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Appeal No. UKEATS/0047/09/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET EDINBURGH EH3 7HF

At the Tribunal

On 9 June 2010

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) (SITTING ALONE)

SCOTTISH OPERA LTD (APPELLANT)

MR STEPHEN WINNING (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MS GINA WILSON (Solicitor)
Messrs MacRoberts Solicitors
152 Bath Street
Glasgow
G2 4TB

For the Respondent
MR JAMES MACDONALD (Advocate)

Instructed by:
Messrs Jeffrey Aitken Solicitors
Fortune House
74 Waterloo Street
Glasgow
G2 7DA

**SUMMARY**

JURISDICTIONAL POINTS – 2002 Act and pre-action requirements

DISABILITY DISCRIMINATION – Reasonable adjustments

Claimant incapacitated from driving duties as a result of a seizure – Dismissed - Claim originally pleaded as unfair dismissal – Seeks to amend to claim under Disability Discrimination Act 1995 that dismissal was the result of a failure to make reasonable adjustments that would have permitted him to remain in employment but not undertake driving duties – Employer resists on basis that Claimant had not lodged a corresponding grievance and that claim was accordingly debarred by s.32 of Employment Act 2002 – Tribunal holds that grievance procedure did not apply by reason of reg. 6 (5) of Employment Act 2002 (Dispute Resolution) Regulations 2004 and allows amendment.

**HELD: **Tribunal correct to apply reg. 6 (5) – It was immaterial that as a matter of formal analysis the dismissal was the result of the acts complained of rather than being relied on as itself an act of discrimination.**THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)**

1. The Claimant was employed by the Appellant, Scottish Opera Ltd, as a technician/driver. Part of his job involved driving vehicles for which he required a HGV licence: he was one of two employees in that position. On 1 September 2007 he suffered a seizure at work. DVLA revoked his HGV licence for ten years. The Appellant took the position that in those circumstances the Claimant was unable to do his job and invoked its incapacity procedure. The processes seem to have taken some time, but he was eventually given notice of dismissal expiring on 30 September 2008. He pursued an internal appeal, but the appeal was dismissed on the very day on which his notice expired.

1. On 15 December 2008 the Claimant presented a claim in the Employment Tribunal. The ET1 contained a claim only under "box" 5 – unfair dismissal. The particulars of his claim under that head read as follows:

"Having suffered a single seizure on 1 September 2007 I lost my HGV licence. Scottish Opera have since dismissed me on the grounds of incapability. I believe that my dismissal is unfair since (amongst other factors) I am not incapable of doing the vast majority of the tasks involved in my job description. Indeed, only a very small percentage of my job as orchestra Technician/Driver involved driving an H.G.V. Scottish Opera have claimed that their reasons for my dismissal are based entirely on the loss of my H.G.V licence. If Scottish Opera feel that the loss of my H.G.V licence makes me incapable of doing my job, the following points should be considered.

1. The company did not hire another driver from the date of my collapse in September 2007 until my dismissal an 30 September 2008

2. Working with one driver did not put Brian Murphey (Scottish Opera's other Orchestra Technician) over his legal driving hours.

3. Having submitted a three month advanced driving schedule to the company, it was clear that even in a very busy week, driving hours never exceeded 16.5 hours with the average being under seven hours per week. Legislation states that a driver can drive 90 hours per fortnight.

4. Other Scottish orchestras only use one driver.

5. I am perfectly capable of attending to the myriad of other tasks that I am employed to do.

Scottish Opera claimed that the reason it was impossible to continue with only one orchestra Technician/Driver plus one fully trained and experienced orchestra Technician was that they need the flexibility of having two drivers for scheduling purposes (I refer to point 1 above to disprove this) and also for the eventuality that the driver became ill. During my consultations to keep my job, I referred the company to the working practice of the BBC Scottish Philharmonic Orchestra who have a pool of part-time drivers upon whom they can call. My suggestion that this could be used as a cheap and flexible solution was ignored. The drivers charge a fixed fee of £120 per day which is not prohibitively expensive and would allow reasonable adjustment to accommodate me in my job."

The phrase "reasonable adjustment" in the final sentence might suggest that the Claimant intended to rely on alleged breaches by the Appellant of its duties under section 4A of the Disability Discrimination Act 1995, but that may not be a safe inference: the phrase had been used, though without any explicit reference to the Act, in at least one letter sent to him by the Appellant, and he may have adopted it without any awareness of its possible implications. Be that as it may, the Claimant made no entry in the part of the ET1 –box 6 – designated for claims of discrimination, and in those circumstances the pleading cannot be read as raising any claim under the 1995 Act.

1. At the stage that the Claimant presented the ET1 he was not legally represented. But he subsequently instructed solicitors, Jeffrey Aitken, and on 23 April 2009 they wrote to the Tribunal as follows:

"We refer to the above and write to request leave to amend the Claimant's ET1 in terms of Rule 10 of The Employment Tribunals (Constitution Etc) Regulations 2004 Schedule 1 to include a claim under the Disability Discrimination Act 1995 arising from the Respondents' failure to adhere to its duty to make reasonable adjustments under Section 6 of the Act.

Reference is made to this within the original claim submitted by the Claimant himself and this right of action arises from the facts as expressed within the original ET1."

(The reference to "section 6" is a slip. Section 6 was re-enacted, with amendments, as section 4A of the 1995 Act by virtue of the Disability Discrimination Act 1995 (Amendment) Regulations 2003.) The Appellant's solicitors, MacRoberts LLP, objected; and a pre-hearing review was fixed for 21 July 2008 in order for the point to be determined. The hearing duly took place before Employment Judge MacMillan sitting in Glasgow. The Claimant was represented by Ms April Campbell of Jeffrey Aitken and the Appellant by Ms Gina Wilson of MacRoberts. The Judge decided to allow the amendment. His formal Judgment and written Reasons were sent to the parties on 28 July.

1. This is an appeal against that decision. The Appellant was again represented by Ms Wilson, but the Claimant was represented before me by Mr James MacDonald of counsel.

1. The starting-point must be to identify the terms of the proposed amendment. Jeffrey Aitken's letter of 23 April does not contain any precise formulation. That was unsatisfactory, and the Judge at the hearing rightly asked Ms Campbell to provide a definitive written draft. She apparently did so, but unfortunately neither party has a copy of what was submitted; and the Judge does not reproduce it in his Reasons, saying only that it "was in similar terms" to the contents of the letter. Fortunately, Ms Wilson kept a note, which reads as follows:

"The Respondents discriminated against me in terms of the DDA in that they failed to make reasonable adjustments in response to my request to engage drivers following my diagnosis of epilepsy and tendency to seizures."

(Although it is helpful to have that note, and I have no reason to doubt its accuracy, I am bound to observe that it is unsatisfactory not to have an authoritative record. Clear and accurate pleadings are of importance in all cases, but particularly in discrimination claims. It is essential that parties seeking permission to amend to introduce such a claim formulate the proposed amendment in the same degree of detail as would be expected had it formed part of the original claim; and tribunals should ensure that the terms of any such proposed amendments are clearly recorded.)

1. In fact, even Ms Campbell's formal draft, as recorded by Ms Wilson, is unsatisfactory. It does not identify with any precision the adjustments which it is said that the Appellant failed to make, nor the dates of the alleged failures (or, if they are said to have continued over a period, what that period was). Nor does it refer to the specific provisions of the 1995 Act: that is not essential, but it is a useful discipline. In view of the course which the argument before me took, I asked Mr MacDonald to provide a further draft, without prejudice to any objection which Ms Wilson might have. He produced a draft at short notice in the course of the hearing; but when it became clear that I was going to have to reserve judgment I gave him permission to lodge a definitive draft within seven days, with liberty to Ms Wilson to put in submissions in response. The draft which he has now produced proposes the inclusion of a claim in box 6 of the ET1 in the following terms:

"I was discriminated against in terms of section 3A(2) of the Disability Discrimination Act 1995 by reason of the failure by the Respondents to make reasonable adjustments in response to my requests that it do so. In particular, they failed to engage other drivers, or to engage me on other duties which I was capable of performing. My dismissal, and the dismissal process, occurred because of this failure to make reasonable adjustments, and amounts to a culmination of an ongoing failure on the part of the Respondents. The dismissal itself was accordingly part of the failure to make such reasonable adjustments."

He also sought permission to add a sentence to the pleading in box 5 expressly asserting that "the dismissal and the procedure followed in relation to same were unreasonable".

1. Ms Wilson made no objection to the proposed amendment in box 5, which only spells out what was plainly implicit, and I grant permission accordingly in the exercise of my powers under section 35 of the Employment Tribunals Act 1996. The real issue is of course the proposed claim under box 6. As to that, Ms Wilson opposed permission being granted partly on (essentially) the same grounds as she had advanced against Ms Campbell's draft and had maintained before me, but partly also on the basis that Mr MacDonald's draft raised substantial new points not raised in the earlier version nor adumbrated in the Respondent's Answer. I prefer to deal first with the former aspect of her objection.

1. I should start by setting out the relevant provisions of the 1995 Act. Section 4A (1) provides as follows:

"Where -

(a) a provision, criterion or practice applied by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect."

That duty is generally referred to as the duty to make "reasonable adjustments", though that actual phrase does not appear in the text of the section. The Act provides no sanction for breach of the duty as such, but enforcement is provided for by the combination of sections 3A and 4. Section 3A (2) provides that an employer discriminates against a disabled person if he fails to comply with the duty to make reasonable adjustments; and section 4 renders discrimination in the employment field unlawful. The relevant part of section 4 would in the present case be sub-section (2) (b), which provides that:

"It is unlawful for an employer discriminate against a disabled person whom he employs … by dismissing him, or subjecting him to any other detriment."

An unreasonable failure to re-balance an employee's duties and allow those for which his disability rendered him incapable to be done by others would plainly be a detriment to him insofar as it rendered him liable to be dismissed.

1. Before the Employment Judge Ms Wilson resisted the grant of permission to amend on three bases:

(a) that the Claimant had never lodged any grievance with the Appellant complaining of disability discrimination, and accordingly that the Tribunal had no jurisdiction to entertain such a claim by virtue of section 32 (2) of the Employment Act 2002;

(b) that "there was no obvious causative link between the amendment and the facts as argued in the originating application" (see Housing Corporation v Bryant; and

(c) that the claim being sought to be raised by way of amendment would be out of time if advanced in fresh proceedings.

1. On this appeal the Appellant relies only on the first of those grounds. I should set out the terms of section 32 (2), which reads as follows:

"An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if –

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with."

Paras. 6 and 9 of Schedule 2 as there referred to are the operative paragraphs of, respectively, the standard and modified forms of the statutory grievance procedures. It is common ground that a claim of disability discrimination is a complaint under a jurisdiction to which section 32 applies.

1. It is not entirely clear whether Ms Campbell contended before the Judge that the Claimant had lodged a grievance complaining of failure to make any reasonable adjustments in accordance with the 1995 Act. But the Judge proceeded on the basis that he had not done so, and the Respondent's Answer does not seek to re-open that issue. Rather, the Claimant's answer to the section 32 point was that the case fell within the terms of reg. 6 (5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which reads:

"Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee."

If by virtue of that provision the statutory grievance procedure does not apply, then section 32 (2) is not engaged.

1. In support of his case on this point the Claimant relied principally on the decision of this Tribunal – Elias P sitting alone – in Lawrence v HM Prison Service [2007] IRLR 468. The essential facts and the issue in that case are succinctly stated at paras. 2-4 of the judgment (p. 468) as follows:

"2. The appellant worked as an officer support grade at HM's Prison in Norwich. He suffered from eczema which caused intermittent absences from work. He was dismissed because of these absences (the dismissal taking the form of the termination without renewal of a fixed-term contract).

3. He submitted an ET1 claiming that his dismissal was wrongful and that it was unfair, either on general principles or because it involved discrimination contrary to the Disability Discrimination Act …

4. It is common ground that he raised no grievance prior to lodging this claim and that if he was under an obligation to lodge a grievance, the tribunal was not entitled to hear his disability discrimination claim until he had done so: see s. 32 (2) read with s. 32 (6) of the Employment Act 2002. The issue in this case is whether he ought to have done so. That, it is agreed, turns on the proper construction of reg. 6 (5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004."

The employment tribunal held that it had no jurisdiction to entertain any claim. It held that reg. 6 (5) applied only to cases where dismissal was a necessary part of the wrong complained of (i.e., in practice, claims of unfair dismissal), and not to claims under other jurisdictions, notwithstanding that dismissal might ("by happenstance") be the act complained of in a particular case. Elias P rejected that submission and allowed the claimant's appeal. He held that reg. 6 (5) was not concerned with the legal nature of the employee's cause of action. All that mattered was whether what he was complaining of was that he had been dismissed or that his dismissal was contemplated. He said, at para. 26 (p. 470):

"In my judgment, reg. 6 (5) on its natural construction simply provides that the grievance procedure will not apply where the complaint is about one particular kind of action, namely dismissal or a proposed dismissal."

Applying that approach to the facts of the case before him, he said, at para. 30 (p. 471):

"… The grievance in this case was that the employer had dismissed the employee."

1. The Judge accepted the Claimant's submission. At para. 16 of the Reasons he said, echoing Elias P in Lawrence:

"The Claimant' grievance is that he was dismissed: that is abundantly clear."

1. Ms Wilson, in her clear and well-thought-out submissions before me, contended that the Judge was wrong to accept the Claimant's argument. The complaint raised by the amendment was not a complaint about the Claimant's dismissal, or contemplated dismissal. The act (or omission) complained of was a failure to make reasonable adjustments to accommodate his alleged disability. That failure might have resulted in his dismissal; but that is the not the same thing. A claim of discrimination by failing to make reasonable adjustments was, necessarily, a claim under section 3A (2), and it was the failures in question and not any consequential dismissal which constituted the "act(s) complained of". The Claimant could in principle have complained of the dismissal itself as a discriminatory act, relying on section 3A (1) or section 3A (5) (so-called "disability-related" or "direct" dismissal); and if he had done so the present case would, she accepted, have been indistinguishable from Lawrence (and other cases in which it had been applied, such as ADM Milling Ltd v Hodgson (UKEAT/0051/07) and Otaiku v Rotherham Primary Care NHS Trust (UKEAT/0253/07)). But he had not done so – no doubt because of the difficulties caused by the decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700 - and accordingly the reasoning in Lawrence had no application.

1. I am inclined to think that Ms Wilson's formal analysis is correct. The primary legal wrongs complained of are indeed the failures to make the adjustments which would have allowed the Claimant to remain in employment, and it seems to me more natural to treat the dismissal as the consequence of those wrongs rather than as a failure in its own right – though the point is not unarguable. But even if Ms Wilson's analysis is correct it does not follow that reg. 6 (5) does not apply. The essential concept for the purpose of the 2002 Act regime is the "grievance". That is a compendious term, which is capable of embracing not only the act or omission complained of but its consequences. Thus, in the present case, if the Claimant had immediately following his dismissal been asked what his grievance was, he could equally well have answered "my grievance is that I was dismissed, because my employers did not make the adjustments that would have enabled them to keep me on" or "my grievance is that my employers did not make adjustments which would have enabled to me to stay, and so I was dismissed". Whichever way he put it, however, the substance of the grievance would have been, and was, that he had been dismissed: as the Judge rightly observed, that is abundantly clear. That being so, reg. 6 (5) applies, and it makes no difference that when the grievance comes to be advanced as a claim in the Tribunal the dismissal falls to be pleaded as the result of a wrongful act and not as the act itself. I should make clear that this does not involve any departure from the now well-established principle that for the purpose of section 32 the grievance and the complaint must "correlate". But what must correlate is the substantial subject-matter: a "grievance" does not require formal analysis into cause of action and loss, and it is unnecessary and inappropriate to seek to analyse it in such terms.

1. It follows that the Judge's reasoning was correct. That reasoning, however, applies only to the extent that the Claimant is truly claiming in relation to his dismissal. If he were seeking compensation for the alleged breaches of the duty to make reasonable adjustments over and above their contribution to his dismissal – that is, by claiming that they caused distress or financial loss in their own right, irrespective of the subsequent dismissal – section 32 would indeed apply. I do not read Mr MacDonald's draft as advancing any such case; but, for the avoidance of doubt, to the extent that it does so the Tribunal has no jurisdiction to determine any such claim.

1. I return to Ms Wilson's objections set out in the written submissions put in following the hearing, namely that Mr MacDonald's draft pleading goes beyond the amendment originally formulated by Jeffrey Aitken in their letter and by Ms Campbell before the Judge: see para. 7 above. She makes four points, which I will consider in turn.

1. First, she points out that, whereas Ms Campbell's formulation identified only a single failure – "to respon[d] to my request to engage drivers" – Mr MacDonald's draft identifies a second – "to engage me on other duties". As a matter of drafting, that must be correct. But in my judgment Mr MacDonald is doing no more than spell out what is implicit in the earlier version, namely that the Claimant claimed to have been able to do other useful work for the Appellant which would fill the gap that would be left as a result of his unfitness for driving duties. That is already pleaded in the ET1 in the context of his unfair dismissal claim (see point 5 as quoted at para. 2 above); and I see no objection to it being specifically raised under the label of reasonable adjustment.

1. Secondly, she points out that Mr MacDonald's references to the dismissal process/procedure, as distinct from the dismissal itself, go beyond the initial draft. But this is simply Mr MacDonald being cautious – probably unnecessarily so. The point is made in Lawrence that the reg. 6 (5) exception applies not only to grievances about the dismissal itself but also to grievances about the dismissal process; and Mr MacDonald no doubt wanted to take advantage of that point. The Claimant is saying "I was dismissed because the Appellant made no, or no sufficient, attempt to accommodate my disability". That looks to me like a complaint about the dismissal tout court; but if it is characterised as a complaint about the process leading to the dismissal, that base is now expressly covered. I can see no reasonable basis for objecting to the amendment.

1. The third and fourth points are essentially the same. Ms Wilson says that the pleading that the dismissal "amounts to a culmination of an ongoing failure on the part of the Respondents" and that "the dismissal was … part of the failure" is also new. Mr MacDonald by this averment is asserting a link between the failure to make adjustments and the dismissal which was not expressly asserted in the initial draft. The correctness of the way which the link is described may be debatable: as noted at para. 15 above, I am inclined to think that the correct position is that the dismissal is the consequence of prior failures rather than the final link in a chain of failures. I fancy that the fault, if it is one, may be partly mine, since I believe I may have used this or similar language in debating the point at the hearing. But ultimately it does not matter. Although accurate pleading is always desirable, it is unnecessary to insist on subtleties where the broad nature of the case is clear and no-one is prejudiced. The pleading can properly be read as embracing the proposition that, even if the dismissal was not itself a breach of the duty under section 4A, it was the direct consequence of such a breach: the word "culmination" is not inapt for that purpose. Either way, Ms Wilson is right to say that the point was not spelt out in Ms Campbell's formulation: she made no reference to the dismissal at all. But no-one was under any illusions as to what was meant. Jeffrey Aitken had in their initial letter said that the proposed amendment arose from the facts pleaded in the ET1, and the Judge – and, I have no doubt, Ms Wilson – understood that the purpose of the amendment was to claim compensation for the dismissal under the 1995 Act. In those circumstances, I can see no objection to an amendment which makes explicit what was previously understood though not clearly stated.

1. For those reasons I dismiss the appeal. The Claimant has permission to amend in the terms of the draft submitted by Mr MacDonald.