The Claimant was dismissed on capability grounds. She brought a claim for compensation only for disability discrimination and unfair dismissal before the Employment Tribunal. The Employment Tribunal upheld her claim of direct discrimination under section 15 of the Equality Act 2010 and of unfair dismissal under section 98(4) of the Employment Rights Act 1996. The Tribunal concluded that the Respondent did too little too late by way of reasonable adjustment, then treated her unfavourably by subjecting her to performance reviews before they had made the adjustments and finally dismissed her before they had been fully implemented. The Respondent appealed.

The EAT dismissed the appeal. The Employment Tribunal was entitled to find that performance review and dismissal of a dyspraxic employee were discriminatory and unfair because they had not made reasonable adjustments which had a chance of allowing her to achieve acceptable performance in her work.

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Appeal No. UKEAT/0341/15/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 29 April 2016

Before

THE HONOURABLE MR JUSTICE MITTING

(SITTING ALONE)

SOUTH STAFFORDSHIRE & SHROPSHIRE HEALTHCARE NHS FOUNDATION TRUST (APPELLANT)

**

**

BILLINGSLEY (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR EDWARD WILLIAMS (of Counsel)
Capsticks Solicitors LLP
35 Newhall Street
Birmingham
B3 3PU

For the Respondent
MR BRUCE FREW (of Counsel)
Instructed by:
Morris Legal (Solicitors) Ltd
Central Boulavard
Blythe Valley Business Park
Solihull
B90 8AG

DISABILITY DISCRIMINATION - Direct disability discrimination

UNFAIR DISMISSAL

Whether the Employment Tribunal was entitled to find that performance review and dismissal of a dyspraxic employee were discriminatory and unfair because they had not made reasonable adjustments which had a chance of allowing her to achieve acceptable performance in her work. It was.

1. From 1 December 1999 until her dismissal on notice, taking effect on 10 September 2014, the Claimant was employed by the Respondents and their statutory predecessors as a Data Input Clerk at their offices in Lichfield. Her main task was to transfer manual records completed by general practitioners, health visitors and nurses about various checks on, and medical events such as immunisation concerning children from birth onwards onto an accessible computer record. Accuracy was essential because the computer record generated the appropriate times for immunisation and developmental checks. Unfortunately, the Claimant suffers from dyspraxia, an acknowledged disability, first diagnosed when she was nine. It impaired her ability to absorb, retain and process information. As a Data Input Clerk it made her slower and more error prone than her non-disabled colleagues.

1. A report was commissioned by the Respondent in 2009 from Ashdown Forest Consulting Limited (Ashdown) into the Claimant's limitations and what might be done to address them. They made a number of recommendations of which the most significant were training sessions provided by a specialist dyspraxia tutor with an initial program of 50 hours and the provision of technical aids. As the Employment Tribunal found the technical aids were not provided within the time recommended in the report and no more than 20 hours of specialist training was provided ever.

1. In 2010 the computer system used by the Respondents to record children's data was replaced by a new system called Careplus. For the first time it permitted the individual performance of the Claimant and her colleagues to be monitored. From 10 October 2011 the Claimant's error rate was monitored intermittently. In the four weeks to 4 November 2011, during which period she worked for three weeks, her error rate was 19 per week. By then none of the main recommendations of the Ashdown report had been implemented.

1. At informal performance meetings in October 2011 the Claimant asked for the recommended specialist training to begin. The Respondent said it was not possible because there was no one with the required expertise within their organisation. An Access to Work assessment was undertaken on 12 October 2011 and a report produced. It confirmed the Ashdown recommendation for specialist tuition, albeit for 10 half-day sessions, in other words 40 hours. It made other recommendations which the Employment Tribunal eventually dismissed as unreasonable. Again, the Respondent said that it did not have specialist trainers within its organisation and that training by the Claimant's supervisor would suffice.

1. By 10 November 2011 the Claimant's error rate had improved to 12 or 15 per week. A target rate of nought to two errors per week was set. Between 14 November and 2 December 2011 the Claimant's error rate had improved to about five per week. On 15 January 2012 the Claimant wrote to the Respondents again asking for specialist tuition. An Occupational Health report of 16 January 2012 made no reference to it. On 22 March 2012 at a fourth informal review meeting the Claimant was told that the Respondents would now fund the steps recommended by the Access to Work report of the previous year. Once those steps had been taken the Claimant's performance would be monitored for three months to see if she could achieve the targeted reduction to nought to two errors per week.

1. The recommended technical aids were then provided to her and by September 2012 she had received 20 hours specialist tuition. The Claimant, who was acknowledged to be willing to do all in her power to improve her performance, found both to be very helpful. Her performance improved markedly. In the period from 19 September 2012 to 18 December 2012 she made 33 errors in all. She only failed to achieve the nought to two target in two out of the 11 weeks before the departure of her supervisor, Ms Gothard; an average rate of 1.6 errors per week, within the target range. When Ms Gothard left on maternity leave her error rate rose markedly, she claimed because of the change of supervisor entailed by Ms Gothard's departure.

1. The Respondents then moved to a formal review procedure. Her performance was monitored for two months. From 29 January 2013 she made 30 errors in total, in other words just over three a week. She was told that there was no room for any errors at all. She continued to make them. In a four-week period prior to her second formal review meeting on 29 August 2013 her error rate was 37, in other words just over nine a week. It was acknowledged that she was trying her best but her performance was not acceptable. A third meeting was held on 24 October 2013 at which dismissal for incapacity was one of the options open to the Operations Manager, Dan Crick, who conducted the meeting. On 26 November 2013 he told the Claimant that he had decided not to terminate her employment but to institute a further period of monitoring during which the reasons for her errors would be analysed and an accurate comparison would be made of her performance with that of another Data Input Clerk in her department.

1. The monitoring took place over four months from 6 January 2014. That of the Claimant's colleague revealed an error rate of one out of 740 pages of manual records inputted, a 99.86% accuracy rate or, put the other way round, a 0.14 error rate. The Claimant's results were 45 errors in a 4-month period or 3.75 a week, an accuracy in percentage terms of 98.63 or, put the other way round, an error rate of 1.37. The types of error made varied significantly. She was making errors at a rate ten times that of her non-disabled comparator.

1. After a final meeting conducted by Mr Crick on 18 June 2014 he decided that the Claimant should be dismissed on capability grounds on 12 weeks' notice. She was not required to serve the notice. She appealed, and on 2 October 2014 she was notified by Adam Cooper, an Associate Director who conducted the appeal, that it had been dismissed. She brought a claim for compensation only for disability discrimination and unfair dismissal before the Employment Tribunal. After a four-day hearing before a panel chaired by Employment Judge Harding, the Employment Tribunal upheld her claim of direct discrimination under section 15 of the Equality Act 2010 and of unfair dismissal under section 98(4) of the Employment Rights Act 1996.

1. It dismissed her claim that the Respondents had failed to make reasonable adjustments under section 20 of the 2010 Act partly because some of the claimed adjustments were not reasonable for the Respondents to make and partly because the complaints were out of time. The Claimant does not appeal against those findings. The Respondents appeal against the findings against them.

1. It is not necessary in this Judgment to set out those adjustments which the Employment Tribunal were satisfied were not reasonable to make. Only those in respect of which her claim that they were reasonable to make that was upheld need be considered. The Employment Tribunal held that the Respondents had failed to make two reasonable adjustments: first, providing technical aids in good time, and in any event well before the monitoring of the Claimant's performance began; and secondly, failed to make the reasonable adjustment of providing all but 20 hours of the specialist tuition recommend in the Ashdown and Access to Work reports. The latter failure was the most significant as the Tribunal explained in paragraphs 24 and 25 of its dissemination:

"24. … The situation was, therefore, that a specialist had made a recommendation of a step that could be taken which would assist the claimant, and the respondent had not implemented it. We did not consider moreover that an inference that the extra 30 hours tuition had no real prospect of helping could be drawn when the factual matrix of this case was that the specialist tuition that the claimant did receive was very helpful to her and indeed, in conjunction with the Text Help software, led to an improvement in her performance. Accordingly we conclude that the respondent has not proved that, judged objectively, the additional 30 hours tuition was not a reasonable adjustment.

25. For the avoidance of doubt on the evidence before us we consider that we can conclude that there was a real prospect that the extra 30 hours tuition would have assisted the claimant in improving her accuracy rate, and thereby would have ameliorated the substantial disadvantage. … we find that there was a real prospect that the additional 30 hours would have improved the claimant's accuracy rate further and accordingly provision of the extra 30 hours was a reasonable adjustment."

That is a reference to the 50 hours recommended in the Ashdown report, not the 40 hours recommended in the Access to Work report.

1. It summarised its conclusions in paragraph 43:

"43. … The claimant had therefore almost completely exhausted the informal stages of the process prior to these reasonable adjustments being made and the delay in making these adjustments was, we have found, a failure to make reasonable adjustments … This complaint is out of time for the purposes of the reasonable adjustments claim, but nevertheless the facts that underpin this complaint are in our view properly to be weighed into the balance for the purposes of the section 15 claim. Moreover one reasonable adjustment, the further 30 hours specialist tuition, remained outstanding for the entirety of the performance management process. It is an adjustment that would likely have improved the claimant's accuracy rate … and there is a prospect that it could have avoided the need for performance management."

1. As to discriminatory and unfair dismissal it set out its conclusion in paragraph 46:

"46. … She was, it was accepted, someone who was trying her absolute hardest to achieve the standards that the respondent required of her and during the process she had significantly improved her performance from an average of around 20 errors a week. In such circumstances, it seems to us, the respondent's failure to make reasonable adjustments as set out in paragraph 43 above becomes particularly important. In terms of those adjustments which were substantially delayed but were eventually made, they were adjustments which did assist the claimant to improve her performance, by which point of course a significant part of the performance process had already taken place. The one outstanding reasonable adjustment would likely on our findings have assisted the claimant to improve her performance and thus could have led to her avoiding the dismissal. Put another way it was not reasonably necessary to dismiss the claimant until all reasonable adjustments had been implemented, which may have enabled her to avoid dismissal."

The parties agreed that if that finding were to be made then it would automatically follow that the dismissal should be held to be unfair under section 98(4).

1. In summary what the Tribunal concluded was that the Respondent did too little too late by way of reasonable adjustment, then treated her unfavourably by subjecting her to performance reviews before they had made the adjustments and finally dismissed her before they had been fully implemented. Mr Williams, who appears for the Respondents on this appeal, makes the basic submission that the Tribunal adopted the wrong approach when it asked itself, as it clearly did in the passages which I have cited, whether there was a chance or a real chance, or a realistic prospect that if the reasonable adjustments found had been put in place the Claimant would have avoided the two aspects of unfavourably treatment, the performance review and dismissal. The foundation of his argument is the observations of Slade J in [Lancaster v TBWA Manchester ]()UKEAT/0460/10, 14 June 2011, cited with approval by Lewison LJ in Paulley v FirstGroup plc [2015] 1 WLR 3384 at paragraph 44. Her observations were made about the statutory predecessor to section 15 of the 2010 Act but it seems to me, as it did to Lewison LJ, to encapsulate an error in approach to the current legislation:

"46. … in our judgment an adjustment which gives a claimant 'a chance' to achieve a desired objective does not necessarily make the adjustment reasonable. The material question for an ET in considering its effect, which is one of the factors to which regard is to be paid in assessing reasonableness, is the extent to which making the adjustment would prevent the PCP having the effect of placing the claimant at a substantial disadvantage. That enquiry is fact sensitive."

1. Lewison LJ added his own observations at paragraph 45:

"45. This is not a threshold test. The prospects of success in achieving the desired objective are to be weighed in the balance against the cost and difficulty of making the adjustment."

1. More recently in [Griffiths v Secretary of State for Work and Pen]()sions [2016] IRLR 216 Elias LJ giving the judgment of the Court of Appeal made the following observations at paragraph 29:

"29. Paragraphs 6.23-6.29 of the Code give guidance as to what is meant by 'reasonable steps' and para. 6.28 identifies some of the factors which might be taken into account when deciding whether a step is reasonable. They include the size of the employer; the practicability of the proposed step; the cost of making the adjustment; the extent of the employer's resources; and whether the steps would be effective in preventing the substantive disadvantage. So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness: see the observations of Lewison LJ in Paulley v FirstGroup plc [2014] EWCA Civ 1573, [2015] 1 WLR 3384, paragraphs 44-45."

1. Thus, the current state of the law, which seems to me to accord with the statutory language, is that it is not necessary for an employee to show that the reasonable adjustment which she proposes would be effective to avoid the disadvantage to which she was subjected. It is sufficient to raise the issue for there to be a chance that it would avoid that disadvantage or unfavourable treatment. If she does so it does not necessarily follow that the adjustment which she proposes is to be treated as reasonable under section 15(1) of the 2010 Act.

1. It is in the end a question of judgment and evaluation for the Tribunal, taking in to account a range of factors, including but not limited to the chance. A simple example may suffice to illustrate the point. If a measure proposed by an employee as a reasonable adjustment stands a very small chance of avoiding the unfavourable treatment arising out of her disability to which she would otherwise be subjected, but it was beyond the financial capacity of her employers to provide it so a Tribunal would be entitled to conclude that it was not a reasonable adjustment. Indeed, on those facts it would be difficult to justify a conclusion that it was a reasonable adjustment. In the case of a large organisation by contrast, where a proposed adjustment would readily be implemented without imposing an unreasonable administrative or financial burden on the employer then the obligation to take it may arise notwithstanding that the chance of avoiding unfavourable treatment was very far from a certainty.

1. In its self directions of law, which I have not thought it necessary to set out because it is accepted that they are accurate, the Tribunal adopted that approach. When its conclusions are read in the round, rather than subjected to minute textual analysis, they applied that approach faithfully and reached a conclusion that they were entitled to reach. I accept that the use of the word "ameliorated" in the passage from paragraph 25 of the determination which I have cited was an unfortunate choice of word, but viewed in the context of their other findings all that they can be taken to have meant is that there was, in their opinion, a chance that had the reasonable adjustments been made, which they found should have been made timeously or at all, that the Claimant would have avoided the unfavourable treatment of performance review and dismissal to which she was eventually subjected.

1. That, in my judgment, is sufficient to dispose of this appeal but I refer briefly to a further point made by Mr Williams when he draws attention to the statement in the Claimant's own witness statement that it was unrealistic for the Respondents to expect her to achieve an accuracy rate comparable with that of her non-disabled colleagues. That reflected her case before the Tribunal, which was indeed that it was unreasonable to expect her to achieve that rate, but that is not the basis upon which the Tribunal reached the answer which it did. It, in effect, rejected her case that it was a reasonable adjustment to make to set a lower threshold for her than her non-disabled colleagues. Its judgment was based, simply, on the failure to give her a fair opportunity to achieve that rate or something so close to it as to be acceptable.

1. Accordingly, the fact that the Claimant said that in her witness statement is really neither here nor there as a factor upon which to base a criticism of the Employment Tribunal. It may well be relevant when the Remedies Hearing occurs because if, indeed, it is the case that she could not have achieved an accuracy rate comparable to that of her colleagues and acceptable to the Respondents then it may be that compensation will be limited on traditional Polkey grounds, but that is not a matter which goes to undermine the reasoning of the Tribunal on the question of liability. For the reasons which I have given this Tribunal did not go materially wrong in its assessment of the basic issues in the case and this appeal must, therefore, be dismissed.