spelt out in the decision but if the Claimant needed bed rest, the Employment Tribunal has not found how much or how frequently neither has it found why the Claimant could not have used the available office facilities if she needed to lie down. There was no finding that this could not have been accommodated in the office. It was put to us that the Employment Tribunal must have found that it was better for the Claimant to have bed rest in a home environment rather then in an office environment. The Employment Tribunal, however, do not say this in its decision nor does it explain why this was the case.
- In the circumstances the appeal must be allowed on this ground and it is unnecessary for us to decide the other issues. However, we would observe, as we heard detailed argument on the point, that in relation to the perversity argument it is surprising that the Employment Tribunal failed to explain why it rejected the case that the Claimant's difficulties were largely caused by her move to Herefordshire and the consequent lengthy journey. Further the Employment Tribunal has not explained the impact on the case of the Claimant's change in position. She worked three days per week. Her initial case was that a reasonable adjustment would have been working one day a week from home. This became two days and her final position was that she should work all three days from home. The Employment Tribunal also did not consider the impact of the Claimant's assertion when seeking to retire on health grounds that she was unable to work at all. The Employment Tribunal has given no explanation as to why it has rejected medical evidence that the Claimant was able to work in an office environment. Nor has it explained why the Respondent's case on impracticability of home-working was rejected. For example, we do not know if the Employment Tribunal accepted or rejected the Respondent's case that it would be necessary for work to be delivered by courier or possibly by scanning and email, that it would have been necessary to pass duties that could not have been performed at home to other employees, that it would be necessary for her line manager to attend her home whenever a face to face meeting was required and that it would be necessary to install full office facilities even for a trial period at home including computer, fax, photo-copier and there would have been the need to change the Respondent's IT systems.
- We are certainly not finding that the decision of the Employment Tribunal was perverse; we are, however, pointing out that there appears to be some force in the submissions that the Employment Tribunal has failed to deal with significant evidential points.
- We now turn to consider the issue relating to the trial of home-working. We do not decide the question as to whether the trial period of home-working was capable of constituting a reasonable adjustment because for some reason the matter was not fully argued. However, we have considerable difficulty in seeing how an investigation or trial period as such can be regarded as a reasonable adjustment; we do not need to decide the point but express our doubts. A trial period is a procedure that an employer should sensibly adopt in an appropriate case but does not appear to be an adjustment as such. It is not a procedure specifically referred to in S4A or S18B(2). As has been observed in other cases what S4(A) and S18D(2) envisage is that steps will be taken which will have some practical consequence of preventing or mitigating the difficulties faced by a disabled person at work. It is not concerned with the process of determining what steps should be taken; It is prudent for employers to adopt a trial period in an appropriate case to see whether home-working for example is a reasonable adjustment. An employer who has failed to investigate the possibility of home-working by a trial period may find it difficult to establish that home-working was not a reasonable adjustment. We consider that a trial period is akin to a consultation, or the obtaining of medical and other specialist reports; these do not of themselves mitigate or prevent or shield the employee from anything. They serve to better inform the employer as to what steps, if any, will have that effect, but of themselves they achieve nothing. In circumstances such as the present case, where there is an issue as to whether home-working would be a reasonable adjustment a trial period of home-working is a tool which may enable the parties to determine whether home-working is in fact capable of being a reasonable adjustment that would, in this case, prevent or mitigate the difficulties said to be faced by the claimant when working in the Respondent's office.
- In the circumstances we do not consider it necessary to say any more about whether the Employment Tribunal's decision was correct in relation to whether the Respondent had committed an "act extending over a period" and in relation to whether it was in any event appropriate to extend time. Nor do we consider it necessary to say anything further about the alleged conflation by the Employment Tribunal of the issues of less favourable treatment and failure to make adjustments nor as to whether the Employment Tribunal impermissibly placed a burden of proof on the Respondent in relation to the issue of reasonable adjustments.
Unfair dismissal and constructive dismissal
The Respondent's case
- The Respondent does not challenge the finding that the recorded telephone conversations between Dr Waddy and Ms Kim Evans were capable of giving rise to a repudiatory breach of contract. It was submitted that the Employment Tribunal had not addressed the issue of whether the initiation of the grievance procedure could amount to an affirmation of the contract of employment. Further it had given no reasons for rejecting the Respondent's case that the claimant's grievance had been resolved by the letter communicating the outcome of the grievance as the Tribunal had noted that she "got more or less what she wanted". The Claimant had resigned some three months after knowledge of the existence of the tapes and some 15 days after her grievance had been addressed. The Employment Tribunal had failed to consider if she had affirmed the contract by following the grievance procedure and giving the Respondent the opportunity to remedy the breach; reference was made to the well-known case of Cox Toner v Crook [1981] IRLR 443. We put to Ms Moore that now that grievance procedures have in many cases become compulsory the fact that a Claimant had invoked a grievance procedure would be most unlikely to be regarded as an affirmation of the contract of employment. She submitted that in such a case the Claimant would in effect reserve the position pending the determination of the grievance and if the result was unsatisfactory he or she might treat the subject matter of the grievance as being a repudiatory breach. In the present case the Claimant got what she had asked for. The fact that there had been no apology had been irrelevant to the question of affirmation. She had never asked for an apology. Neither had she sought to appeal against the result of the grievance.
- Further, the Employment Tribunal had made no findings as to the Claimant's second reason for her resignation, namely that there had been no response to her request to work from home. The Employment Tribunal made no findings as to whether this was a reasonable request and made no findings as to what steps had been taken in response by the Respondent or what information was required to be supplied to the Respondent by the Claimant. The Employment Tribunal had further failed to find whether the Respondent's acts or remissions in this regard were in breach of the implied duty of trust and confidence. Finally, it was submitted that the Employment Tribunal having found the claimant was constructively dismissed did not go on to determine whether the dismissal was unfair within the meaning of section 98 of the Employment Rights Act or was for a potentially fair reason.
Claimant's case on unfair dismissal
- The Claimant characterised the appeal as a perversity appeal and submitted that adequate findings had been made and there was no basis for any challenge to the findings of the Employment Tribunal.
- The Employment Tribunal, it was submitted was entirely right to find that the taped telephone conversations evidenced and represented a breach of the term of trust and confidence, which of course, was fundamental to the employment relationship between the parties. The Employment Tribunal was satisfied that the breach had not been rectified and was thus "cemented". The Employment Tribunal, it was submitted, was entitled to find there had been no acquiescence nor affirmation either by use of the grievance procedure or at all. The Employment Tribunal was entitled to have regard to the fact that the grievance had been disposed of without an apology which in the circumstances would have been wholly appropriate. The Employment Tribunal was entitled to conclude having regard to her length of service that the Claimant was entitled to consider her position. Mr John reminded the Employment Appeal Tribunal that the Claimant had only listened to the full tapes on 6 January, the grievance decision was dated 12 January 2006 and so would have been received a day or two later, and her resignation letter was dated 27 January 2006. She thus waited for less than 14 days.
- Insofar as was relevant the Employment Tribunal was entitled to have regard to the background as well as the terms of the resignation letter. The context was that there was a long history of the Claimant seeking to work from home and the matter was raised in the resignation letter.
- In relation to the final point made by the Respondent that the Employment Tribunal had failed to consider whether the dismissal was unfair within the meaning of s98 or for a potentially fair reason, it had been conceded on the authority of British Sugar Plc v Kirker [1998] IRLR 624 that if unlawful disability discrimination caused the dismissal it would be "highly exceptional" for that dismissal not to be unfair. The taped conversations clearly related to the Claimant's disability.
Conclusions of Unfair Dismissal
- It was conceded (correctly) that the decision that the taped conversations between Dr Waddy and Ms Evans were capable of constituting a repudiatory breach of the Claimant's contract of employment by reason of it having been a clear breach of the implied term of trust and confidence. The Employment Tribunal correctly directed itself by reference to the decision in Cox Toner (International) v Crook [1981] IRLR 443 (EAT). At paragraph 13 Brown-Wilkinson J had this to say:
"It is accepted by both sides (as we think rightly) that the general principles of the law of contract apply to this case, subject to such modifications as are appropriate to take account of the factors which distinguish contracts of employment from other contracts. Although we were not referred to cases outside the field of employment law, our own researches have led us to the view that the general principles applicable to a repudiation of contract are as follows. If one party ('the guilty party') commits a repudiatory breach of the contract, the other party ('the innocent party') can choose one of two courses: he can affirm the contract and insist on its further performance or he can accept the repudiation, in which case the contract is at an end. The innocent party must at some stage elect between these two possible courses: if he once affirms the contract, his right to accept the repudiation is at an end. But he is not bound to elect within a reasonable or any other time. Mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation: Allen v Robles (1969) 1 WLR 1193. Affirmation of the contract can be implied. Thus, if the innocent party calls on the guilty party for further performance of the contract, he will normally be taken to have affirmed the contract since his conduct is only consistent with the continued existence of the contractual obligation. Moreover, if the innocent party himself does acts which are only consistent with the continued existence of the contract, such acts will normally show affirmation of the contract. However, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation: Farnworth Finance Facilities Ltd v Attryde (1970) 1 WLR 1053."
He then referred to the decision of the court of Appeal in Marriott v Oxford Co-operative Society [1970] 1 QB 196 and concluded:
"This decision to our mind establishes that, provided the employee makes clear his objection to what is being done, he is not to be taken to have affirmed the contract by continuing to work and draw pay for a limited period of time, even if his purpose is merely to enable him to find another job."
- The Employment Tribunal was entitled to find in the circumstances that the initiation of the grievance procedure was not an affirmation of her contract of employment; the Employment Tribunal was entitled to conclude she was reserving her rights to accept the repudiation or only continuing in her employment so as to allow the Respondent to remedy the breach. She has made clear her objection to what was being done. She waited for a response to her grievance which the Employment Tribunal was entitled to conclude was inadequate because the Respondent did not appear to show any recognition of the gravity of the breach. The question whether or not the 14 days delay thereafter was sufficient to constitute an affirmation was essentially one of fact for the Employment Tribunal and its decision that there had been no affirmation cannot be revisited by the Employment Appeal Tribunal.
- It is, therefore, unnecessary for us to consider the extent to which the refusal of home-working was relevant to this part of the decision.
- Further, we would accept that this part of the appeal is essentially a perversity appeal and the Respondent's case falls far short of satisfying the high burden placed upon Appellants in such circumstances.
- Reading the decision as a whole it is quite clear that the Employment Tribunal were satisfied that the dismissal was unfair and was not for a fair reason.
Disposal
- For the reasons we have outlined the appeal will be allowed insofar as it relates to the issue of disability discrimination but will be dismissed insofar as it relates to unfair dismissal.
- We have considered carefully whether this matter might be remitted to the same Employment Tribunal or whether it should be remitted for rehearing. Having regard to all the circumstances and the decision in Sinclair Roche & Temperley v Heard [2004] IRLR 763 we consider that the case should be remitted for rehearing before a differently constituted Tribunal.
