Appeal No.	EAT/113/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 February 2002
          Judgment delivered on 12 April 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR I EZEKIEL
MR P M SMITH

MR V WRIGHT	APPELLANT

(1)	THE GOVERNORS OF BILTON HIGH SCHOOL
(2)	WARWICKSHIRE COUNTY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS S ROBERTSON
(of Counsel)
Instructed By:
Messrs Michael Lee & Co
Solicitors
503 Coventry Road
Small Heath
Birmingham
B10 0LN	
For the Respondents	MR E BEEVER
(of Counsel)
Instructed By:
County Solicitor and Deputy Clerk
Warwickshire County Council
PO Box 9
Shire Hall
Warwick CV34 4RR	

JUDGE PETER CLARK:

1	This appeal raises two questions of general interest:

(1)	How should Employment Tribunals deal with their obligation to find the facts and apply the law to the relevant facts in their reasons where the complaint before them consists of different causes of action?

(2)	What position does the employer’s “knowledge”, actual or imputed, occupy in the scheme of the disability discrimination legislation (DDA 1995)?

Background

2	The appellant, Mr Vendon Wright, who is black, suffers from Retinitis Pigmentosa, Thyrotoxic eye disease, Ocular Hypertension and Glaucoma.  He has only 10 per cent of normal vision.  He wears special glasses which make things appear closer, but people and objects remain largely blurred and dark.  Without those spectacles he can hardly see anything at all; he sees shades of light and dark but struggles to identify colours.  He has been registered blind since 1993 with Warwickshire County Council.  It is common ground that, by reason of his poor eyesight, he is a disabled person with the meaning of section 1 DDA.

3	He commenced employment as a computer technician at Bilton High School, near Rugby, in September 1989.  Since 4 December 1998 he has been on long term sick leave.  On 1 March 1999 he presented an originating application to the Birmingham Employment Tribunal complaining of disability discrimination, racial discrimination, redundancy and constructive dismissal.  In the absence of a dismissal the complaints of redundancy payment entitlement and constructive unfair dismissal were withdrawn by the appellant.  That left three separate and distinct claims:

(1)	direct racial discrimination

(2)	disability discrimination contrary to section 5(1) DDA

(3)	disability discrimination contrary to section 5(2) DDA.

4	Those complaints came before a tribunal sitting at Birmingham over six days.  Following deliberations in private the tribunal promulgated their decision with extended reasons on 1 December 2000.  All claims were dismissed.  This appeal now focuses solely on the tribunal’s decision to dismiss the claim brought under section 5(2) DDA.

Knowledge and the DDA

(1)	In O’Neill v Symm & Co Ltd [1998] ICR 481 the EAT (Kirkwood J presiding) held that the employer could not discriminate against the employee for a reason which relates to her disability within the meaning of section 5(1)(a) of the Act if he did not have knowledge of her disability.  That view was doubted by Lindsay P, giving the judgment of the EAT in the later case of H.J. Heinz Co Ltd v Kenrick [2000] ICR 491, paragraphs 21-27, however at paragraph 27 the President observed:

“That is not to say, though, that such knowledge or its absence may not be highly material to justifiability under section 5(1)(b) or (2)(b) or as to the steps to be considered or taken under section 6:  see also section 6(6)(b).”

In London Borough of Hammersmith & Fulham v Farnsworth [2000] IRLR 691, paragraph 33 (EAT) Charles J declared, in the light of Heinz and the Court of Appeal decision in Clark v Novacold [1999] ICR 951, that the reasoning and conclusion in O’Neill that knowledge of the disability is relevant for the purposes of section 5(1)(a) of the Act is no longer good law.

This tribunal so directed themselves at paragraph 39 of their reasons.  In our judgment they were correct to do so.

(2)	Once “direct” disability discrimination is made out under section 5(1)(a), the employer’s knowledge of the employee’s disability may become relevant at the justification stage under section 5(1)(b), read with section 5(3), (5).  See Heinz.  However, in Farnsworth Charles J held, paragraphs 39-42, that knowledge or lack of it on the part of the employer is not a necessary ingredient of section 5(1)(b) and (3), save to the extent that section 5(3) is affected by section 5(5), which renders the justification defence to a claim under section 5(1)(a) subject to the duty to make reasonable adjustments under section 6.

(3)	Turning then to the duty to make reasonable adjustments under section 6, failure to do so being rendered unlawful by section 5(2)(a), subject to the defence of justification under section 5(2)(b) read with section 5(4), the starting point for present purposes is section 6(6)(b), which provides:

“Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know -
…
(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).”

Section 6(1) provides:

“(1)	Where –
(a)	any arrangements made by or on behalf of an employer, or
(b)	any physical feature of premises occupied by the employer,
place 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 arrangements or feature having that effect.”

(4)	That brings us to the substantive issue of construction which divides the parties in this appeal.  As the tribunal record at paragraph 38(b) of their reasons, the respondent does not rely on the defence under section 6(6) and in the same breath they continue:

“… although it is axiomatic to the respondent’s defence that they were unaware of the full extent of the applicant’s disability.”

Miss Robertson, on behalf of the appellant, submits that having made that concession, the respondent’s knowledge of the extent of the appellant’s disability and its effects becomes irrelevant to the enquiry under section 6 and section 5(2)(b) (justification).  Mr Beever submits that it is a relevant consideration and one which the tribunal were entitled to and did take into account in determining that there was here no failure on the part of the respondent to make reasonable adjustments under section 6.  What is the true position?

(5)	In our judgment, once it is accepted that the employer knows of the employee’s disability and that he is likely to be affected in the way mentioned in section 6(1), then it follows that a section 6(1) duty to make reasonable adjustments arises.  Although not spelled out in the tribunal’s reasons it is common ground before us that the tribunal acknowledged that a section 6(1) duty did arise in this case.  We think that must be correct.

In these circumstances, what place does the state of actual or imputed knowledge of the employer as to the extent of the acknowledged disability have in the enquiry now to be undertaken under section 6?

(6)	In answering that question we begin with a slight detour.  In British Gas Services Ltd v McCaull [2001] IRLR 60, the EAT considered the question as to whether an employer, ignorant of his statutory duty to make reasonable adjustments under section 6, could nevertheless contend that he had made all reasonable adjustments in defending a claim brought under section 5(2) of the Act.  Keene J held that there was no automatic breach of the section 6(1) duty where the employer was unaware of that duty.  The test under section 6 is an objective one, did the employer take such steps as it is reasonable in all the circumstances of the case for him to take in order to prevent the arrangements made by the employer from placing the disabled person at a disadvantage in comparison with those who are not disabled?  The test of reasonableness here does not relate to what the employer considered but to what he did and did not do.

Three weeks later, in the case of Quinn v Schwarzkopf Ltd [2001] IRLR 67, decided by a division sitting in Edinburgh, it would seem without the advantage of having seen the judgment in McCaull, Lord Johnston appeared to take the view that where disability was disputed but found to exist, the employer could not raise the defence of justification to a claim brought under section 5.  He could not justify a discriminatory act, in that case dismissal, under section 5(1)(b) if he had not considered the question of disability during the employment.

However, Lord Johnston revisited this question in Callaghan v Glasgow City Council [2001] IRLR 724, a section 5(1)(a) case, and observed (paragraph 11) that whilst knowledge is not an essential element of proving direct discrimination under section 5(1)(a), Quinn went too far in so far as it was there suggested that justification can never occur if the employer is ignorant of the fact of disability at the relevant time.

We respectfully agree with both the observations of Keene J in McCaull and Lord Johnston in Callaghan.  We reject Mr Beever’s submission that the words “in all the circumstances of the case” in section 6(1) include the state of the employer’s knowledge as to the extent of the employee’s disability and its effects when considering whether or not the duty under section 6(1) has been breached.  Lack of knowledge of the disability and its likely effects precludes any duty arising under section 6(1) by virtue of section 6(6).  However, in the absence of a section 6(6) defence, as is conceded in the present case, once the duty to make reasonable adjustments arises the question is, as Keene J observed in McCaull, an objective one.  This is borne out by the provisions of sections 6(3) and 6(4).  Section 6(3) sets out examples of steps which an employer may have to take to obviate the disadvantage to the disabled person identified in section 6(1); section 6(4) sets out factors to be considered in determining what steps are reasonable by reference to the effect of such a measure on the disadvantage suffered by this disabled person and the financial implications for this employer.

Conversely, just as the employer may seek to justify a discriminatory act under section 5(1)(a) regardless of his ignorance of the fact of his employee’s disability, so we think that an employer, although aware of the fact that the person has a disability and of the likelihood that he will be at a substantial disadvantage in comparison with a person who is not disabled, may nevertheless seek to justify his failure to make what, objectively is a reasonable adjustment by his ignorance of the full extent of the disability and its effects.

(7)	In arriving at that conclusion we have been assisted, albeit obliquely, by certain provisions of the Code of Practice which we are enjoined by section 53 of the Act to take into account where relevant.

Paragraph 4.57 of the Code deals with the application of section 6(6) in practice, by way of examples.  However, those examples are not directed to the reasonableness of steps to be taken once the employer is aware of the disability likely to place the disabled employee at a substantial disadvantage.  The examples of what is and is not a reasonable adjustment do not depend upon the employer’s subjective state of knowledge.  However, in considering the defence of justification under section 5(2)(b) paragraph 4.34 gives, as the first illustration, the employer who does not make an adjustment which it was reasonable for him to make because of ignorance or wrong information about appropriate adjustments or about the availability of help with making an adjustment.  In making out the defence of justification in such a case it would be for the employer to show that he had made a reasonable effort to obtain good information from a reputable source.

That example deals with knowledge of what adjustments are available; however, we see nothing inconsistent with section 6(6) in an employer who is aware of the employee’s disability and the likelihood of him being substantially disadvantaged and who fails, objectively to make a reasonable adjustment, raising the defence to a claim under section 5(1)(a) that he was, despite making reasonable enquiries of the employee, unaware of the full extent of his disability which required such adjustments, such that his failure to make the adjustment was justified under section 5(2)(b) and 5(4) of the Act.

(8)	Such an approach seems to us to be entirely consistent with the scheme of a section 5(1) complaint, as explained in the cases.  Knowledge on the part of the employer is not necessary to establish discrimination under section 5(1)(a); the state of the employer’s knowledge may be highly relevant to the question of justification under sections 5(1)(b) and 5 (3).  See Heinz.

Summary

5	In short, we think the position to be as follows under a section 5(2) complaint:

(1)	Lack of knowledge of the fact that a person is disabled and likely to be disadvantaged in the section 6(1) sense will mean that the employer is not under a section 6(1) duty.  Section 6(6).

(2)	Absent the section 6(6) defence the employer is under a section 6 duty to make reasonable adjustments.  Whether or not he has done so is an objective question, regardless of the employer’s knowledge, actual or imputed, as to the extent of that disability and the precise extent of its effects.

(3)	If the employer is found to have breached his duty to make reasonable adjustments in accordance with section 6 he is prima facie in breach of section 5(2), subject to the defence of justification under section 5(2)(b).

(4)	In determining the question of justification it may be relevant for the employer to show that he made all reasonable enquiries of the disabled person and sought all necessary medical advice and carried out a reasonable assessment of that person’s condition, but he was nevertheless ignorant of the true extent of the disability and its effects, possibly due to lack of co-operation on the part of the employee, such that his failure to make a reasonable adjustment was justified, applying the approach set out by the Court of Appeal in Post Office v Jones [2001] ICR 805, a case strictly concerned with justification under section 5(1)(b) and (3), but applicable equally to justification under section 5(2)(b) and (4).

This tribunal’s approach

6	In our judgment the tribunal’s approach was flawed in two respects:

(1)	It is clear from reading the reasons as a whole that the tribunal considered the state of the respondent’s knowledge as to the extent of the appellant’s disability at the stage when it was considering whether the respondent had failed to discharge its duty to make reasonable adjustments under section 6.  It did not get on to the question of justification under section 5(2)(b).  For the reasons which we have given we have concluded that that was a wrong approach in law.  The tribunal was required, first to consider objectively whether any reasonable adjustments ought to have been made, regardless of the respondent’s state of knowledge.  If so, the next question was whether that breach of their section 6 duty could be justified under section 5(2)(b) and (4).  It was at that stage that it became permissible to consider the respondent’s state of knowledge as to the extent of the appellant’s disability.

(2)	In some cases it may be possible to discern from the tribunal’s findings the answer to that one or two stage enquiry notwithstanding the misdirection in law.  However, the tribunal’s reasons suffer from an elision of both the section 5(1) and 5(2) complaints in their conclusions, as well as the conflation of the two stages, reasonable adjustments and justification under the section 5(2) complaint, together with a lack of necessary findings generally.  It is, we think, essential that having found the primary facts (preferably in a logical sequence, rather than by identifying the evidential conflicts and subsequently making findings on those factual issues as happened in this case) the statutory questions are then posed and answered, by reference to the facts as found, separately in relation to each head of claim.

7	We accept Miss Robertson’s submission that this decision cannot be retrieved by applying the law as we have found it to be to the tribunal’s findings.  We give one example, encapsulating the problem.  At paragraph 50 the tribunal say this:

“We note that there was not at any stage an assessment of the applicant’s disability.  That may helped to have identify (sic) problems at an early stage and may well have resulted in the school adopting different measures.  However, it is not obligatory for an employer to have an assessment and the absence of it does not necessarily mean that we must infer discriminatory conduct.”

8	As to that paragraph:

(a)	Whilst the question of inference may arise in a section 5(1) complaint, it does not arise in relation to the section 6 duty.  That is simply an enquiry into what the employer did or did not do and what he ought to have done.

(b)	Whilst not obligatory, if an assessment would have resulted in the school adopting different measures that begs the question without answering it whether some adjustments ought reasonably to have been made but were not.

9	More generally, the tribunal appear to have found, in relation to the section 5(2) claim, that the respondent did not learn of the full extent of the appellant’s disability until a meeting held on 16 October 1998.  They say, at paragraph 46:

“We find that the duty to make further adjustments would not have arisen until after the meeting in October 1998.  However, there are no facts after that date within the ambit of these proceedings which would render the respondents liable under section 6 of the 1995 Act.”

We think that Mr Beever was right to accept that it is difficult to see from their reasons what stance the tribunal has taken in relation to the position before and after 16 October 1998.  Further, as we have earlier indicated, that line of enquiry may be relevant to the question of justification, but not the first question of reasonable adjustments.

Conclusion

10	In these circumstances we shall allow the appeal and remit the section 5(2) complaint only to a fresh Employment Tribunal for rehearing.