Appeal No. UKEAT/0340/08/RN

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 & 20 November 2009

Judgment handed down on 26 January 2010

Before

HIS HONOUR JUDGE PETER CLARK

MR R LYONS

MRS D M PALMER

PENINSULA BUSINESS SERVICES LTD (APPELLANT)

MS S MALIK (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR JOHN SAMSON (of Counsel)

Instructed by:
Messrs Steeles Law LLP Solicitors
3 The Norwich Business Park
Whiting Road
Norwich
Norfolk
NR4 6DJ

For the Respondent
MISS NAOMI LING (of Counsel)

Instructed by:
Messrs Shoosmiths Solicitors
Quantum House
Basing View
Basingstoke
Hampshire
RG21 4EX

PRACTICE AND PROCEDURE

Appellate jurisdiction/reasons/Burns-Barke

DISABILITY DISCRIMINATION

Inadequacy of reasons for Employment Tribunal findings in relation to s4(1) and (2) Disability Discrimination Act 1995. Observations on use of the Burns-Barke procedure. Late taking of new point on jurisdiction not permitted. Appeal allowed; case remitted for re-hearing by fresh Employment Tribunal.

1. The parties before the Manchester Employment Tribunal in this matter were Ms Sabeez Malik, Claimant and Peninsula Business Services Ltd, Respondent. We shall so describe them.

1. The Respondent provides advice on HR and employment issues to employers and representation in Employment Tribunal proceedings. The Claimant, who has attained impressive academic qualifications, suffers from visual impairment which, it is common ground, amounts to a disability within the meaning of s.1 Disability Discrimination Act 1995, as amended.

1. In September 2006 she applied to the Respondent for a position as HR Advice Consultant. On 13 September she was interviewed by Miss Gillespie for that post. Miss Gillespie formed the view that the Claimant had insufficient commercial experience for that post and the Claimant takes no issue on that assessment. However, Miss Gillespie plainly saw the Claimant's potential as a member of the Respondent's team. There was no vacancy at the time for an alternative post of trainee consultant, and in any event the Respondent's IT systems would require adaptation to accommodate the Claimant's disability. What happened was that Miss Gillespie consulted Clare Young of Blind in Business, which provides advice to employers as to how to make adaptations to accommodate disabled employees, and then invited the Claimant to trial a system called Supernova, which had been installed for her use by Mr Carruthers of that organisation at the Sale CAB where she had worked as a volunteer since 2004.

1. On 8 December the Claimant attended the Respondent's offices, tried out the Supernova software installed with the assistance of Mr Bray of the Respondent's IT Department and it was her evidence that she was then told by Miss Gillespie that she wanted the Claimant to join the Respondent as a trainee Investigations Consultant, which was a way of getting her in 'through the back door'. It was also the Claimant's evidence that she regarded that statement as an offer of employment which she there and then accepted.

1. No terms were discussed on 8 December. Indeed, the Claimant was not clear as to whether she would be joining the Respondent on a paid or unpaid footing. She was also limited as to the hours she could do.

1. On 21 December, by e-mail, Miss Gillespie indicated that the position would be paid, the full-time salary was £20,000 pa, pro-rated according to the hours worked. Miss Gillespie anticipated that the role of Investigations Consultant would be available in the New Year and she perceived that installing the new technology would not be a big job. It is common ground that such an adaptation was necessary for the Claimant to perform the role which Miss Gillespie had identified for her.

1. In the event there was considerable delay in installing the necessary technology at a time when the Respondent was struggling with other technical problems, particularly in relation to their telephone system, vital to an organisation which habitually provides advice to clients through that medium.

1. After a number of chasing e-mails, the Claimant finally decided on 2 May 2007 that she could wait no longer for the necessary adaptations to be made by the Respondent to allow her to commence work. She communicated that decision to the Respondent on 25 May, having first raised a grievance on 14 May. That was initially rejected by Miss Gillespie and later, on appeal, by Ms Eyre.

1. The Claimant commenced these proceedings on 1 June 2007. Her complaint was one of unlawful disability discrimination. In her particulars of claim, settled by her representative from the Trafford Law Centre, it was contended that she had been offered a position with the Respondent but had been unable to take it up due to the Respondent's failure to make reasonable adjustments to cater for the disadvantage which she suffered as a result of her disability. Her primary case was that she had been appointed to the position of Investigations Consultant; alternatively, she was an applicant for that position and the Respondent had failed to make a reasonable adjustment in their recruitment practices.

1. The claims were resisted and came on for substantive hearing before an Employment Tribunal consisting of Employment Judge Brain, sitting with Mr Brogan and Mr Anslow, initially on 22-23 November 2007. The hearing was adjourned part-heard until 4 January 2008. During that intervening period it seems that Mr Anslow had contacted the Respondent in connection with a job opportunity. In these circumstances he rightly recused himself at the 4 January hearing and, with the consent of the parties, the case proceeded before the Employment Judge and remaining member.

1. By their Judgment with reasons given on 18 January 2008 the Employment Tribunal held:

(1) At paragraph 68

"68. It is clear that the duty not to discriminate against a disabled person extends not only to employees but also prospective employees. We refer to Section 4(1) of the DDA. We have found that the respondent offered a position to the claimant of Trainee Investigations Consultant. We have found as a fact that the claimant accepted that position and therefore became an employee. Section 4(2) is therefore engaged. Even if we are wrong on that, Section 4(1) is plainly engaged in the circumstances of this case, dealing as it does with prospective employees. The claimant was more than a job applicant and the respondent plainly intended to offer her employment once the IT difficulties were resolved. Had the respondent resolved those IT difficulties, the claimant would, and should, have been in post."

(2) The relevant provision criterion or practice (PCP) for the purposes of s.4A(1) DDA was the IT practices of the Respondent (paragraph 65). No issue arose as to any physical feature of the premises (paragraph 66).

(3) The Claimant was put at a material disadvantage compared with two able-bodied comparators employed by the Respondent, Sue Hargreaves and Gemma Bennett.

(4) The Respondent had failed to discharge its consequent duty to make reasonable adjustments under s.4A(1); that failure was in the Respondent's delay in organising suitable adaptations to their technology to cater for the Claimant's disability.

(5) That failure constituted a breach of duty under s.3A(2) (paragraph 69) and disability related discrimination under s.3A(1) (paragraph 70).

1. Having found unlawful discrimination the Employment Tribunal went on to award the Claimant £7,500 in respect of injury to her feelings and sums in respect of past and future loss of earnings. The total award was £21,659.86.

1. Against that Judgment the Respondent appealed. The Notice of Appeal raised four grounds:

(1) That the Employment Tribunal misconstrued the parties contractual relationship (Reasons, paragraph 68). It was contended in the original Grounds of Appeal that there was no evidence to support a finding that any offer of employment by the Respondent was accepted by the Claimant so as to create a contract of employment between the parties. Contained within this ground of appeal (paragraph 22) is a complaint that the Employment Tribunal's reasoning on this aspect was not 'Meek compliant' (see Meek v. Birmingham CC [1987] IRLR 250). (The Meek point).

(2) That the Employment Tribunal was wrong to find that the Respondent had failed to make reasonable adjustments under s.3A(2) DDA. (The reasonable adjustments point). It is material to note that this ground of appeal proceeds on the basis that the Claimant's complaint was made under s.4(1)(b) DDA only.

(3) An allegation of apparent bias made, not against the member of the Employment Tribunal, Mr Anslow, who recused himself, but against Employment Judge Brain (the bias point). The appeal on the bias point was taken as a preliminary point before a division presided over by Slade J which, by a Judgment handed down on 23 July 2009, rejected that ground of appeal. We are therefore not concerned with the bias point.

(4) The award of £7,500 for injury to feelings was excessive (the remedy point).

1. Before considering the three live grounds of appeal it is first necessary to deal with three preliminary points, which may be headlined as (a) amendment (b) s.32 Employment Act 2002 and (c) Burns/Barke.

1. The original Notice of Appeal, settled by Mr Samson who did not appear below, is dated 29 February 2008. On 5 November 2009 application was made by the Respondent for permission to amend the original grounds of appeal. That application was dismissed by the Registrar by Order dated 10 November on the grounds that it was too late. The hearing before this division was listed for and took place on 19-20 November.

1. The application to amend was renewed, alternatively the Registrar's Order was appealed to this full division. We find it unnecessary to resolve that renewed application/appeal. The amendments related to the first ground of appeal only. Significantly, the Respondent did not pursue the original contention that there was no evidence to support a finding that an offer of employment was made by the Respondent and accepted by the Claimant. For reasons which follow in relation to the Meek point we do not intend to resolve that issue, leaving it instead to the next Employment Tribunal.

1. Section 32 EA 2002 was repealed by s.1 EA 2008 with effect from 6 April 2009. However, the transitional provisions contained in SI 2008/3232 preserved the application of s.32 to the present case, commenced well before the repeal.

1. Section 32(3)(b) requires a delay of at least 28 days between, for present purposes, the lodging of a written grievance with the employer (where appropriate) and presentation of a complaint (by Form ET1) to the Employment Tribunal.

1. In the present case the Form ET1 was presented on 1 June 2007. On its face (paragraph 3.5) the relevant written grievance was sent to the Respondent on 14 May 2007, less than 28 days before presentation.

1. It is common ground that no grievance is required under paragraphs 6 or 9 of Schedule 2 to EA 2002 where the DDA complaint is brought under s.4(1); however a grievance is required for a s.4(2) complaint.

1. Section 4 DDA provides, so far as is material:

"(1) It is unlawful for an employer to discriminate against a disabled person –

(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment;

(b) in the terms on which he offers that person employment; or

(c) by refusing to offer, or deliberately not offering him employment.

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs -

(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

(d) by dismissing him, or subjecting him to any other detriment."

1. We have earlier set out paragraph 68 of the Employment Tribunal's reasons in full. In short, the Employment Tribunal found that the Claimant was a s.4(2) employee; alternatively a s.4(1) job applicant.

1. The s.32 point was raised by Mr Samson for the very first time in his skeleton argument prepared for the hearing before us, dated 12 November 2009 and lodged with the EAT the following day (paragraphs 29-40).

1. The thrust of Mr Samson's submission is that insofar as the Employment Tribunal found that the Claimant was a s.4(2) employee they had no jurisdiction to make that finding by reason of the effect of s.32(3)(b) EA 2002; a written grievance was required for such a claim and the grievance relied on was submitted less than 28 days before presentation of the Form ET1.

1. He acknowledges that the s.32 point is taken very late in the day, but he submits that we should entertain it because it goes to the Employment Tribunal's jurisdiction and is a 'knock out point' which requires no further factual investigation by the fact-finding Employment Tribunal (see Glennie v. Independent Magazines (UK) Ltd [1999] IRLR 719 (CA)). He draws attention to the observation of Buxton LJ in Carter v. Ahsan [2005] ICR 1817, paragraph 82, that it is the law that an objection as to jurisdiction can be taken at any stage in the proceedings; an observation followed by Slade J in Stockton on Tees BC v. Aylott (UKEAT/0401/08/CEA, 11 March 2009), paragraphs 55-59.

1. Miss Ling opposed the Respondent's application to raise this new point late in the appeal for both procedural and substantive reasons more particularly set out at paragraphs 24-35 of her supplemental skeleton argument dated 17 November 2009, lodged on 18 November. We have considered the s.32 point raised by Mr Samson and reject it for the following reasons.

1. First, the chronology. The Claimant's Form ET1 was accepted by the Employment Tribunal; it was not rejected under ET Rule 3(2)(b). That may be because it was treated as a s.4(1) claim only; not an alternative claim under s.4(2) DDA. No s.32 point was taken in the Respondent's Form ET3; nor at any interim hearing, such as a Case Management Discussion, nor at the substantive Employment Tribunal hearing before Employment Judge Brain's Tribunal held on 22-23 November 2007 and 4 January 2008. It was not then taken in the original Notice of Appeal; at the hearing before Slade J and members on the bias point, nor indeed in the draft amended Notice of Appeal lodged on 5 November 2009.

1. Mr Samson makes the point that insofar as the claim was treated as having been brought under s.4(1) only, then the Claimant required permission to amend from the Brain Employment Tribunal to add an alternative claim under s.4(2). But the difficulty with that submission is that s.4(2) was plainly in play at the Employment Tribunal substantive hearing without objection by Miss Singer, then appearing on behalf of the Respondent. Neither did she raise the s.32 point at that time. In our judgment and in the exercise of our discretion it would be wholly unjust to allow the Respondent to take the point now, thus giving rise to the possibility of a knock out blow to the s.4(2) claim.

1. Is it truly a knock out point? We are not persuaded that it is. Had the original Form ET1 been treated by the Employment Tribunal as raising a claim under s.4(2) DDA then that part of the claim would have been rejected under s.32(3)(b) EA 2002; the Claimant would then have been entitled to lodge a second Form ET1 more than 28 days after the grievance letter of 14 May. Limitation would not have been an issue. If not, it was open to the Respondent to take the point at the hearing (no CMD having been held) that the s.4(2) claim could not be argued absent permission to amend. If an amendment application had been made at the hearing it would have been open to the Employment Tribunal to grant permission, the s.32 point not having been previously taken. In these circumstances we do not feel compelled to take and uphold the s.32 point on appeal at this very late stage.

1. The original Notice of Appeal having raised, in ground 1, the contention that there was no evidence before the Employment Tribunal that if an offer of employment was made by the Respondent it was not accepted by the Claimant, the Claimant, by her Answer dated 14 August 2009, sought to put before this EAT notes of evidence given below which, it was said, supported the Employment Tribunal's finding of a concluded contract (reasons, paragraph 68). Failing agreement between the parties, application was made for the Employment Judge's notes of evidence.

1. No agreement as to the evidence given below was reached between the parties and by letter dated 15 October 2009 the Claimant's solicitors renewed their application for the Employment Judge's notes. That application was referred to me by the Registrar on 11 November and on that day I directed that the Employment Judge be asked the following question, as a matter of urgency:

'By reference to his notes of evidence and the documentary evidence before the Employment Tribunal, on what evidence did the Employment Tribunal base their finding of fact (reasons, paragraph 68) that the Claimant accepted the post of Trainee Investigations Consultant, which the Respondent had offered, whereby the Claimant became an employee of the Respondent so that s.4(2) of the Disability Discrimination Act 1995 was engaged?'

1. The Employment Judge replied with admirable celerity, for which we are grateful, on 17 November 2009. In that letter, he dealt with the evidence relating to the making of the offer of employment by the Respondent, but not its acceptance by the Claimant. Accordingly on the same date, the Claimant's solicitors asked for the Employment Judge's amplified reasons for why he made a finding of fact that the offer was accepted. That enquiry was referred to Employment Judge Brain, who responded the same day. He said that there was 'no or no satisfactory evidence to support the finding that she (the Claimant) accepted the offer'. He then proferred the opinion that the case turned on s.4(1) DDA, to which the issue of acceptance was of no relevance.

1. We were troubled by that response and referred counsel, during the course of argument, to the valuable guidance provided by Mummery LJ on the application of the so-called Burns/Barke procedure in this EAT; see Woodhouse School v. Webster [2009] ICR 818, paragraphs 23-29.

1. Applying that guidance it was clearly inappropriate for the Employment Judge, who sat with a lay member, to unilaterally abandon the Employment Tribunal's principal finding, expressed at paragraph 68 of their reasons, that a contract of employment was made between the parties, thus engaging s.4(2) DDA. As Mr Samson correctly points out, it was not open to the Employment Judge alone to effectively carry out a review of the full Employment Tribunal's judgment and to vary that finding.

1. Against the background of the Employment Judge's answers to the questions raised we return to paragraph 68 of the Employment Tribunal's reasons and the Respondent's complaint of inadequacy of reasoning.

1. This was an unusual case, in our experience, in which a real issue arose as to whether the Claimant could rely on either s.4(1) or 4(2) DDA as a gateway to bring a compliant of unlawful discrimination under s.3A(1) and/or (2).

1. Both possibilities under s.4 required careful analysis by the Employment Tribunal. So far as s.4(2) was concerned, before the protection against unlawful discrimination was engaged it was necessary to show an existing contract of employment. At paragraph 68 the Employment Tribunal state:

"We have found as a fact that the Claimant accepted that position and therefore became an employee."

1. However, it is common ground between the parties and apparent to us from reading the whole of the Employment Tribunal's reasons that no such factual finding was made.

1. Further, the position has, unhappily been further undermined by the Employment Judge's second letter of 17 November. He said that there was no or no satisfactory evidence of acceptance by the Claimant. We have earlier observed that Mr Samson drew back from the original contention in the Notice of Appeal that there was no evidence to support a finding of acceptance by the Claimant; as Miss Ling points out, evidence to that effect was given orally by the Claimant. However, the Employment Judge does not explain why the evidence received was unsatisfactory when the full Employment Tribunal thought they had made a finding that acceptance took place.

1. Turning to the alternative finding under s.4(1), the difficulty we have is that the Employment Tribunal provides no indication within their reasoning in paragraph 68 as to which part of s.4(1) applied to the facts found. Mr Samson argues that none of (a) (b) or (c) of s.4(1) apply; Miss Ling contends that the Employment Tribunal must have found that s.4(1)(c) applied in this case. The Respondent's failure to make timeous adjustments to the necessary technology amounted to deliberately not offering the Claimant employment. However, in our judgment the Employment Tribunal simply does not appear to have grappled with the application of the precise wording of s.4(1).

1. Put shortly, we accept Mr Samson's submission that the Employment Tribunal's reasoning at paragraph 68, as further explained by the Employment Judge, cannot stand, both in relation to the s.4(2) and 4(1) issues.

1. Mr Samson submits that, leaving aside the s.32 point which we have rejected, the finding under s.4(2) cannot stand on the evidence. We disagree. There was evidence capable of supporting a finding of a concluded contract of employment; however such a finding can only be made by a fact-finding Employment Tribunal, not by this EAT.

1. Miss Ling invites us to uphold the alternative finding by the Employment Tribunal under s.4(1)(c). We are quite unable to do so. Further factual findings and a proper application of s.4(1)(c) by the Employment Tribunal are necessary. In any event, Miss Ling has further argued before this EAT that the case may, in the alternative, fall within s.4(1)(a). That alternative submission, plainly open to her, merely underscores the inadequacy of the original Employment Tribunal's reasoning on this part of the case.

1. It necessarily follows that this Employment Tribunal's Judgment cannot stand and must be set aside for want of adequate reasoning. The parties literally do not know why they have won or lost on the s.4 question. In these circumstances we agree with Mr Samson that the appropriate course is to halt our enquiry at this stage. In setting aside the Judgment and remitting the case for rehearing questions as to whether there was a failure to make reasonable adjustments and the amount of the award for injury to feelings, should those questions arise, must be left to the next Employment Tribunal for consideration afresh.

1. This appeal is allowed. The matter will be remitted to a fresh Employment Tribunal for rehearing. The case will return to the Manchester region; Mr Samson has not persuaded us that it ought to be transferred to a different region. For the avoidance of doubt at the remitted hearing (see Aparu v. Iceland Frozen Foods (No. 2) [2000] IRLR 196) it will not be open to the Respondent to raise the s.32 point in relation to the s.4(2) DDA argument. The next Employment Tribunal will hear and determine the question (a) whether a concluded contract of employment was made between the parties so that s.4(2) was engaged; alternatively, (b) whether, on the facts found by the next Employment Tribunal, the Claimant can rely upon s.4(1)(a) or (c) in support of her complaint of unlawful discrimination contrary to s.3A(1) and/or (2) DDA.