Appeal No. UKEAT/0289/09/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2 December 2009

Judgment handed down on 19 February 2010

Before

HIS HONOUR JUDGE BIRTLES

MR B BEYNON

MR S YEBOAH

THE SECRETARY OF STATE FOR WORK AND PENSIONS (JOB CENTRE PLUS) AND OTHERS (APPELLANTS)

MS J WILSON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellants
MR DESHPAL PANESAR (of Counsel)

Instructed by:
Messrs Field Fisher Waterhouse LLP
35 Vine Street
London
EC3N 2AA

For the Respondent
MS ANNA MACEY (Representative)

Free Representation Unit
6th Floor 289-293 High Holborn
London
WC1 7HZ

DISABILITY DISCRIMINATION: Reasonable adjustments

The Employment Tribunal erred in law in failing to properly apply s. 18B of the Disability Discrimination Act 1995 to the evidence and to make the necessary findings of fact about reasonable adjustments: Smiths Detection – Watford Ltd v Berriman (UKEAT/0712/04/CK) and Romec Ltd v Rudham (UKEAT/0069/DA) applies.

1. This is an appeal from the judgment of an Employment Tribunal sitting in Newcastle in September 2008, February and April 2009. The unanimous judgment of the Tribunal was that:

(i) In seeking to redeploy the Claimant, a disabled person with an underlying psychological condition that interfered with her ability to leave her home on her own and caused symptoms of panic and anxiety should she do so unaccompanied, to the extent that she had difficulty, at times, crossing the road from her home to her existing place of work, the Respondent was applying a provision, criterion or practice which placed her at a substantial disadvantage in comparison with persons who were not disabled;

(ii) The employer failed to take such steps as were reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice, or feature, having that effect;

(iii) Accordingly the failure to make reasonable adjustments was such that the Respondent had discriminated against the Claimant on grounds of her disability.

1. At the hearing of the appeal the Appellant was represented by Mr Deshpal Panesar of counsel and the Respondent was represented by Ms Anna Macey of Counsel instructed by the Free Representation Unit. As always the Employment Appeal Tribunal is enormously grateful for the assistance which is provided to it by the Free Representation Unit. Without that assistance many appellants before us would be unrepresented.

1. The Employment Tribunal made very substantial findings of fact which are set out in paragraphs 16.1-16.224 of its judgment.

1. The Claimant was, at the times material to this claim, employed by the Appellant as a member of the administrative team within the Newcastle Employment Action Team (referred to in the documents by its acronym NEAT).

1. NEAT was (as described at paragraph 16.2 of the Employment Tribunal's Reasons) a pilot scheme to address the problem of finding work for traditionally harder to reach groups of individuals. The scheme had a finite life span and was originally due to close in March 2006. Its operation was however extended in March 2006 to 30 September 2006.

1. The Respondent suffers from a psychological condition that manifested itself in agoraphobia and panic and anxiety attacks in new situations. The Claimant described her condition in her claim form as

"I have panic attacks and am unable to enter into new situations without the presence of someone I trust."

The Appellant accepted that the Respondent's condition amounted to a disability for the purposes of the Disability Discrimination Act 1995 as amended.

1. As a result of the Respondent's condition she had been given a back office administrative role for NEAT which involved minimal contact with the public. Furthermore, the NEAT offices were approximately 100 yards from the Respondent's home, which journey she was able to undertake albeit sometimes with assistance.

1. The NEAT scheme was due to close in March 2006, as were all employment action teams nationally. On the closure of the teams all the staff were to be redeployed and would no longer work from the offices close to the Respondent's home. In fact the Appellant relinquished the occupation of the NEAT office close to the Respondent's home.

1. Prior to the closure of the NEAT office the Respondent requested to work from home when the closure of the NEAT office took place.

1. Working from home was the sole manner in which the Respondent requested to work on closure of the NEAT office, notwithstanding the fact that she had previously worked elsewhere. The Appellant's case was that working from home had been fully explored and there were no vacancies in which it was reasonably possible for the Respondent to work from home. In addition to considering whether it was feasible for the Respondent to work from home the Appellant looked at a number of alternative ways in which the Respondent's work could be facilitated.

1. Although it is not referred to in the Tribunal's Reasons Mr Panesar (who appeared for the Appellant at the Employment Tribunal) told us, and we accept, that the Respondent agreed in evidence that she would travel abroad on holiday annually, would travel by taxi whilst abroad, albeit accompanied by someone she knew and would go to a public house with people she knew. At no time did the Respondent agree to trial or undertake work on any basis other than work from her home. From August 2005 onwards the sole basis upon which she requested or indicated she was willing to work following the closure of the NEAT office was to work from home.

1. The Respondent's request to work from home was first made in August 2005. There were long delays in determining that request for a series of reasons that are detailed at length in the Employment Tribunal's judgment at paragraphs 10-20. However, from August 2005 until 30 September 2006 the Respondent's employment at the NEAT office continued as NEAT's existence had been extended by a further six months until 30 September 2006. The Respondent's request to work from home was, following the investigation by the Appellant, refused on 16 November 2006. She provided medical certificates stating that:

"unable to travel to work - could work at home."

1. On 6 November 2006 the Respondent was put on fully paid special leave pending investigation of ways of facilitating her return to work. That special leave continued for six months until 28 May 2007. On 16 January 2009 she was dismissed for lack of capability due to her disability diagnosed sickness absence. There was a separate claim for unfair dismissal in relation to that matter. We are not concerned with it in this appeal.

1. At the hearing before the Employment Tribunal it was the Appellant's case that, in addition to exploring working from home, the Appellant looked at a number of other adjustments which were put to the Respondent and refused. They were as follows:

(i) The Respondent's line manager from NEAT accompanying her to her new office, to introduce her to the new staff that she would be working with and reduce the anxiety of a new location;

(ii) Paying for a taxi to take the Respondent to and from work so that she would not have to travel by public transport. The Respondent indicated that she did not want to travel by taxi as her house had once been burgled when she travelled by taxi and she believed the taxi driver or firm was responsible for the burglary. No person was ever charged with the burglary;

(iii) Transferring the Respondent to work at an office in Covoalt House and to change her working pattern to coincide with that of her partner who also worked for the Appellant;

(iv) Having a work colleague accompany the Respondent to and from work;

(v) Engaging and paying for a support worker to pick the Respondent up in the morning in a taxi and to take her to and from work;

(vi) A further referral to the Appellant's Occupational Health Department to assess the current state of the Respondent's condition.

1. The Claimant refused all of the above proposals and stated that home working was the only manner in which she would be able to work. She refused to have a further occupational health assessment and from November 2007 declined over 17 proposed dates to meet to discuss her situation. Unfortunately, there was a dispute about the accuracy of notes taken at meetings and in due course the Respondent largely refused to communicate with the Appellant save in writing.

1. The Employment Tribunal said this:

"23. Whatever else can be said about this case, it is categorised by delay, and obfuscation, the passing of the buck between different managers at various levels involving either the inability or the unwillingness of management to get hold of the problem and address it properly and provide a timeous response to the claimant's request for reasonable adjustments.

24. The decision at the end of the day that the adjustment which the claimant sought was one which could not be provided at her grade was a decision that could have been made at the very beginning. Had it been so made, then it is possible, and we can do no more that postulate that possibility, that the claimant would have been more receptive towards discussing the matter with the respondents to see if some other adjustment could have satisfied her need. As it is, by the time the respondent was talking about arrangements for transport to work, the damage had already been done by the failure to deal promptly and properly with the claimant's request. The steps taken ultimately to make enquiries around the wider Department for Work and Pensions were, in the Tribunal's view, ones more aimed at defending the claimant's likely proceedings than they were at finding a just solution.

25. There appears to have been no consideration as to whether the claimant, who was clearly a valuable employee, who was giving good service, could be accommodated were it to be accepted that she could properly work at a higher level. Nor, in all the circumstances of the case, is the Tribunal convinced by the arguments put forward for the respondent that home working was not a possibility for someone at her grade. The Tribunal considers that if the answer had been as simple as that it would have been made in the first instance, not many many months after the request was made.

26. Accordingly the Tribunal is satisfied that the provisions of section 4A of the DDA do impose a duty on the employer in the circumstances of this particular case and that again given the long and tortuously slow procedure followed by the respondent, the employer had not taken such steps as were reasonable, in all the circumstances of the case, for it to have to take in order to prevent the arrangements or feature having the effect of placing the disabled person concerned at a substantial disadvantage in comparison with persons who were not disabled.

27. This respondent was well aware of the nature of the claimant's disability and was aware from the very beginning of this proposal to close the office where she worked. The tardy and inadequate way in which it dealt with her request was such that it had not taken such steps as were reasonable, in all the circumstances of the case, and accordingly we find that the respondent has discriminated against the claimant on grounds of her disability."

1. Section 4A of the Disability Discrimination Act 1995 provides as follows:

"4A Employers: duty to make adjustments.

(1) 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."

The remainder of section 4A is not relevant.

1. Section 18B provides as follows:

"18B Reasonable Adjustments: Supplementary

(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to-

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt of any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respectto taking the step;

(f) the nature of his activities and the size of his undertaking;

(g) where the step would be taken in relation to a private household, the extent to which taking it would -

(i) disrupt that household, or

(ii) disturb any person residing there."

1. In Smiths Detection - Watford Ltd v Berriman (UKEAT/0712/04/CK and UKEAT/0144/05/CK) HHJ Serota QC said this at paragraph 85-86:

"85. In our opinion an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 5(2) of the Act by failing to comply with the Section 6 duty must identify:

(a) the relevant arrangements made by the employer

(b) the relevant physical features of the 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 "arrangements" and "physical features" 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 5(2) without going through that process.

86. Unless the Employment Tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed arrangement is reasonable. It simply is unable to say what adjustments were reasonable:

*

"To prevent the arrangements or feature placing the Claimant at a substantial disadvantage."*

… It is wrong, in our opinion for the Employment Tribunal to have simply based the finding that the adjustments would have been effective as it appears to have done, on the fact that these were what the Claimant wanted."

1. Although Judge Serota did not specifically refer to section 18B(1) of the 1996 Act, it is clear that in paragraph 85(d) he has in mind section 18B(1)(a).

1. If there is no prospect of the adjustment contended for removing the disadvantage "it will not be a reasonable adjustment": Romec Limited v. Rudham UKEAT/0069/07/DA per HHJ Peter Clark at paragraph 39.

1. Finally, there is an extensive discussion about reasonable adjustments in the Disability Rights Commission Code of Practice: Employment and Occupation (2004) at paragraphs 5.18-5.42.

1. The Notice of Appeal appears at EAT bundle pages 32-40. It has been supplemented by Mr Panesar's written and oral submissions. The Respondent's answer appears at EAT bundle pages 41-43. It has been supplemented by Ms Macey's written and oral submissions. There are six grounds of appeal. We take each ground in turn.

1. Mr Panesar submits that although the Employment Tribunal referred to section 18B in its statement of the law: judgment paragraph 20, it did not in fact do so when it came to reach its conclusion. In particular, he submits that in considering whether it was reasonable to make adjustments it failed to have regard to the factors set out at section 18B(1)(a) and (b) namely the extent to which taking the step would prevent the effect to which the duty is imposed and the extent to which it is practicable for it to take that step.

1. Ms Macey submits to the contrary. She submits that there was an express reference to the entirety of section 18 in the judgment at paragraph 20 and in addition the Tribunal considered the law relating to the practicality of a reasonable adjustment: judgment paragraphs 20-22.

1. We agree with Mr Panesar. First, the Claimant refused to contemplate any option save home working after NEAT closed. Thus any other options were immediately closed off.

1. Second, there were no home working vacancies that existed or could reasonably be created. In that regard:

(i) There was no evidence before the Tribunal that such a role existed;

(ii) The Claimant's former role and the work of NEAT generally, had ceased to exist;

(iii) It was established that there were no roles within the Respondent's wider organisation. Notwithstanding criticisms by the Tribunal of the search for such a role no such role was identified or found to exist. Ms Sheilah Patten's evidence in this regard is set out at paragraph 22 of her statement: EAT bundle page 101. Her evidence (which was unchallenged) was that after her search there were no roles found to be suitable for home working. She says this:

"23. The following business units within the Department were approached by a member of the HR team and asked whether they had sufficient duties to accommodate an employee working from home:

(a) Work Welfare Equality Group (WWEG)

(b) Group Finance

(c) PSD

(d) Information Directorate

(e) The International Pension Service

(f) The Child Support Agency Operation

(g) Pensions Local Service

(h) Child Support Agency Central Directorate

(i) Pension Central Directorates

(j) Seaham Pension Centre and London Pension Centre

(k) Pensions FPD

(l) Employee Services Resourcing

(m) National Pension Centre

(n) The Rent Service

(o) Shared services - Internal HR."

1. Third, there was evidence before the Employment Tribunal (much of which was not disputed) that it was not practicable to create such a role. With regard to the issue of the practicality of creating such a role the Employment Tribunal only dealt with the issue of IT feasibility. The Employment Tribunal do not allude to or make findings with regard to the other reasons given by the Respondent's witnesses as to why such a role was not feasible. Thus Ms Angi Nicholson, the Appellant's Operations Manager, gave evidence in her witness statement at paragraphs 10-13 as to the feasibility of creating a home working role for the Claimant: EAT bundle page 95:

"10. On receiving the request from Sheila and Lesley, I considered the full range of Administrative Officer/Band B job roles within the Job Centre Plus Job Roles Catalogue to determine whether the Department could accommodate Joan's request to carry out her duties from home.

11. The role of Band B and Band C employees at Job Centre Plus involves meeting with the public on a day to day basis. Job seekers attend at the Job Centre Plus Jobcentre with the Jobcentre Plus employees to discuss available job opportunities in their search for employment. The employees then complete the paperwork of that interview and record the details on the Jobcentre Plus internal computer system.

12 In accordance with the conditions of the Jobseekers Allowance benefit, individuals receiving the benefit must attend in person at the Jobcentre on a fortnightly basis or, if a postal claimant, less frequently. Joan could not have conducted these face to face interviews from her home. Furthermore, it is not possible for the interview to be conducted by phone as the Jobseeker would have been in breach of the condition to attend the Jobcentre in person. As such, it was not possible to offer Joan a Band B or C position in the Jobcentre Plus Jobcentre which included meeting with customers. Furthermore, there are no purely 'back of house' roles in Jobcentre Plus for Band B employees. All job roles involve a degree of client contact (and the resulting back of house administration tasks after the interview).

13. I also considered whether it would be possible to arrange a system whereby Joan was sent the paper files on a daily basis in order to attend to the back of house component. However, this would involve sending highly confidential information to Joan by courier each day, and having the information sent back by Joan at the end of the day. From a practical perspective, I assessed the risk that the confidential information could be lost by a courier company was high. The possibility of arranging an employee to drop off the paper files to Joan was also considered. However, I took into account the additional cost to the Department of such an arrangement and the impact on an employee of the Department of incurring these extra daily duties. Furthermore, the work that Joan could do on such files was limited because she would not have first hand knowledge of the interview content and the delay in processing any paperwork that the customer required would provide a poorer level of customer service than if done within or at the end of the face to face interview."

1. From these witness statements the following is clear:

(i) There were no such vacancies either within Jobcentre Plus or the wider departments of the Respondent nor was it practicable to create such a role for the Claimant.

(ii) The work that was available required working with and making decisions about confidential public matters and information, and required supervision, which could not be provided in the Claimant's home.

(iii) Such work required contact with the public which the Claimant was unable to do and could not be done from her home.

(iv) The work (including benefits work), even if it did not involve customer contact, required reference to files containing confidential information about the public. These files have to be stored in the Respondent's premises centrally not only for confidentiality reasons but also for reference by other staff. There was clear evidence from Ms Angi Nicholson on the feasibility of transporting that documentation to and from the Claimant's home.

1. What is surprising is there no reference to this evidence in either the findings of fact or the conclusions of the Tribunal. In our judgment the conclusion of the Employment Tribunal is defective in that:

(i) It failed to have regard to the extent to which it would be practicable for the Respondent to take the steps suggested as amounting to a reasonable adjustment, namely home working, which on the evidence before the Tribunal was not practicable; and

(ii) Did not make a clear finding with regard to the feasibility of home working.

1. Furthermore, the Tribunal erred in finding that the Appellant failed to make a reasonable adjustment. It failed to have regard to NCH Scotland v McHugh (UKEAT/0010/06/MT) and Romec Ltd v Rudham, supra, in that the adjustment proposed (i.e. home working) would not in the light of the matters set out above enable the Claimant to return to work as there was no work available for her to do at home and/or it was not feasible for her to do any work from home.

1. Mr Panesar submits that a critical part of the case required the Tribunal to determine whether or not the Appellant's proposed adjustments were reasonable. In particular the Respondent proposed these measures:

(i) Paying for a support worker to accompany the Claimant to and from work;

(ii) Paying for taxi transportation to and from work;

(iii) The Claimant's line manager to accompany her to her new office and introduce her to colleagues;

(iv) A colleague to accompany the Claimant to and from work.

See paragraph 34 of the witness statement of Ms Lesley Widdowson: EAT bundle pp. 111-112.

1. Ms Macey submits that the Employment Tribunal did refer to section 18 in its judgment and did make the relevant findings of fact. In this case the Tribunal considered that the adjustments put forward by the Appellant were aimed more at answering any potential litigation brought by the Claimant than aimed at providing her with adjustments enabling her to return to work. Furthermore they had been made late in the day.

1. We agree with Mr Panesar. We consider the Employment Tribunal's conclusions in respect of the reasonable adjustments put forward by the Appellant to have been cursory in the extreme. In our judgment the Tribunal did not consider or determine whether the matters as listed above proposed by the Respondent as reasonable adjustments were in fact reasonable adjustments that prevented the effect in relation to which the duty to make reasonable adjustments is imposed: section 18B(a).

1. Mr Panesar submits that the finding of the Tribunal in paragraph 25 of the judgment that there was no consideration by the Appellant as to whether the Claimant could be accommodated to work at a higher level was an error of law as this was not a permissible option for the Employment Tribunal on the evidence or in the alternative it was perverse. Ms Macey does not contest the Tribunal's conclusion in paragraph 25 of its judgment that:

"There appears to have been no consideration as to whether the Claimant, who was clearly a valuable employee, who was giving good service, could be accommodated were it to be accepted that she could properly work at a higher level."

1. We agree with Mr Panesar. The Claimant was a Band B employee. The grading of the Respondent's staff in ascending order is A, B, C, D etc. The Appellant's witnesses gave undisputed evidence that higher grades were considered for the Claimant. That evidence was given by Ms Angie Nicholson: witness statement paragraph 11; EAT bundle page 96. It was also given by Ms Sheila Patten: witness statement paragraph 22; EAT bundle page 101 and finally by Mr David Burn: paragraph 5 of his witness statement; EAT bundle page 114. Sheila Patten further gave evidence that had a suitable role been available the Claimant would have been promoted. The Claimant accepted at the hearing in questioning Mr Burn that higher roles were looked at for her.

1. Furthermore, the undisputed evidence before the Employment Tribunal was that:

(i) Both Band C and D roles were management roles, with Band D employees managing other managers.

(ii) The Claimant had applied for and failed in her application for a permanent Band C role.

(iii) Band B and C roles normally involved dealing with the public.

1. It follows that the Employment Tribunal were simply wrong in its assertion in paragraph 25 of its judgment that there was no consideration of finding a role for the Claimant at a higher level. Insofar as that related to a failure to make reasonable adjustments the Tribunal clearly arrived at a decision which was not a permissible option in the light of the unchallenged evidence before it. If necessary we would say that such a decision was perverse.

1. Mr Panesar submits that in paragraph 24 of its decision the Tribunal held that had the Appellant's proposals been put forward to her earlier in the discussions between the parties the Claimant would have been more receptive towards discussing the matter with them to see if some other adjustment could have satisfied her need. Mr Panesar submits there was no evidence before the Employment Tribunal to that effect. Ms Macey accepts that that there was no such evidence and points out that in paragraph 23 the Tribunal is in fact doing no more than speculating about that possibility.

1. We agree with Ms Macey. A careful reading of paragraph 24 of the Employment Tribunal's judgment (set out above) makes it clear that the Tribunal were simply speculating: they used the words "postulate that possibility ...". In our judgment this was not a factor which amounts to an error of law. It is a comment by the Tribunal (based on earlier comments) about the long and inexcusable delay in the time taken by the Appellant to consider and determine the issues in the case.

1. Mr Panesar submits that a factor to be taken into account in determining whether a proposed adjustment is reasonable is the extent to which the disabled person is willing to co#operate. He refers us to the Disability Rights Commissions Code of Practice: Employment and Occupation (2004). In his bundle of authorities Mr Panesar has referred us to paragraphs 5.23 to 5.42. It is referred to as a factor in paragraph 5.42. When questioned, Mr Panesar could not remember whether or not he had specifically referred the Tribunal to this factor. Ms Macey took us through the history of the meetings between the Claimant and the Appellant. They are set out in detail in the Tribunal's findings of fact. Essentially the Tribunal found that because of the delay in dealing with the problem (which it found to be caused by the Appellant) the Claimant understandably became disillusioned with the Appellant and eventually required communications in respect of the question of reasonable adjustments to be in writing. As there is no clear evidence that this issue was actually flagged up before the Employment Tribunal we can see no error of law in the Tribunal not referring to it in its conclusion.

1. This ground of appeal arises because the Respondents on the claim form (and named on the first page of the judgment) are first, the Secretary of State for Work and Pensions; second, four named officers of the Department for Work and Pensions and third, the Northumbria Senior Management Team. Mr Panesar submits first, that some of the individual Respondents played a very minor part in this case, and, second, the Northumbria Senior Management Team does not have legal personality. He submits it was therefore an error of law for the Employment Tribunal to apparently in its conclusions hold all of the Respondents equally liable. Ms Macey submits that the Employment Tribunal were giving a judgment on liability only which found as a fact that all the Respondents had breached their obligations under the 1996 Act in failing to make a reasonable adjustment for the Claimant. It was not therefore necessary at this stage to apportion responsibility. That would be done at a remedies hearing.

1. Mr Panesar frankly admitted this issue had not been raised before the Tribunal hearing at a prehearing review or indeed at the hearing before the Employment Tribunal. In our judgment it is not open to him to raise it at this stage: Jones v Governing Body of the Burdett Coutts School [1998] IRLR 521. The issue could and should have been sorted out at the hearing.

1. For the reasons we have given we allow the appeal on grounds 1, 2 and 3. All the facts have been found by the Employment Tribunal. It is its conclusions which have proved to be wrong.

1. We see no purpose in remitting this matter to the Employment Tribunal. In our judgment the only conclusion which the Tribunal could have come to was that first, the adjustments offered by the Appellant were reasonable adjustments in the circumstances of this case and second, that it would not have been a reasonable adjustment for the Claimant to work at home. There was simply no evidence that that was a feasible option. For these reasons we substitute our decision for that of the Tribunal and dismiss this claim.