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Appeal No. UKEAT/0509/09/LA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 April 2010

Before

THE HONOURABLE MRS JUSTICE SLADE

MR M CLANCY

MR I EZEKIEL

MRS J K RILEY (APPELLANT)

ROYAL BANK OF SCOTLAND PLC (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MISS LUCINDA HARRIS (of Counsel)
Instructed by:
Messrs Thompsons Solicitors
247 The Broadway
Wimbledon
London
SW19 1SE

For the Respondent MR ANTONY SENDALL (of Counsel)
Instructed by:
Messrs Brodies LLP Solicitors
2 Blythswood Square
Glasgow

G2 4AD

DISABILITY DISCRIMINATION – Reasonable adjustments

The Employment Tribunal did not err in deciding that the Respondent had not failed in their duty to make reasonable adjustments pursuant to the Disability Discrimination Act 1995 Section 4A. On a fair reading of its judgment the Employment Tribunal considered all the relevant issues and concluded that the Respondent had devised and implemented a reasonable adjustment in its rehabilitation programme.

1. This is an appeal from the Judgment of an Employment Tribunal entered in the Register on 14 September 2009. The Appellant had alleged that the Respondent was in breach of its duty to make reasonable adjustments under the Disability Discrimination Act 1995 Section 4A. The Employment Tribunal dismissed that claim. References below to paragraphs are to the judgment of the Employment Tribunal unless otherwise indicated.

1. We will briefly outline the chronology of events. The Appellant is a customer advisor at a branch of the Respondent. In January 2007 she suffered an injury to her hip at work. She was off sick by reason of that injury. On 2 April 2007 she returned. On 13 April 2007 she was away from work with pain in her hip. Her return to work was discussed at a meeting on 2 November 2007. At that meeting her trade union representative was also present and a rehabilitation programme was discussed and agreed, although the details were to be worked at.

1. On 26 February 2008 the Appellant returned to work. She had a return to work interview. The rehabilitation programme devised for her envisaged that there would be a phased return to normal duties with initially reduced hours and much modified responsibilities. It was envisaged that the period of her rehabilitation would be some six weeks. The progress of the Appellant and the programme would be reviewed in that period. As it happened, the Appellant did not progress beyond the plan for the second week of the rehabilitation in all the months when she remained at work, which was until 3 June 2008. She ceased working on that date with a severe pain in her back and has not worked since. The Appellant was, therefore, on the rehabilitation programme from 26 February 2008 to 3 June 2008.

1. Miss Harris who appeared for the Appellant before us, as she did before the Employment Tribunal, advanced the grounds of appeal under three headings. First, that the Employment Tribunal failed to apply the stepped approach set out in Environment Agency v Rowan [2008] ICR 218; second, that it failed to give adequate reasons for its decision; third, that it reached a perverse conclusion in holding that there was:

"No evidence from which the Tribunal could determine that the failure to provide a posture chair and footstool placed the Claimant at a substantial disadvantage in comparison with her hypothetical comparator."

1. The Disability Discrimination Act 1995 Section 4A(1) provides:

"Where a provision, criterion or practice applied by or on behalf of an employer […] places the disabled person concerned to 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."

1. The Employment Tribunal in paragraph 20.1 set out the provisions, criteria or practices which the Appellant alleged that the Respondent applied to her in the period of her return to work between February 2008 and her absence from 3 June 2008:

"a) Requiring the Claimant to carry out cashier duties which involved her sitting on the counter for long periods of time and pulling heavy trays back and forth;

b) Requiring the Claimant carry out counter assistant duties;

c) Requiring the Claimant to "work the queue" which involved the Claimant walking along the queue of customers to see if she could provide assistance;

d) Requiring the Claimant to supervise a new cashier;

e) Requiring the Claimant to key in "3 paper based ISA accounts and savings accounts";

f) The Respondent also failed to accommodate the Claimant's disability by failing to provide an appropriate posture chair and footstool."

1. At paragraph 20.2 the Tribunal record:

"The disadvantage that the Claimant suffered as a result of the above was that she was unable to carry out her work due to her disability and resulted in her suffering injury."

1. At paragraph 34 the Tribunal referred to Section 4A(1) of the Disability Discrimination Act 1995 and it held as follows:

"In any event, the acknowledged difficulties which the Claimant had in performing the full extent of normal duties at work clearly, in the Tribunal's unanimous judgment, brought about a situation in which the Respondent was aware that the Claimant had a physical impairment which had a substantial adverse effect on her ability to carry out normal day to day duties and therefore the Respondent could reasonably be expected to know that the Claimant had a disability which was likely to be affected in the way mentioned in Section 4A(1) of the Act. Accordingly, the duty to make reasonable adjustments was engaged."

1. At paragraph 16 the Employment Tribunal made a finding of fact regarding the rehabilitation plan in which it held:

"The rehabilitation plan was envisaged to last for a period of six weeks, three hours per day, for three days per week for the first week, four hours per day for three days per week for the second week and increasing gradually to six hours per day, six days per week. Because of the length of the Claimant's absence from work, the programme would operate on a phased basis with regular reviews with the Branch Manager and time would be needed for the Claimant to familiarise herself with new products etc. She would effectively be working in a supporting role in the branch."

1. The Tribunal record that it was noted in the minutes of the meeting on 2 November 2007 that:

"Obviously with her back problem there would be no question of her going on the counter initially."

1. The Respondent envisaged that after the period of rehabilitation, gradually the duties the Appellant would perform would increase and vary. There is no suggestion and no finding anywhere in the Tribunal's judgment that these different duties were to be imposed. The effect of the Tribunal's Judgment and findings is that the Respondent proceeded with the agreement of the Appellant or, at the very least, without her objection to carrying out certain duties and roles.

1. At paragraph 35 the Tribunal record that it did not accept that the rehabilitation plan envisaged that in no circumstances would the Appellant be required or permitted to carry out the duties to which the Appellant had referred, namely:

"Cashier/counter duties or "working the queue", supervising a new cashier or requiring her to key in paper based ISA accounts and savings accounts as submitted by and on behalf of the Claimant. She would "initially" be relieved of certain of those duties but it was equally envisaged that she would hopefully progress to a situation in which they could be safely and properly undertaken by her."

1. The list in paragraph 35 was a clear reference to the provisions, criteria and practices referred to in paragraph 20 of the Employment Tribunal's Judgment in which it set out the provisions, criteria and practices of which the Appellant complained as placing her at a substantial disadvantage.

1. Of the timescale over which the rehabilitation plan was to operate is concerned, at paragraph 26 the Tribunal observed that:

"For whatever reason, the rehabilitation plan did not proceed as anticipated. The forecasted six week period in fact continued until the Claimant's last day in work and the proposed increase in daily working hours did not get beyond the second week arrangement."

1. Of counter duties, which were the subject of the Tribunal's observation and the quote from the meeting of 2 November 2007 set out in paragraph 16 of the Tribunal's Judgment, they record: "On 3 June 2008, because of staff shortages, the Claimant was asked to do counter duties." It was at the end of her shift, having done those duties that the Appellant told the Tribunal that she felt an agonising pain in her lower back.

1. The conclusions of the Tribunal were that the Appellant did have a disability which meant that she was not able to carry out the full range of her duties as a customer advisor. There was a rehabilitation plan to enable her to return to work on a phased basis, which was to be kept under review. On a fair reading of its judgment the Tribunal made a finding that the Respondent had not failed to make reasonable adjustments. Accordingly they dismissed the Appellant's claim.

1. As the case developed in oral submissions before us all grounds of appeal, for understandable reasons, became interlinked but we will consider them, to a certain extent, separately.

1. Miss Harris contended that the rehabilitation plan, on which the Employment Tribunal appeared to have placed considerable weight, was a red herring. She says that the Tribunal erred in failing to apply the stepped approach in Employment Agency v Rowan for the consideration of whether there has been a compliance with the reasonable adjustment requirement of the legislation.

1. In her skeleton argument she referred to the important guidance in Rowan at paragraph 27:

"[…] 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" […] 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 section 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."

1. Miss Harris contended that the Employment Tribunal should have undertaken this inquiry in relation to each of the provisions, criteria or practices which it set out in paragraph 20.1. Although she acknowledged that not all relate to disability in at least one case they relate to confidence building after being away for a long period of time from the workplace. Further, Miss Harris said that the Employment Tribunal must be taken as finding that the Appellant was at a substantial disadvantage but failed to find in relation to each provision, criterion or practice what would have been a reasonable adjustment.

1. Miss Harris contended that the Employment Tribunal erred in considering whether the breach of the rehabilitation programme was reasonable. Reasonableness, she contended, applied at the adjustment stage not to the breach stage, which she contended was the stage at which this Employment Tribunal considered reasonableness. Those arguments, she said quite rightly, overlap to a certain extent with ground 2 of the appeal, namely that the Judgment of the Employment Tribunal was insufficiently reasoned to enable the parties to know whether those steps in the reasoning were or were not taken. The points made in support of the first ground included the points under that second ground of appeal, inadequacy of reasoning.

1. So far as the third ground of appeal is concerned, Miss Harris contended that the Employment Tribunal was perverse to conclude in paragraph 36 of its Judgment that whilst it accepted that the Respondent could perhaps have done more to progress the procurement of the posture chair and the footstool, there was no evidence from which the Tribunal could determine that the failure to do so placed the Appellant at a substantial disadvantage in comparison with her hypothetical comparator. Further the evidence did not support a conclusion that neither the Appellant nor her union representative made the sort of representations regarding such equipment that would be expected if it was seriously contended that this was of significant importance.

1. It is to be noted that on this perversity appeal no request had been made for notes of evidence to be produced. Miss Harris recognised this, but contended that the perversity argument can be made out internally from the Judgment of the Employment Tribunal.

1. Mr Sendall, for the Respondent, submitted that there is no error of law in the Judgment of the Employment Tribunal. The Employment Tribunal went through all the required stages of the consideration of whether there had been a breach of the requirement to make reasonable adjustments. The rehabilitation plan was the reasonable adjustment and it was held to be reasonable. That rehabilitation plan, unsurprisingly, was reviewed and modified over time as one would expect.

1. Mr Sendall agreed that paragraph 26 of the Judgment was perhaps not entirely clear. However, the Judgment of an Employment Tribunal is not to be read as a statute and this Judgment does tell the parties why one has won and the other lost.

1. So far as the perversity ground is concerned Mr Sendall observed that no notes of evidence have been obtained. The Tribunal considered the complaint of failure to provide the chair and the footstool in its overall assessment of whether adjustments were reasonable. Mr Sendall submits that there is nothing wrong with the Tribunal's decision and Judgment.

1. We agree with Mr Sendall. Employment Tribunals have to apply the provisions of the Disability Discrimination Act 1995. The fact that this Employment Tribunal did not set out section 4A in terms, nor the case of the Environment Agency v Rowan, does not mean that they did not have those in mind. The Tribunal, at paragraph 2 of its Judgment referred to the fact that it had regard, amongst other matters, to judicial authorities referred to by the parties' representatives.

1. Miss Harris, who appeared below, very frankly and properly said that, because she could not exactly recall whether she referred the Tribunal to Environment Agency v Rowan, she could not categorically say that she did. However having regard to the importance which she places on Rowan in the appeal before us, it is likely that it would have been referred to.

1. In any event, provided an Employment Tribunal adopts the correct approach in applying a statute, the fact that it does not refer to a particular authority, is not an error of law. In this case, it is apparent on a fair reading of the Judgment that the Tribunal did make decisions on the material steps required by the application of 4A(1). The Tribunal held that, first, the Appellant was a disabled person; second, that she was at a substantial disadvantage in comparison with persons who are not disabled, having regard to the application of a provision, criterion or practice, that being the requirement to carry out the full range of duties of a customer adviser; third, that the Respondent was under a duty to make reasonable adjustments; finally, that the rehabilitation programme, which, as has been observed in the course of this hearing, is at the heart of this case, was a reasonable adjustment. It was not a red herring but was the adjustment made by this employer to cater for the needs of the disabled Appellant.

1. The reasonable adjustment, the rehabilitation plan was itself adjusted over time. There is no finding of fact that any modifications or any slight departure from the plan were imposed without the consent of the Appellant; quite to the contrary. Further, it is to be noted that the period of the rehabilitation plan was extended. In particular, the hours worked were not escalated as had been planned so that the number of hours to be worked by the Appellant was not progressed or increased beyond those for the arrangement for the second week.

1. At first blush it may have seemed that the reasons given by the Tribunal were somewhat difficult to follow to enable the parties to know whether it had considered and decided on each step required by the statute. However, on a proper reading of this Judgment, it can be seen that the Employment Tribunal did consider, and properly consider, all the matters that it was required to in dealing with a claim under Section 4A of the Disability Discrimination Act 1995.

1. The Tribunal's finding with regard to the chair and footstool was part and parcel of the issue of whether a reasonable adjustment had been made. On a fair reading of the Judgment, the Employment Tribunal considered reasonableness in context of the adjustment at issue not, as has been suggested by the Appellant, as to whether a failure to provide a chair and footstool was or was not reasonable.

1. This Employment Tribunal reached its decision on the facts. There was no error of law. The Judgment was adequately reasoned. This appeal fails and is dismissed.