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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ree v. Redrow Homes (Yorkshire) Ltd [2003] UKEAT 0035_03_0904 (9 April 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0035_03_0904.html Cite as: [2003] UKEAT 35_3_904, [2003] UKEAT 0035_03_0904

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APPEARANCES

 

For the Appellant	MR A ROSS (Of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE
For the Respondent	MR DAVID READE (Of Counsel) Instructed by: Redrow Group Services Ltd Redrow House St David's Park Flintshire CH5 3RX


 


JUDGE PROPHET

1. Mr Daniel Ree submitted a complaint of disability discrimination to the Leeds Employment Tribunal towards the end of April 2002. Those complaints arose in respect of his employment as an apprentice bricklayer with Redrow Homes (Yorkshire) Ltd which company is part of the Redrow Group. At the time of his application, he had been employed with the company for some 2 years, and was still so employed.
2. The application to the Employment Tribunal, submitted on his behalf by the Amicus Union, involved 2 complaints within the Disability Discrimination Act 1995. First that he had been subjected to a continuing act of discrimination arising from bullying both from other persons working with him and from managers. Secondly that there had been a failure to make reasonable adjustments to his working conditions.
3. The Notice of Appearance from the employer was in the form of a wide ranging defence taking issue on several matters following the employer's response to a questionnaire submitted prior to the application.
4. However, by the time of the hearing before an Employment Tribunal sitting at Leeds for 2 days on 2 and 23 September 2002, with Mr Grazin as the Chairman and Mr Blyth and Mr Cooke as lay members, the employers had modified their position to a considerable extent. They were then prepared to concede that Mr Ree, who is dyslexic, was at all material times a disabled person as defined in the Disability Discrimination Act 1995 and that furthermore they had knowledge of this.
5. At that hearing Mr Ree was represented by Mr McAulay from the Amicus Union and the employers by Mr Reade of Counsel. The Employment Tribunal gave a reserved judgment following the hearing in support of their unanimous decision that all Mr Ree's complaints of disability discrimination were not well founded and were dismissed.
6. In reaching its conclusions the Employment Tribunal tackled an issue which was not pleaded in the Notice of Appearance but was subsequently agreed as being a proper issue for the Employment Tribunal to consider. That issue was whether the employers could be liable in law for disability discrimination by contractors labour as they might well be for similar discrimination by employees.
7. The Employment Tribunal held by reference to s58 of the Disability Discrimination Act 1995 that the employer could not be so liable and therefore it was unnecessary for them to make factual findings as to whether the bullying which Mr Ree complained about from operatives of the contractor amounted to disability discrimination or not.
8. The appeal today is a full hearing restricted to consideration of whether there may have been an error of law by the Employment Tribunal in reaching the conclusion that in any event there could be no liability on the employer. Mr Ross of Counsel represents Mr Ree and for the employers we have Mr Reade of Counsel. We noted above that Mr Reade was at the Employment Tribunal representing the employer. Mr Ross' submissions are essentially in 2 parts which may conveniently be referred to as 'the employment status argument' and the 'Burton v De Vere argument'. That well known case is reported at [1996] IRLR 596.
9. We deal first with the 'employment status argument'. What Mr Ross says essentially about that is that the Employment Tribunal's conclusion that there was not in this case a contract 'personally to do work' did not take sufficient account of the specific contract, and that that conclusion was reached by the Employment Tribunal by reference only to the standard conditions for contractors which are usual in contracts of this nature. Mr Reade on the other hand argues that the Tribunal's decision on that matter should not be disturbed. They properly directed themselves to having to decide whether the contract between the contractor and the employer fell within the phrase 'personally to do any work' and they found that that was not the case.
10. We accept that Mr Reade has a strong submission here. The Tribunal were aware of the basic nature of the contract ie to provide bricklaying services. The Employment Tribunal's answer to the critical question of whether the contract could properly be described as one which involved a contract personally to do work was that it was not.
11. That was a conclusion which it was open to them to reach, and gives rise to no error of law. Consequently that part of the appeal fails.
12. We turn now to the Burton v De Vere argument which has been a very interesting one for us to consider. What Mr Ross says in this respect is that the Employment Tribunal should have considered the possible application of the principles in that case to the complaint of Mr Ree. As far as we are aware (and we are sure that Counsel who have been so helpful to us in this case would have alerted us if we are wrong) no previous case has decided whether the Burton v De Vere principles which undoubtedly apply to race and sex discrimination can be applied to the disability discrimination legislation.
13. There is however a preliminary matter which we have first to consider. We are aware that the Employment Tribunal was not called upon by Mr Ree's representative specifically to consider whether the principles in that case could apply in Mr Ree's circumstances although there is mention of a duty of control in para 17 of the Reasons. That has opened the way for Mr Reade to argue that having regard to Kumchyk v Derby County Council [1978] ICR 1116 we should be debarred from considering that matter at all today. Mr Ross however has submitted that the way Mr Ree's complaints were set out in the Originating Application to the Tribunal i.e. that Mr Ree was complaining about the actions of operatives as being part of his complaint against the employer is sufficient to enable us to consider that matter without offending the principles in Kumchyk.
14. We accept Mr Ross's submission on that point. We are satisfied that what was said by the Applicant in the Originating Application was sufficient to have prompted the Employment Tribunal to have considered whether notwithstanding that they correctly applied s58, the principles in Burton might be applied to this particular situation.
15. We now have to decide whether, as a matter of law, those principles can apply to disability discrimination. Mr Reade draws attention to the generic definition of discrimination in the Race and Sex Discrimination Statutes and compares the position in the Disability Discrimination Act where there is a separate definition of discrimination in the part of that Act relating to employment. From that he argues that the wording of section 5(1) in the Disability Discrimination Act does not permit the application of the Burton principles to the Disability Discrimination Act. His argument as taken from his skeleton argument goes as follows:

"It is always necessary for an applicant to establish that the employer has treated the applicant less favourably than he treats or would treat others to whom that reason does not or would not apply.

"Thus even if there were disability specific harassing remarks by third parties that does not establish a discriminatory act on the part of the employer."

Consequently contrary to the observations in De Vere, upon the different definition under the RRA discrimination, under the DDA discrimination can only be found on the part of an employer under S.5(1) if "for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply."

Even then if the circumstances of harassing remarks by third parties was sufficiently under the control of the Respondent that it could, by the application of good employment practice, have prevented the harassment or reduced the extent of it the Respondent will still not have discriminated against the Applicant unless the failure to apply those good employment practices was for a reason which relates to the disabled person's disability and in doing so it treated the Applicant less favourably the Respondent treated or would treat others to whom that reason does not apply."

16. The difficulty we perceive about that submission is that it does not allow the disability discrimination legislation to provide any protection for someone in Mr Ree's position, assuming that there was harassment from the operatives which could qualify as disability discrimination. If Mr Reade is right then it is simply unfortunate for the likes of Mr Ree but it is a necessary consequence of Parliament having enacted the Disability Discrimination Act in different terms to earlier discrimination legislation.
17. It would be an odd result if the principles in the Burton case could not be applied to disability discrimination simply because of the way in which the terms of the Disability Discrimination Act had been set down. We would favour as Mr Ross argues upon us a purposive construction of discrimination legislation so that so far as possible (and we recognise that it is not always possible) discrimination legislation moves in harmony. We can see no reason, adopting such a purposive approach, why the duty placed upon an employer by S.4(2)(d) of the Disability Discrimination Act (which has the same wording as that in both the Race Relations Act, and the Sex Discrimination Act and which was the basis of the Burton v De Vere ruling) should be thwarted by the definition of discrimination in S.5(1) of the DDA where the words 'a reason which relates to the disabled person's disability' are usually regarded as having a wide sweep. It seems to us that Mr Ross has a strong case for arguing that the 'control' principles enunciated in Burton should apply to the employer who has contract labour working on his site.
18. We recognise that there can be consequences from attempts to re draft legislation which are not anticipated and that our instinctive wish to try to interpret the legislation so as to provide suitable protection for disabled persons in situations of a working environment, could be pushing us too far in the face of Mr Reade's tight legal analysis. Indeed, being mindful of that, we have granted Mr Reade leave to appeal what is our unanimous conclusion i.e. that the principles in Burton v De Vere can be applied to the disability discrimination legislation.
19. On that basis therefore we are going to allow the appeal and return it to the Employment Tribunal for further consideration which will require them to make further findings of fact in respect of the complaints against the bricklaying operatives (see para 7 above).
20. Thus there is remitted to the same Tribunal the question of whether in this particular case the Respondent has discriminated against the Appellant contrary to S.5(1) of the Disability Discrimination Act 1995 by subjecting him to the detriment of harassment by third parties, contrary to the principles applied in Burton v De Vere [1996] IRLR 596.