Appeal No. EAT/0642/02/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 March 2003
                                                                                      Judgment delivered on 29 April 2003

Before
MR COMMISSIONER HOWELL QC
MR J R CROSBY
MR A D TUFFIN CBE

THE ROYAL NATIONAL THEATRE BOARD LTD	APPELLANT

MR S COLLINS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ANDREW SHORT
(Of Counsel)
Instructed by:
Ann Cutting [Employment]
8 Pied Bull Yard
London
WC1A 2JR	
For the Respondent	MS CATHERINE RAYNER
(Of Counsel)
Instructed by:
Messrs Thompsons
Solicitors
Congress House
Great Russell Street
London
WC1B 3LW	

MR COMMISSIONER HOWELL QC

1.	This is an appeal by the Respondents to the Tribunal proceedings below, whose full title is the Royal National Theatre Board Ltd, against the decision of the London South Employment Tribunal sitting on 15 April 2002 that for the reasons set out in their statement of Extended Reasons issued to the parties on 24 May 2002 Mr Sidney Collins, a long serving employee of the National Theatre, had been unfairly dismissed and had suffered discrimination by reason of disability when the Theatre terminated his employment on 12 February 2001.

2.	According to the evidence and the findings of the Tribunal, Mr Collins, who is now 64, had been employed for some 18 years in the Carpentry Shop at the National Theatre as a ‘Semi-skilled Carpenter’s Labourer’, doing the simpler jobs such as cutting up wood and panels, and ‘canvassing’ which involved stitching and stapling stretches of canvas on to wooden framing to make flat scenery ready for the painters.  The other carpenters in the workshop were all skilled carpenters, and Mr Collins’ job as the only assistant involved having to turn his hand as required to whatever simpler jobs happened to be needed; sometimes just fetching and carrying, but still for a large part of time involving the use of the normal carpenters’ machinery and tools in the workshop.  While doing such a task on 11 February 2000 (cutting up some large sheets of plywood into 300mm squares, as he had been told to do by the head carpenter) Mr Collins carelessly and in defiance of all safety precautions tried to flick an off-cut away from the blade of the powered bench-saw he was using, with just his bare hand instead of the pushstick provided on the machine for this purpose.  He caught the fourth finger of his right hand on the blade itself and lost the top third of the end joint; the first serious accident that there had ever been in the Theatre workshop in the 12 years since the present head carpenter had been there.  Mr Collins had to be taken to hospital for surgery, and did not return to work from then until the date of his dismissal a year later.

3.	The medical evidence was that after the initial surgery to repair the end of his finger the nerve endings had developed ‘neuromas’ which are extremely painful and tender lumps that can form as the nerves try to repair themselves and regrow.  Because of this condition Mr Collins was left with extreme sensitivity and pain in his finger and (dominant) right hand, involving a substantial loss of dexterity and grip so that he was no longer able even to play golf, and increased clumsiness so that it was no longer considered safe for him to use dangerous machinery (or, by his wife, even to handle china).  The only way of improving this was to have further surgery to remove the neuromas.  This the hand specialist to whom the National Theatre arranged for him to be referred advised was a comparatively simple procedure under local anaesthetic, with a better than 50% chance of total success in relieving the problem, but Mr Collins refused to consider it as he had no faith in further surgery and had been initially advised against it by his own GP.

4.	Mr Collins’ attitude at all times after his initial recovery from the accident was that he wished to return to work and considered he would be able to manage as he was; and he pressed to be allowed back for a trial period to demonstrate this.  In response to that, the National Theatre’s Health and Safety Officer Mr Harley in conjunction with the head carpenter Mr Jeffrey set up a controlled assessment which took place in the workshop on 14 July 2000, involving a series of typical tasks to test his capability and the safety of his being allowed back to do the different types of work he normally carried out.  The Tribunal expressly found this was an eminently fair approach, and the assessment was carried out fairly and objectively.  The result was to show clearly that Mr Collins was being overoptimistic.  He was in obvious pain or discomfort in most of the tasks and was not able to complete them all; he required frequent breaks, and was materially slower; and the employer was left with what the Tribunal found were ‘genuine and appropriate concerns’ about his safety if he returned to actual working even for a trial period as he suggested.
  
5.	On 24 November 2000 a meeting was held as part of the Theatre’s long-term sickness procedure, attended by Mr Collins and his Trade Union representative, to discuss what to do. By that time two reports had been obtained from the hand specialist: the conclusion that emerged from them was that Mr Collins could now return to work at simple labouring tasks, but without the further surgery recommended he would not be able to work at anything painful such as canvassing, or anything dangerous involving bench-saws or machinery because of the increased risks of injury through clumsiness.  So far as the Theatre was concerned this meant it was impossible for him to return at all since that excluded most of the tasks of his job: there was no job “just sweeping up”.  

6.	The Tribunal found that the Applicant made clear at the outset of the meeting that he would not countenance further surgery, and maintained his view that he should be allowed to return to work at once on a trial basis.  The head of the Theatre’s technical department (the line manager to whom the head carpenter reported) was unwilling to allow this, in view of the medical reports on Mr Collins’ current capabilities, the results of the previous trial assessment and the safety concerns expressed by Mr Harley.  The Tribunal found as a fact that Mr Collins or at least his Union Representative Mr Smith, would or should have known at the time of that meeting that the stage in the formal sickness procedure had been reached where the Theatre would be considering a decision about whether they could continue to employ him. 

7.	Following that meeting, the head of the technical department again contacted Mr Smith, to see if there was any chance of Mr Collins being persuaded to reconsider his decision to refuse the further surgery which could increase his capabilities; and Mr Smith reported after talking again to Mr Collins that the answer was still a definite ‘No’.  The Theatre considered whether they had any alternative jobs that would suit Mr Collins’ skills and present abilities, and the Tribunal accepted their evidence that the range of these was ‘effectively nil’.  The decision was then taken by the General Manager of the National Theatre to dismiss Mr Collins on the ground that following his accident and in his present condition he was no longer capable of carrying out the duties of his job, and it was not possible to alter these or provide him with an alternative job in such a way that he could safely return to work.  This was communicated to Mr Collins in a letter dated 12 February 2001, and subsequently confirmed on appeal by the Executive Director on 20 March 2001.  

8.	The Tribunal found that given the effects of his injury on his day-to-day life Mr Collins did count as a disabled person for the purposes of the Disability Discrimination Act 1995, and that finding was not challenged before us on appeal.  Nor is there any challenge to the Tribunal’s identification of the issues as being (on the unfair dismissal claim) whether the Theatre had acted reasonably in treating its reasons for dismissing Mr Collins on 12 February 2001 as sufficient; and (on the disability discrimination claim) whether in terms of sections 5 and 6 of the 1995 Act it had complied with its duty to make reasonable adjustments for his disability, or had discriminated against him unlawfully by failing to make such adjustments and dismissing him instead.  They dealt first with the disability issues, criticising the Theatre for having focussed from the time of the trial task assessment in July 2000 ‘on what the Applicant was unable to do, and not on how the situation could be created whereby he could continue to work’; and giving their view that the Theatre could have done significantly more in the direction of seeing what adustments could be made to accommodate the Applicant.  They said:

“27. … There was an understandable, but overly [sic], caution about allowing him back to see what he could do.  We are not persuaded in particular that there was a genuine examination of what modifications to equipment could have been available to help.  Despite the assessment, in our view there was the opportunity to allow him to grow back into the job (allowing some tolerance for time, regeneration of strength, practice and fitness), and that this, as frequently requested by him, would have better identified what he could do, rather than having the emphasis on what he could not do.  We accept that with the Applicant’s particular skills the range of alternative jobs was effectively nil.  We are left though with the conclusion, on the evidence, that the Respondent could and should have more actively pursued these alternatives, to see what could be done.
28.  We accept that there was a real possibility that in the end there would not be a solution, but in all the circumstances we take the view that it was reasonable for the Respondent to take such steps, and that it did not do so.  In all the circumstances we find that this failure was not justified.”

9.	The Tribunal appear to us to have thereby found that there was, in their view, a failure on the part of the Theatre to take steps reasonably required of them under section 6 of the Disability Discrimination Act 1995: those steps being to allow Mr Collins back to actual work for a trial period, to see what he could do as he had been asking.  We think it is also apparent from the last two sentences we have quoted from paragraph 28 that the same circumstances which were held to amount to a failure on the part of the Theatre to take reasonable steps under section 6 were also the basis of the conclusion that this failure was not justified: the reasons for those two conclusions are not separately identified anywhere else in the decision.  On that basis, the Tribunal upheld the complaint of unlawful discrimination on the ground of disability in dismissing Mr Collins instead of allowing him back to work.

10.	On the unfair dismissal claim the Tribunal quite correctly directed themselves that the question was whether the employer’s reason for the dismissal, which they found to be that Mr Collins’ injury prevented him from carrying out his job, had been reasonably treated as a sufficient reason to dismiss him.  Having regard to the medical evidence and the way the matter developed they said that in the end it was the question of further surgery which became the crucial issue, and that on this the Theatre ‘was understandably bound to pay heed to what the Specialist had reported’.  Nevertheless, the single reason why the Tribunal found the dismissal to have been unfair appears from paragraph 35 of the Extended Reasons where they said:
“35. When the issue of further surgery was raised the Applicant took the suggestion to his own General Practitioner who dismissed it out of hand.  At this point it seems to the Tribunal that it was most unlikely the Applicant would ignore such an opinion, as indeed he did not, and yet his expressed refusal became in the end the trigger for the dismissal.  It seems to us that as a minimum at that stage the Respondent should have taken steps for the Specialist and the General Practitioner to consult together, so that the Applicant could make his decision based on a consistent medical view.”

They concluded that for all its careful attention to the case the Theatre had not acted reasonably in not having done that, and that the dismissal was accordingly unfair.  

11.	We were told at the appeal hearing that there were other aspects of the dismissal on which reliance had been placed on Mr Collins’ behalf, as showing that it had been substantively or procedurally unfair; but apart from commenting that the Theatre’s failure to secure a consistent medical view had been ‘compounded by the lack of absolute clarification to him at the 24 November meeting that this was the final moment of decision’ those were not dealt with in the Tribunal’s reasons. 

12.	The Theatre appeals against the Tribunal’s decision on both aspects of the claim.  On its behalf Mr Short contended that the conclusion on disability discrimination was erroneous in that the Tribunal had failed properly to consider or apply the test of justification in section 5 of the 1995 Act as set out in Post Office v Jones [2001] ICR 805; alternatively that it was not possible to identify proper reasons for the Tribunal’s apparent conclusion against the employer on that issue.  On the unfair dismissal claim the Tribunal’s conclusion was perverse in holding it unreasonable of the Theatre not to have taken steps to secure consistent medical advice for Mr Collins and to have based themselves on his repeated refusal to consider further surgery; that could not be unreasonable in the sense required by section 98(4) Employment Rights Act 1996 especially as the evidence showed the Theatre had specifically suggested to Mr Collins that he should take the specialist’s report advising the operation to his GP and Mr Collins had in fact done so.   On behalf of Mr Collins, Miss Rayner submitted that the Tribunal’s conclusion on the failure to take reasonable steps to make adjustments for Mr Collins under section 6 Disability Discrimination Act 1995 was one they were entitled as the Tribunal of fact to reach (a proposition with which Mr Short did not disagree) and their findings on this provided a sufficient basis for the conclusion that the failure had not been shown to be justified under section 5, so that it should be left undisturbed.  Similarly it was a permissible finding for an Employment Tribunal to make that any reasonable employer in the circumstances facing the Theatre in November 2000 must have taken some further steps to ensure that such a long standing employee was able to make his decision about further surgery on a rational basis, if this was indeed the crucial issue on which his dismissal depended; and on that footing the decision to uphold the unfair dismissal claim could not be characterised as perverse.
 
13.	Dealing first with the disability discrimination claim, it is in our judgment clear that there are two separate and distinct questions to be asked under sections 5 and 6 of the Disability Discrimination Act 1995 when a complaint is made that a failure to make reasonable adjustments in accordance with section 6 has resulted in discrimination, so that the detriment to which it gives rise becomes unlawful conduct on the part of an employer of which complaint may be made under section 4.  Both sides before us were agreed that on the first question under section 6(1), the assessment of what steps it is reasonable for an employer to have to take in order to comply with its duty, and whether it has failed, is to be determined objectively according to the Tribunal’s own view of what is or is not reasonable in the circumstances of the particular case.  That in our judgment is clearly correct on authority, see for example Morse v Wiltshire County Council [1998] IRLR 352; Beart v HM Prison Service [2003] IRLR 238.

14.	However, that is only the first question: having established that there has been such a failure, a Tribunal is then required by section 5 to go on and consider the separate question under section 5(2)(b) of whether the employer ‘cannot show that his failure to comply with that duty is justified’.  Only if that separate condition is also met can a finding of discrimination for the purposes of section 5 be made.  That the language used in section 5(2)(b) does require that separate question to be addressed, even in the case of an established failure to do what the Tribunal considers reasonable under section 6, is apparent not only from Beart just cited, but also from the Court of Appeal’s consideration of the identical language of the second condition in the immediately preceding subsection 5(1)(b) in Post Office v Jones supra.

15.	Under that wording, the question whether the employer can show the defence of justification is not only a separate one from that of reasonableness under section 6, but one involving a different and (for the employer) less onerous standard.  In particular, the effect of subsections 5(3) and 5(4), by which the less favourable treatment, or as the case may be failure to comply with section 6, ‘is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial’ means that all that is to be addressed is whether the reason put forward by the employer as justification is (a) material and (b) substantial.  Provided that these not very demanding thresholds are met, it has been held by the Court of Appeal not to be for the Employment Tribunal to substitute its own view on whether it considers this shows a reasonable justification for the treatment or failure in question.

16.	In the particular context, obviously analogous to this case, of a risk assessment carried out by the employer to determine whether it is safe for an employee with a disability to be allowed back to work, Pill LJ said at [2001] ICR 805, 814 paras 25, 27: 
‘…Where a properly conducted risk assessment provides a reason which is on its face both material and substantial, and is not irrational, the Tribunal cannot substitute its own appraisal. … a reason may be material and substantial within the meaning of the section even if the employment tribunal would have come to a different decision as to the extent of the risk. …  This constraint limits the power of Tribunals to provide relief to disabled employees but in my view it follows from the wording of the section, which requires consideration of the reason given by the employer, and recognises the importance of the employer’s responsibility for working practices.’  

And at para 41, Arden LJ said of the Tribunal’s function in judging the factual questions of whether a reason is ‘material’ and ‘substantial’ that 
‘… the employment tribunal should not conduct an enquiry into what is the best course of action to take in all the circumstances of the case.  Nor are the tribunal required to be persuaded themselves.  They are not entitled to find that the employer’s reason for the discrimination was not justified simply because they take the view that some conclusion, other than that to which the employer came, would have been preferable.  Nor can they conclude that justification has not been shown simply because they entertain doubts as to the correctness of the employer’s conclusion.  If credible arguments exist to support the employer’s decision, the employment tribunal may not hold that the reason for the discrimination is not ‘substantial’ … So far as the second limb of section 5(3) of the 1995 Act is concerned, justification is shown provided that the employer’s reason is supportable.’

17.	We accept the force of Miss Rayner’s argument that to construe the wording of the justification defence in section 5 this narrowly is, in the context of alleged discrimination under section 5(2) in a failure to make the adjustments a Tribunal has already found under section 6 were reasonably required in the circumstances, to deprive the inquiry under section 6 of much of its useful effect.  What, it may be asked, is the point of having such detailed provisions as those set out in section 6 for considering what steps it would have been reasonable for an employer to take to relieve a disabled person of the disadvantages of his disability, and requiring a Tribunal to reach its own view on whether there has been a failure on the part of the employer to do what is reasonable in all the circumstances, when in the majority of cases the effect of that conclusion may be nullified by the employer demonstrating under section 5(2)(b) that it had a reason which cannot be characterised as merely trivial or insubstantial, albeit one the Tribunal has already rejected as affording no reasonable ground for the failure?

18.	On that basis, Miss Rayner invited us to distinguish Jones and hold that there must be some implied limitation in the defence in section 5(2)(b) in cases of failure to make adjustments, so that a factor already taken into account by the Tribunal in the assessment of what is or is not ‘reasonable’ under section 6, and already rejected as an excuse by the finding that there has been a failure under that section, may not be given a second lease of life so as to establish justification on the much lower test held by the Court of Appeal to be applicable to the employer’s defence under section 5.  Despite our sympathy for the underlying argument about the inconsistency with the apparent intention behind section 6, we have felt unable to accept this submission, given the clear decision of the Court of Appeal on the identical wording in the immediately preceding subsection 5(1)(b).  This, as Mr Short pointed out, also appears in section 5(5) where a conclusion of discrimination under section 5(1) may in turn depend on a question on whether justification has been established under section 5(2)(b) in a case where a section 6 duty is in point; it would be quite extraordinary if, without any apparent indication in the section itself, the identical words ‘he cannot show … is justified’ were held to mean different things in the different subsections, or impose different standards for the test to be applied or the factors taken into account.  

19.	We have therefore to regard the Court of Appeal’s interpretation as binding for the purposes of section 5(2)(b) even though as Miss Rayner correctly pointed out the actual decision in Post Office v Jones was concerned only with section 5(1)(b).  On that footing, it appears to us that the Tribunal’s expressed reasons in paragraphs 26-28 of their Extended Reasons do embody a material misdirection in that the consideration of whether there had been a failure on the part of the Respondent to take reasonable steps under section 6, and whether the defence of justification under section 5(2)(b) had been established, is regarded as depending on the same circumstances and for practical purposes as the same inquiry, instead of having to be differentiated with two different tests to be applied.  That the Tribunal’s conclusions in those paragraphs depended on their own assessment what they considered it reasonable for the employer to do is apparent from the language used, with such phrases as 
‘It is our view … There was an understandable, but overly [sic] caution about allowing him back … We are left though with the conclusion, on the evidence, that the Respondent could and should have more actively pursued these alternatives … we take the view that it is reasonable for the Respondent to take such steps and that it did not do so’.  [Emphasis added]

20.	The conclusions on unreasonableness and lack of justification then immediately follow,  the Tribunal’s expressed reasons containing nothing to show that they regarded justification as depending on different questions and a different test, or that they were directing themselves to the less stringent standard required by the wording of section 5(2)(b) as laid down by the Court of Appeal.  In our judgment therefore their decision on the disability discrimination claim has to be set aside as erroneous in law for failing to differentiate the two questions.

21.	On the Tribunal’s single reason for allowing the unfair dismissal claim and holding the Theatre to have acted unreasonably, we have also concluded that Mr Short’s submissions are to be preferred, and that the Tribunal reached an impermissible conclusion in holding that the only reasonable course for any employer, despite the adamant refusal of Mr Collins to countenance any further surgery, would have been to take some steps (the Tribunal did not specify what these might have been) ‘for the specialist and the General Practitioner to consult together, so that the Applicant could make his decision based on a consistent medical view’.  

22.	In our judgment, that was not a reason that could properly found a conclusion that the Respondent’s actions in the circumstances that faced it in February 2001 were outside the band of reasonable responses for any reasonable employer, which both parties agreed is the relevant test the Tribunal should have been applying under section 98(4) of the Employment Rights Act 1996.   The Theatre did not of course have the power to make the two medical men agree; and we were not persuaded that in the face of Mr Collins’ repeated refusals it could be fairly said that any reasonable employer must have done more than to put forward the initial suggestion, and to obtain the final confirmation that he still remained adamantly against the further surgery which according to the medical evidence was the only thing that could restore his capability.  As that was the only ground on which the dismissal was held unfair and no other ground was separately addressed, it has in our judgment to follow that the decision on this part of the claim has to be set aside as well.

23.	It was common ground between the parties by the conclusion of the argument that if we did so decide, there was no alternative to sending back the case to be redetermined at the Tribunal level.  Having heard argument from both sides on whether this should be to the same or a different tribunal, we have concluded that in this case the redetermination should if possible be carried out by the same Tribunal as has already heard the evidence and determined the primary facts: we see no reason to doubt their ability to reconsider the discrimination and unfair dismissal issues fairly and objectively taking their previous findings as a starting point and applying the legal principles as we have sought to explain them above.  We therefore remit the case to be redetermined by the same tribunal, unless that is impracticable in which case it will be for the Regional Chairman to determine the arrangements to be made for the rehearing.