Appeal No. UKEAT/0254/09/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 September 2009

and 22 January 2010

Judgment handed down on 27 April 2010

Before

HIS HONOUR JUDGE PUGSLEY

MS G MILLS CBE

MISS S M WILSON CBE

LANCASHIRE CARE NHS FOUNDATION TRUST (APPELLANT)

MS S REILLY (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS RACHEL WEDDERSPOON (of Counsel)

Instructed by: Messrs Hempsons Solicitors
Portland Tower
Portland Street
Manchester
Lancashire
M1 3LF

For the Respondent
MR JOHN MACKENZIE (Solicitor)

Messrs John Mackenzie Solicitors
Rotherfield House
7 Fairmile
Henley on Thames
Oxon
RG9 2JR

DISABILITY DISCRIMINATION: Reasonable adjustments

This was an appeal by the Respondent employers against a finding that they had failed to make reasonable adjustments. After the case was opened in the first hearing it became clear that there was such a conflict between the parties that it was necessary to call for the notes and to ask for the Employment Tribunal to make clear the way in which the matter had been put before the Employment Tribunal. At a subsequent part heard finding the EAT found that any claim that there had been procedural irregularities failed and this was in effect an appeal on perversity.

1. By a decision promulgated on 5 May 2009 the Employment Tribunal sitting at Manchester decided that the Respondents had unlawfully discriminated against the Claimant by failing to comply with its duty to make reasonable adjustments to its provisions, criteria and practices which placed the Claimant, as a disabled person, at a substantial disadvantage in comparison with a person who was not disabled. As a consequence the Claimant was subject to a detriment by not being able to work between the June 2007 and 31March 2008.

1. The decision which ran to some 24 typed pages set out in great detail the Employment Tribunal's direction as to the relevant law and its findings of fact. The case took some 5 days of hearing and a further day in chambers was spent deciding the issues. The employers appealed from that decision with a plethora of grounds of appeal. In part it alleged there had been certain procedural defects in the way the Tribunal had carried out its task in that it had taken into account matters which were not pleaded. It is claimed that the Tribunal had fallen into the trap of assuming that because an adjustment was possible it was therefore reasonable. Further it is claimed that certain of the conclusions which it had reached were perverse.

1. There was a dispute between the parties as to the notes of evidence which was referred to the President, Mr Justice Underhill. By a letter of 11 September 2009 the President noted that the failure to agree notes was an unfortunate state of affairs and concluded with the observation that the correspondence he had seen does not reflect the co-operative approach which is nowadays expected of litigants.

1. The matter came before us on 23 September 2009. It became apparent to us that such was the chasm between the parties' recollection that it would prove impossible for us to resolve the issue which was before us without having the Chairman's notes and without a schedule being drawn up and the Employment Tribunal having the opportunity to comment on these matters which had been raised. This schedule is appended to this judgment.

The Factual Background

1. The Claimant, Ms Sharon O'Reilly, was employed by the Respondent Health Trust as a nursing assistant. The Health Trust has some 2,000 employees. The Claimant's experience was with working with patients who were mentally ill. The Claimant's work history is set out in paragraph 8 onwards of the decision, and it suffices to say that, after various changes in her working pattern which reflected wider changes within the NHS, by 2002 the Claimant had ceased to look after outpatients and was instead redeployed to work with service users from the psychiatric inpatients wards and to try to reintegrate them into society by taking them to parks, the gym and other community destinations.

1. Although initially the employer denied that the Claimant was disabled, it was admitted by the time of the hearing that she had a disability; she has severe dyslexia and she had a hiatus hernia and intestinal problems. Because of these symptoms the Claimant was fearful of involving herself with physical restraint of patients and service users. The decision sets out in very considerable detail the chronology of events from the Claimant raising a grievance concerning the impact of the restructuring and reorganisation in November 2004 through to March 2008. In view of the terms of the Employment Tribunal decision it suffices to say that all attempts to resolve the matter failed. Before us the issue has really resolved itself into the findings of the Tribunal that the employer failed to make reasonable adjustments.

1. These findings are comprehensively set out in paragraph 14 onwards of the Tribunal's decision. The Respondent's case was that in relation to the dyslexia they had made reasonable adjustments and that no alternative arrangements could have reasonably been made in respect of the Claimant's gastro intestinal problems and the associated stress.

1. In paragraphs 16 and 17 the Employment Tribunal set out their findings in relation to the dyslexia, and the Tribunal came to the view that the Respondent did accommodate the Claimant's needs which arose from the dyslexia. The Tribunal pointed out that had the gastrointestinal problems with associated stress not caused the Claimant to be suspended then the dyslexia would not have precluded the Claimant from continuing as a nursing assistant.

1. Moreover the Employment Tribunal was not critical of the Respondent's initial attempts to seek to accommodate the Claimant's concerns about physical restraint of patients. She had been transferred for a period of about 11 months to a community project in Darwen Resource Centre. In view of the advice the Respondent received the Respondent suspended the Claimant and the Employment Tribunal concluded that the Respondent had no real option but to take that course.

1. However the Tribunal were critical of the Respondent's actions after the suspension.

"17. We are satisfied that the question of voice activated software was only raised by the Claimant in May 2007 and the Respondent took reasonable steps to enquire about the provision of this equipment and that but for the Claimant's medical suspension it is likely it would have been provided. It remained to be seen whether the Claimant would have been able successfully to use the equipment. Although the Claimant was clearly upset that a number of colleagues found out about her dyslexia we are not satisfied that the Respondent handled this matter insensitively or without consideration for the Claimant's feelings.

18. In respect of the concerns regarding physical restraint the Claimant suggested that the Respondent should have transferred her to a suitable appointment in a community team or a post that would not involve the use of physical restraint or record keeping that the Claimant had difficulty with. The Tribunal is satisfied that the Respondent made reasonable attempts to accommodate the Claimant's disabilities up until her medical suspension on 8th June 2007. Following the raising of the Claimant's concerns the Respondent had temporarily redeployed the Claimant to the Darwen Resource Centre where she had successfully worked for a period of 11 months. It is clear that the Claimant made significant progress in this role and learned a number of important strategies and means of assisting psychiatrically ill persons in the community. The Respondent offered the Claimant a further, albeit temporary, role at the Mount Pleasant Rest Home which she chose to decline. The Respondent obtained advice from its Occupational Health Unit as to the Claimant's condition and how it would affect her. The attempt to reintegrate the Claimant into Pendle View by ensuring she was not working on the wards during the mornings of the week was worth attempting, albeit it is clear that the Claimant found the afternoons stressful. When that attempt was made, the occupational health view was that the problem was a managerial rather than a medical one, and Ms Cullen and Ms Kershaw had put forward an induction package to compartmentalise the level of ward work, at least in the early stages, with a view to building up the Claimant's confidence and overcoming her fears. The Respondent had no real option other than to suspend the Claimant when it became apparent that further work in such an environment would be likely to expose the Claimant to ill health, for which the Respondent would no doubt have been liable.

19. The Tribunal does not accept however, that after the Claimant's medical suspension the Respondent took reasonable steps to overcome the substantial disadvantage that the Claimant faced. In our judgment it was not appropriate to postpone the meeting which was to be held with the Claimant's manager pending the resolution of a grievance. If that was to be the course adopted the grievance should have been resolved within a matter of days and a high priority placed upon it. In our judgment it was imperative to explore all reasonable avenues of redeploying or accommodating the Claimant in her nursing assistant role at as earlier an opportunity as was possible.

20. In cross examination both Ms Cullen and Dr Deo were asked to consider whether it would be possible for the Claimant to undertake her duties whilst not going on to the 4 wards in Pendle View save to collect or return a service user. Dr Deo had set out his opinion in his statement, that the care of the patients required considerable flexibility. In his opinion it was clearly best for those who worked with the psychiatrically ill patients to rehabilitate and reintegrate into the community to be able to be as flexible as possible. This would enable the member of staff to build up a good rapport with patients. He drew attention to the fact that each patient had different requirements for care and must therefore have an individualised and person centred approach. Working with patients on the ward as well as off the ward would enhance the relationship and the confidence of the patient in his nursing assistant. Dr Deo conceded that it would be possible for the Claimant to work with the patients in the surrounding facilities other than strictly on the wards and that she would be able to discharge her duties in this way but this would not be ideal. We were satisfied that the risk of the Claimant becoming isolated and detached from other staff members to become peripheral was not significant, because, as Mr MacKenzie pointed out the Claimant would still be having regular [sic] with her colleagues and the patients around and about the ward area, on his proposal.

21. The CMHTs had been formed in partnership between the Respondent and the local authorities. The Respondent had managed successfully to place the Claimant in one of these teams for a period of 11 months and had found an alternative placement at the Mount Pleasant Resource Centre. No further enquiries were made during the long period of the Claimant's suspension as to whether or not her services might have been put to valuable use in the community in partnership with the Local Authority.

22. We find that the managers of the Respondent closed their mind to the consideration of reasonable adjustments following the raising of the grievance by the Claimant in late June 2007. They failed to apply the principles set out in their own redeployment policy by considering first and foremost whether or not the Claimant's job could be adapted to enable her to discharge the role. The mindset of the Respondent is demonstrated by the fact that in February 2008 the Claimant was offered the two jobs which it was clear she could not do because of her disability. Indeed this was the very reason she was suspended. This must have been offensive to the Claimant. To offer a disabled employee a job which the employer knows that the disabled employee cannot do because of the disability is hurtful and inconsiderate. It is remarkable that the Respondent has not, even as yet, terminated the Claimant's employment notwithstanding it says no reasonable adjustments can be made to accommodate her.

23. Although Ms Cullen and Ms Kershaw had eliminated the possibility of the Claimant undertaking her role off the wards, in 2006, that was against the background of Dr Trafford's opinion that the difficulties the Claimant had were not founded in a medical problem, but the problem was a managerial one. This was not dissimilar to the other objection raised by the displaced employee from the Woodlea facility. Addressing the redeployment or restructuring of roles to fit in with the overarching reforms of mental health care creates practical challenges. Although Mr Smithson said that he was approaching this particular situation by application of the medical redeployment policy, assuming the Claimant's difficulties were disabilities, it was nevertheless without the medical support to engage the legal duty to make reasonable adjustments. Inevitably in such a situation the employers' position is not as constrained as when the duty arises. That position changed with the advent of Dr Parker's medical opinion. There should have been an early meeting at which careful consideration was given to rearranging the duties discharged by the Claimant to accommodate her whilst at the same time, of course, safeguarding the interests of the patients. In evidence Dr Deo conceded that this was possible. A meeting with Dr Deo, Ms Cullen, Mr Chadwick and Dr Parker, together with the Claimant and her representative was essential in order for various options to be explored. We are not satisfied that the Respondent could rely upon the earlier analysis undertaken by Ms Cullen the previous year of the indivisibility of functions discharged by a nursing assistant. One possibility canvassed by the Tribunal would have been to have provided the Claimant with some support from another nurse or worker during time she might have had to spend with patients on the wards. This need not have taken the form of a security guard, but another nurse or assistant working in very close proximity who could intervene in the event of the need for physical restraint, might have eliminated, or at least reduced to manageable proportions, any stress and anxiety. Another adjustment was to arrange as much contact with patients and the Claimant in the facilities surrounding the ward, and exploring further the type of compartmentalising of off ward duty as had been arranged in the 2 week trial period in May or June 2007. These were the types of measure the Respondent needed to examine in June and July of 2008 in order to ensure the Claimant could have returned to her job satisfactorily. The explanation of the Respondent that this had all been ground which they covered in the past was not persuasive. We were not satisfied that a combination of these adaptations, carefully considered and implemented, was not reasonably possible or would have generated undue risks.

24. Further possibilities of placing the Claimant at a CMHT should and could have been explored with other managers at those teams including Local Authority workers. No such enquiries were made after the Claimant's suspension. Simply to say that the Claimant could not work in that environment because she was only categorised on Band 3 was to close the Respondent's mind to the possibility of any reasonable adjustment. As Mr Chadwick himself said in evidence he would not rule out a Band 3 worker being employed within the community mental health team because anything is possible in such a reorganisation. In fact one of the claimant's colleagues, graded at band 3, had become an OT worker, but the explanation in his case was that he had certain technical skills. If such an accommodation could have been made in that case, then it is not clear why no such accommodation could be achieved for a disabled person, for whom there is a statutory obligation to make adjustments. There was no reason advanced why the claimant could not have continued to have provided a valuable contribution to the STR team, at least on a temporary basis, as she had during the placement at Darwen Resource Centre, albeit with a greater level of supervision comparable to that given by Mr Bibby. It had been envisaged that such an arrangement would have been put into effect at the Mount Pleasant Resource Centre from May 2007. Although the Claimant had dismissed that out of hand in her discussion with Mr Bibby, it was the type of option which required further exploration when the alternative was continued suspension. When faced with the earlier ultimatum of two options in May 2007, the Claimant accepted one. Ms Cullen said in evidence that the Claimant had some very valuable skills in engaging some very difficult people.

25. Mr Pierce seemed to believe that obtaining the NVQ3 would be the gateway for the claimant to obtain Band 4 regrading whereupon a job would then be available in a community team. The claimant could have enrolled on a course, whilst working temporarily in a community team such as Mount Pleasant Resource Centre, and might have achieved regrading by now. We were not satisfied that the Respondent could not redeploy the claimant into a CMHT, given the inconsistent and unclear account of how such posts were designed and allocated. This was an obvious area fertile for adjustment to accommodate the disability.

26. In all the circumstances therefore we find that the Claimant was subjected to a detriment as a consequence of a continued suspension in her work when she should have been gainfully employed. We find on a balance of probabilities that the Claimant would have been able to remain in work had the Respondent taken steps to explore all appropriate avenues after the 8th June 2007. The limited steps of Mr Smithson to keep an eye out for a suitable vacancy were wholly insufficient in the circumstances, given the very particular need to tailor duties to the Claimant's own capabilities. We therefore accept that the claimant has established that the duty arose, and that, in the absence of an adequate explanation, there was a breach of it. We have rejected the explanation advanced by the Respondent that there was nothing they could reasonably achieve, an attitude contributed to by frustration at the claimant's grievances and unwillingness to be flexible. A fresh and open minded reassessment in July 2007 would have avoided continued suspension, albeit the hours of work may have had to be varied or reduced. Continuing review of the situation would have been necessary. It may be that such review and evaluation of the competing demands on the service in the longer term and the ability of the Claimant to continue to provide flexibility would not be sustainable. Only that would become apparent when put into practice. We find, however, in the absence of an adequate explanation to the contrary, that it would have been possible to lift the suspension and provide work at least up until the end of March 2008."

1. Underlying all the various grounds of appeal there is an implicit premise which never surfaces as an explicit submission that employment tribunals have no right to question management decisions and should accept at face value all explanations which are given to them. There is an extensive jurisprudence setting out very clear limits to the way in which tribunals should approach their task. But this does not mean that a tribunal is precluded from reaching the view that this tribunal reached, namely that the Respondent closed their mind to the consideration of reasonable adjustment. In the older cases industrial tribunals were often referred to as juries (see the judgment of Lawton LJ in Western Excavating (EEC) v Sharp [1978] 1 All E.R.713). Just as juries are not obliged to accept expert evidence tribunals are not required to accept management opinion. The members of employment tribunals have a wide and rich experience of working life. It is patronising to suggest that they do not have the capacity to make their own evaluation of the evidence.

1. Trade unionists, managements and the legal and medical profession regularly claim that certain changes threaten the safety or the well-being of those whom they serve. The invoking of the public interest is sometimes justified; sometimes it is a cloak to disguise naked self interest and sometimes it is a ritual response to any suggestion of change. As Employment Judge Jones points out in his response to the schedule:

"In obviating any discriminatory provision, criterion or practice, employers usually have to depart from an arrangement they regard as ideal. It is a question of proportionality, and balancing the disadvantageous effect of the discriminatory practice to the employee against any disadvantage caused to the employer's organisation. We are not satisfied that this was an exercise the Appellants had undertaken, properly or all."

1. Ms Wedderspoon has set out a plethora of cases for the following propositions:

a) The ET failed to apply the appropriate standard of proof as set out in Project Management Institute v Latif [2007] IRLR 579.

b) That the Employment Tribunal relied upon material which did not form part of the explicitly pleaded case contrary to Abbey National PLC v Bascetta UKEAT/O403/08.

c) Failed to conduct a proper balancing act having regard to the statutory criteria in Section 18(b) (1).

d) Failed when assessing whether a step was reasonable to apply the objective standard contrary to Smith v Churchhill Stairlifts PLC [2006] IRLR 41 at Paragraph 45.

e) Failed to have regard to all the circumstances and to look at the wider implications; see The Chief Constable of Lincolnshire Police v Weaver UKEAT/0622/07/DM.

f) Made a perverse finding in that the balance of the evidence was that it was not practicable to remove ward based work.

1. Mr Mackenzie, solicitor for the Claimant, points out that the factual basis upon which much of this appeal is based is inaccurate and that the Tribunal were entitled to make their criticisms. In effect Mr Mackenzie says that this is an appeal against the fact finding role of the tribunal dressed up as an appeal on issues of law. The reality is, says Mr Mackensie, that the employer called Dr Deo to bolster their case and in effect he destroyed their case by making the concession which the Tribunal reiterate at paragraph 20 of the decision and which the Tribunal clearly found so important.

1. In reality we accept that this is a perversity appeal with copious wrappings of judicial authority which have little real relevance to the facts of this case. In effect the appeal is an attempt to seduce us into substituting our view of the merits of the case for that of the Employment Tribunal by a myopic textual analysis of the decision which enables us to say the Employment Tribunal misdirected themselves - an approach castigated by Lord Hoffmann in his stinging criticisms of the Court of Appeal (see Piglowaska v Piglowaski HL [1999] 1 WLR 1360 at 1372.l).

1. Of course, as Lord Hoffmann observed in that case, with hindsight all judgments could be improved. We do not consider that on its true reading the Tribunal confused what was possible with what was reasonable and we consider that the Employment Tribunal carried out the balancing act required by the Act.

1. We reject the suggestion that there was anything unfair about the conduct of the trial. Apart from the requirement that a court or tribunal act in good faith the overriding rules of natural justice are simply that a party against whom an allegation is made should know with sufficient particularity the nature of the allegation and have the opportunity to answer that allegation by calling evidence and or deal with the matter by written or oral argument. There is a dividing line, which can be recognised in a particular case albeit it is impossible to define as a matter of abstract principle, when the introduction of evidence or argument can be unfair since it raises matters about which there has been no prior forewarning and when it is permissible because it is no more than a refinement or extension of a matter which had already been raised. In any litigation it is always possible that the focus of a case may change during a hearing.

1. We do not consider that taken in its totality there was any unfairness in the way in which this case was heard and we do not consider there was any misdirection of law. We consider that none of the arguments raised in this case raise any real issue of perversity. We can understand that the management of this hospital trust did not like the findings of fact made by the Employment Tribunal. That does not constitute a ground of appeal. We therefore dismiss this appeal.