The Claimant, who had a phobia of blood, injections and needles, provided rehabilitative therapy services, in the form of a woodwork programme, to patients at a hospital operated by the Respondent. The Claimant, whose condition meant that he found it difficult to contemplate going to parts of the hospital where he might be confronted by blood, injections or needles, raised a number of objections to wording in his job description which ostensibly required him to work in those parts of the hospital. He was reassured by successive line managers that he would not be so required and that his job description would be revised accordingly. However, on each occasion, the revised job descriptions never adequately reflected what he had been told by his managers. The Claimant brought proceedings against the Respondent, alleging failure to make reasonable adjustments. The Tribunal, addressing the specific issue agreed between counsel for both parties, determined that the Respondent had not imposed a provision, criterion of practice ("PCP") which required the Claimant to go to parts of the hospital where he might be confronted by blood, injections or needles. In doing so, it considered "the whole picture of what… [the Claimant] was being required to do" and considered the Claimant's job descriptions alongside the assurances he had received from management. The Claimant appealed, broadly on the grounds that his job description was itself a PCP which caused him significant disadvantage in that it raised fears as to what he might conceivably be asked to do. He argued that the Tribunal had taken an overly holistic approach and had accordingly failed to look at the job description in isolation.

The EAT dismissed the appeal. The Tribunal had determined the issues on the same holistic basis as they had been advanced and as had been agreed in advance between counsel. None of the agreed issues directly concerned the job description separately from the decisions of management. There was no error in law in the Tribunal's approach.

Tim Crane, Employment Law Solicitor

-------------------------------------------------- Appeal No. UKEAT/0125/15/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 8 December 2015

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

(SITTING ALONE)

BRANGWYN (APPELLANT)

SOUTH WARWICKSHIRE NHS FOUNDATION TRUST (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR NICK HANNING (Representative)
Dutton Gregory Solicitors
48-50 Parkstone Road
Poole
Dorset
BH15 2PG

For the Respondent
MR TIM SHEPPARD (of Counsel)
Instructed by:
Mills & Reeve LLP
78-84 Colmore Row
Birmingham
West Midlands
B3 2AB

DISABILITY DICRIMINATION

The Claimant had a phobia, triggered by such as blood and needles. He worked providing rehabilitation services at a hospital. Over the course of two years, his job description was changed; he complained; it was changed again; he complained; it changed further - but on each occasion the results of discussions which he had had with managers about what he could be required to do (which he was concerned would trigger his phobia) were not faithfully recorded in the job description. An Employment Tribunal dismissed his claim. He appealed, on the ground that the job description was a PCP, it caused him significant disadvantage because whilst he was off sick it raised fears as to what he might be asked to do on return, which had to be resolved before he could return to work, and could easily have been amended to prevent that disadvantage; the Employment Tribunal had not looked at the job description in isolation.

Held: the argument before the Employment Tribunal did not treat the job description and conversations with managers separately, but took an holistic approach. The Employment Tribunal resolved it on that basis and was not in error in doing so. Nor did it err in failing to explain its reasons for not upholding a complaint of failure to make a reasonable adjustment for a year during which some requirement (about which he was concerned) was imposed on the Claimant to go onto the wards, since this had not separately been argued below, and it was sufficiently clear why the Claimant had lost his case on the basis which had been advanced.

1. It is often the case that an appeal raises arguments that are very different from those which were put before the Tribunal from which the appeal comes. This may well be a case in which the complexion on appeal is different from that which the case had when it was heard by a Tribunal at Birmingham before Employment Judge Cocks, Mr Bell and Mr Reeves, Reasons for whose decision were given on 2 January 2015. The appeal issues relate to the alleged failure of the employer, a National Health Service Trust, to make reasonable adjustments in the light of the Claimant's disability. The duty to make adjustments is set out in section 20 of the Equality Act 2010 ("EqA"), so far as material, in these words:

"(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."

1. The second and third requirements are not additional but alternative; so, it is not necessary for me to refer to them. A failure to comply with the first requirement is a failure to comply with the duty to make reasonable adjustments in respect of work that may give rise to a complaint under section 39 of the EqA.

1. The Claimant had a phobia in respect of blood, injections and needles and, it emerged, in handling patients. In the Tribunal's view, this grew more intense as time went on. It grew so significant that he found it difficult to contemplate going to parts of a hospital that, unfortunately for someone with his phobic anxieties, he worked in, where he might be confronted with evidence of blood or might see injections or needles. His work was to provide therapy of a woodworking type for patients undergoing rehabilitation, but over time the nature of the patients receiving rehabilitation changed and they were rehabilitated earlier in the course of their recovery such that the likelihood of their needing treatment or a change of dressings or the like was all the greater. He had a succession of job descriptions that related to his employment. An initial job description was replaced on 25 November 2010. The replacement was in error. That was replaced by a second one a month later. In 2011 the Claimant thought, not unreasonably, that he was being asked to do duties on the ward, but his only involvement actually was to collect and return patients from it (see paragraph 40) and to attend handover meetings on the ward. He feared that he might be required to use a hoist, but it was agreed by management that he would not have to do so.

1. The Claimant complained initially to a Ms Cross about what under his job description he might have to do. He worried that he might have to wash or dress patients on the ward. It was made clear to him by Ms Cross (paragraph 39) that he did not have to do so. His only involvement on the ward was to go there to collect or to return patients from the place where he conducted his woodworking therapy. The problem with ward meetings at that stage was not their location on the ward, in an office, but his fear that it might lead to his being required to do more by direct involvement with patients.

1. The job description was amended following that meeting with Ms Cross. This was in the summer of 2011, very shortly after the employer knew for the first time that the Claimant suffered from the phobia that constituted his disability. He complained that the job description did not properly reflect what he thought he should be required to do, nor what had been agreed by Ms Cross. His grievance was dealt with by a Ms Howell. She agreed that he would not have to use a hoist, that he would not have to attend on the ward meetings but if it was necessary to attend a meeting it could be held off the ward, and for his part he confirmed that he was happy to attend to collect and return patients. The Tribunal found he was happy with that outcome; that was October 2011.

1. A fourth job description was then issued; unfortunately, and in common with the other job descriptions throughout the saga, it did not properly reflect the content of what had been agreed with management. He objected to it. That led to a review by a Mrs Fereday Smith, completed in May 2012. The Tribunal found that she attempted to implement a successful return to work for the Claimant, who was by now off work and suffering from significant anxieties.

1. However, a fifth job description, which was then issued, though containing much of what had been agreed, did not continue to reflect the agreement that meetings where held should be held off the ward. He complained again. A Mr Hunter chaired a panel that concluded that the job description still needed further amendment. A sixth job description was issued, in early 2013. It referred to the Claimant collecting and returning clients to the bed bay on the ward, though by now this had become a source of difficulty for the Claimant.

1. In summary, the Claimant was assured by managers that his duties would not usually if at all involve anything that might trigger his phobia, but the job descriptions never entirely echoed what he had been told by the managers. Mr Hanning, who appears for the Claimant on the appeal, likens this to a discussion in court after which an Order is drafted the terms of which do not faithfully record the terms of what had been discussed with apparent agreement at the hearing. For someone with the particular disability that the Claimant had, this was likely to cause him serious stress, because he would worry not about what he had been asked to do but what he might be asked to do given the job descriptions that appeared to apply to him.

1. The Tribunal dismissed the claim that the Respondent had failed to comply with the duty to make reasonable adjustments. In doing so, it addressed issues that had been agreed between counsel for both parties before a Preliminary Hearing. None of the issues directly concerned the job description separately from the decisions of management. The first issue (paragraph 2(i)) was:

"(i) Did the Respondent impose a practice, criterion or provision (PCP) which required the claimant to go on to medical wards?"

1. The second and third issues, as to which less controversy arises, were:

"(ii) Did that PCP put the claimant at a substantial disadvantage?

(iii) What steps was it reasonable for the respondent to take and did it unreasonably fail to take those steps?"

1. The conclusions that the Tribunal reached addressed the first question in respect of the period after May 2011. That is because it was not until then that the Respondent knew of the disability. At paragraph 87 it appears that counsel then appearing for the Claimant submitted that there were three elements to the PCP:

"87. … (i) having to handle patients on the ward, (ii) attending the MDT [multi-disciplinary team] meetings on the ward, and (iii) collecting patients from the ward."

1. At paragraph 88 the Tribunal said this:

"88. The tribunal does not consider that concentrating solely on the various job descriptions presents the whole picture of what was happening in relation to what [the Claimant] was being required to do. We need to consider not only what was in the job descriptions but also what instructions he had actually been given and what the recommendations were from the grievance process. As Mr Sheppard [he appeared for the Respondent, as he does before me today] put to us at the start of the hearing, this case is all about perception. As our findings of fact indicate, we agree."

1. Accordingly, the approach that the Tribunal took was an holistic one, answering the question in the light of all the evidence and not having been invited separately to regard the job description as the PCP in itself. It was asked by Ms Davies, counsel for the Claimant below, to uphold the claim that the adjustment that could have been made was to the job description. She argued, as the Tribunal described at paragraph 97, that it could have provided that the Claimant was not ever to go onto the wards. It rejected that as being an unreasonable adjustment. Apart from that, there appears to have been no separate focus upon the dismal, sorry story of repeated job descriptions failing to record what the Claimant might have expected should have been recorded as the actual agreements he had with the managers.

1. Taking the approach that it did, the Tribunal concluded that any requirement to handle patients on the ward was never something that the Claimant was required to do. As to attending meetings on the ward (paragraph 91), it thought there was a requirement that he should attend those meetings but that was pre-May 2011 and the duty to make reasonable adjustments had not arisen. It became thereafter (see the last sentence of paragraph 91) a requirement to attend meetings but in an off the ward environment. That left the third element of the subdivision that Ms Davies had argued. As for collecting patients from the ward, the Tribunal said this (paragraph 92):

"92. The third element was that the claimant was required to go onto the ward to collect patients - something which he had previously been doing, although we accept it was not to collect them from bed bays (except for the one example given from his induction and the visit to the ward with the toy box). …"

1. I interpose to say that going to bed bays was that which was most likely to cause the Claimant significant anxiety and trigger his phobia because it was there that he was most likely to encounter needles, injections, blood and the like. Returning to paragraph 92:

"92. … Again, by the time that Mrs Fereday Smith and Mr Hunter made their recommendations, the claimant was not required to collect patients from their bedside but to support their collection from the ward. As [the Claimant] did not return to work, we do not know whether in practice these recommendations would have been ignored and he would have been asked to go to the wards.

93. The conclusion of the tribunal is that initially there was a PCP applied that the claimant had to go onto the ward, although in a limited way, ancillary to his main tasks in the workshop and to assist him in doing his job efficiently through attending the meetings and bringing and returning the patients from the workshop. However, this requirement, irrespective of the errors made in the various job descriptions, was effectively removed whilst the claimant was on sick leave by Mrs Fereday Smith and Mr Hunter."

1. It then rejected an argument that the Claimant could not be at a disadvantage if required to go on the ward because he was off sick at the time and therefore was never on the wards, since the fact that he might be required to do so if he was could itself give rise to stress, but returned to the question of whether there was a PCP to the effect that the Claimant contended in paragraphs 95 and 96:

"95. Our objective view is that the respondent's managers, through the grievance process, had removed the need for [the Claimant] to go on the wards. Unfortunately, the job descriptions produced did not adequately reflect what had been agreed to in the grievance process. The result of this was that, despite what he was being told about the grievance outcomes, [the Claimant] continued to hold the perception that he would be required to go onto the wards and could end up doing ward work. In colloquial language, he saw the limited requirements to go onto the ward as the thin end of the wedge and did not accept, because of what was put in the job descriptions, that anything had changed. It is very unfortunate that errors appear to have been made in the making of amendments to the various job descriptions.

96. However, it seems to the Tribunal that there is some overlap between the imposition, or otherwise, of the PCP and whether the respondent made reasonable adjustments. Was the removal of the requirement to go onto the ward the end of the PCP being applied or an adjustment preventing the disadvantage to the claimant? Up until Mrs Fereday Smith's recommendations, we accept that the PCP that he had to go onto the wards, albeit in a limited way, did apply to the claimant."

1. The paragraphs that follow dealt with the question of whether the adjustment that Ms Davies had proposed was reasonable. The Tribunal concluded at paragraph 101 that it would not have been a reasonable adjustment that the Claimant would never be required to go onto the ward as a whole. On the basis of what the managers knew at the time from the Claimant himself, going into the ward office or collecting patients from the waiting areas was not a problem. A reasonable adjustment would have been to ensure that the Claimant did not have to go into those parts of the ward where he might have seen things that triggered his phobic reaction, namely the bed bays and the areas proximate to them. The Tribunal went on at paragraph 102 to conclude the important thing was what was finally going to be in place when the Claimant was fit to return to work and concluded that by the time the grievance procedures had ended the Claimant:

"102. … would never be required to use a hoist, attend meetings in any part of the ward and only needed to support the collection and return of patients to the ward. He had done this previously, without difficulty, by collecting and returning patients to the waiting areas."

1. Two grounds of appeal remain following a hearing under Rule 3(10) before me. The first of those is simplicity itself. The job description must by its very nature constitute a provision. The provision was applied to the Claimant. The wording of that provision permitted the possibility that the Claimant might be required to do that which he had a phobic anxiety about doing. Its very existence therefore could cause him that anxiety that, given his particular disability, was likely to be substantial and thereby subject him to a substantial disadvantage. The adjustment was simple: namely in line with the managers' recommendations, to remove the offensive requirements that were causing the problem.

1. The second ground was in effect that the Tribunal did not properly explain why, given its overall conclusions and given its conclusion that there had been to a limited extent a PCP requiring the Claimant to attend on the ward, it did not hold that there had been a breach of duty between May 2011, when it became aware of his phobia, and May 2012, when Mrs Fereday Smith made her acceptable recommendations.

1. Mr Hanning submits that the Tribunal failed to consider if the job description in itself was a PCP. In what it said at paragraph 88, it conflated the job description together with the views and recommendations of management; that was impermissible. It prevented focus upon the real problem here, being the job description itself, which was the PCP. The response from Mr Sheppard is that that was not the way that the matter was argued before the Tribunal. It was not invited to look at the job description separately from the history of discussion with management and amendments to the job description from time to time. That is clearest from paragraph 2(i). It is equally clear in the recitation of the arguments put by Ms Davies at paragraph 97. If the Tribunal had not been invited separately to distinguish the job description as a PCP, it was wrong to criticise it now on appeal for failing to do so.

1. The simplicity and compelling nature of the argument, in my view, does not answer the question of whether the Tribunal made an error of law. It is only if the Tribunal made an error of law that this Tribunal is entitled to interfere. It is not an error of law to fail to deal with an argument that is not put to the Tribunal unless it is so clear from the circumstances that the argument is implicit in what is being said or is a necessary step towards a conclusion. The identification of a PCP is a matter of fact, but the identification as a matter of fact is itself a process of proposal by one party and, it may be, rejection or modification by the other. In this case, the question was whether there was a requirement on the Claimant to go onto medical wards; it is not whether there was a job description that might reasonably give him the sense that he could be asked to do so. The difference might seem subtle, but it is a real difference in the circumstances of this appeal.

1. I cannot hold, given the way in which the matter was clearly advanced below, that the Tribunal erred in law in failing to distinguish between the job description and management recommendations or to isolate the job description as Mr Hanning submits. It was not asked to do so and to consider the PCP in that isolated manner. The self-direction at paragraph 88 is appropriate given the task that the Tribunal had been set by the agreement of the parties at the Preliminary Hearing and given the further elucidation of it by Ms Davies as recorded in paragraph 87. The Tribunal were thus looking at whether there was in fact a requirement that the Claimant go on the ward.

1. The second ground here, the third ground of appeal in the Notice, is that the Tribunal failed to give adequate reasons for its finding that the Respondent never failed to make a reasonable adjustment and/or that its finding in this respect was perverse. This was the way in which the conclusion that the Tribunal reached overall failed to examine separately the period in particular between May 2011 and May 2012. The Tribunal had concluded as to that period in general that there was a limited requirement for the Claimant to go onto the ward; to that extent, it upheld the PCP (paragraph 93). At paragraph 94 it had apparently accepted the case that the existence of the requirement in itself could cause the Claimant some distress. The chronology showed that it was not removed until Mrs Fereday Smith considered the Claimant's complaints by May 2012, but the Tribunal's overall position as to whether the Respondent had made a reasonable adjustment and concluding that it had not broken its duty by failing to do so was one that spanned the entire period and did not explain why at least for that period the Claimant's claim had not succeeded.

1. The response to this by Mr Sheppard was to point to the way in which Ms Davies argued the case as recorded by the Tribunal. As to having to handle patients at the ward, there was no such requirement. As to attending MDT meetings on the ward, at the time that occurred there was no problem with it. He emphasised the developing nature over time of the severity of the Claimant's phobia. As to collecting patients from the ward, that was something that had been happy to do and to continue to do, as he demonstrated by reference to the Tribunal's findings of fact. It was something that did latterly cause a greater problem than it had initially. Mr Sheppard tells me, without contradiction from Mr Hanning, whose firm represented the Claimant below, that there was no separate argument addressed to a particular period of time because the argument was taken on an overall, broad-brush basis.

1. I have to ask on appeal whether that invalidates the Tribunal's decision. I cannot accept on appeal that it does. Again, it is no error of law, as it seems to me, to fail to deal with an argument that is not put. The Tribunal dealt with that which the parties, represented as they were, required it to do.

1. Though I had at the Rule 3(10) Hearing thought that this argument was the weaker of the two for which I was giving permission to appeal, it has been the area that has given me the greater problem in considering the submissions that have been made to me, but in conclusion I return to the way in which the ground of appeal is framed. The Claimant had been addressing an argument that he was required to do, or might be required to do, that which would trigger his phobia. He knew why the Tribunal had rejected that case. It considered, taking the job descriptions not in isolation but together with the conversations with managers, that he had never actually been required to do that which he was scared he might be, and that so far as an employer could in a National Health Service Trust hospital it had and would take steps to ensure that he did not come into a position in which that might happen in the future. It could not entirely exclude his going on the ward, but the Tribunal did not regard that as being unreasonable in itself in the context of the Claimant's particular disability. Those are conclusions of fact.

1. Ultimately, therefore, despite the clarity and simplicity with which Mr Hanning has advanced the appeals and despite sharing the disappointment of the Tribunal that the job descriptions from time to time did not properly and accurately reflect the agreement that managers thought they had made and he, the Claimant, thought he had made with managers, these appeals have to be dismissed.