Appeal No. UKEAT/0166/04/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 September 2004

Before
THE HONOURABLE LORD JOHNSTON
MR P R A JACQUES CBE
MR T STANWORTH

MISS E COLLINS	APPELLANT

THE HOME OFFICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR RAJEEV THACKER
(Of Counsel)
Instructed by:
Messrs John Halson
Solicitors
26 Hope Street
Liverpool
L1 9BX	
For the Respondent	MR CHARLES BOURNE
(Of Counsel)
Instructed by:
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London
SW1H 9JS	

SUMMARY

Disability Discrimination see 5(i) and 5(3).

Unfair Dismissal – procedural defects.

THE HONOURABLE LORD JOHNSTON

1.	This is an appeal at the instance of the employee against two findings of the Employment Tribunal in relation to her claims in respect of the disability discrimination and unfair dismissal.  On both issues the Tribunal found in favour of the employer.

2.	The background to the matter is that the employee commenced employment with the Respondents in May 2000.  She suffers from diabetes and it is not disputed that this renders her disabled within the meaning of the Disability Discrimination Act.  She began to suffer from health problems and looking at the relevant and salient facts she was ultimately in October 2001 referred to the Occupational Health Service which managed the questions of health of employees for the employer.

3.	She was not examined by that body at the time, the matter being decided by reference to her General Practioner’s notes.  On 10 January 2002 the Occupational Health Service’s report was received.  On 19 April 2002 the Respondent wrote to the Appellant stating inter alia that they were minded to dismiss her.  Representations were thereafter made on behalf of the Appellant and she attended an interview on 28 May 2002 where it was agreed that a further Occupational Health Support’s report would be taken prior to making any final decision.  This time she was examined by the relevant authority.

4.	The report in question was received on 27 August 2002.  No further consultation effectively took place although the report was sent to her under cover that she would be informed when the decision was made and inviting her to respond if she had any further queries.  On 18 September 2002 she was served with a letter informing her that she had been dismissed.  That letter is to be found in the bundle at page 122 and it is significant that the grounds stated for termination of the employment are:

“I have therefore decided that your employment with the Immigration and Nationality Department should be terminated on the grounds of failed probation due to unsatisfactory attendance and your last day of service will be Friday 25 October 2002.”

5.	As has been indicated, the issues before the Tribunal were quite separate namely the disability discrimination and unfair dismissal and we should deal with these separately.  

6.	With regard to the first issue namely the disability discrimination the decision of the Tribunal was in the following terms:

“6.	The decisions of the Tribunal were unanimous.  As to the disability discrimination complaint, it was noted that the respondent conceded the applicant’s disability on the grounds of both diabetes and depression, and that the burden to prove her case under the Act is on the applicant.  The material facts are that the applicant was on a probationary period of employment conditional upon satisfactory attendance.  After 6 and 12 months of employment the respondent was not satisfied having regard to the applicant’s absences, which were for other reasons than her disability.  The respondent was justified in refusing to confirm her employment.  The Tribunal can understand the applicant’s disappointment but thereafter her absence was attributed by her doctor’s to depression and not diabetes.  As at the effective of termination the applicant was still on probation and still submitting sick notes.  The applicant was dismissed and her probation was never confirmed because of her absences.  The applicant was not treated less fairly on the ground of her disability and indeed it is arguable that she was treated fairly on the ground of her disability and indeed it is arguable that she was treated more favourably on the ground of her disabilities.  The respondent would not have allowed her probationary period of employment to continue for so long but for her disabilities.  The respondent at all material times was awaiting confirmation of the applicant’s fitness to return to work but it never happened.  The applicant complained that she was not offered a phased return or part-time employment,, but the reason given by the respondent, (which was that the applicant was still at the date of termination unfit to return to work at all, either part or full-time) was reasonable and it was reasonable not to pursue the possibility of a phased return or part-time work until she was fit and could indicate a definite date for her return to work.  Any employee on probation would have been treated identically and their employment would not have been confirmed.  Moreover there was no evidence of any other employee on probation being offered a return to work on a phased or part-time basis and therefore the Tribunal was not satisfied the applicant was treated less fairly in that respect.  In addition the Tribunal is not satisfied a phased return would have been a reasonable adjustment and/or that it would have altered the position; the fact is that at all material times the applicant was medically certified as unfit to return to work.  A reasonable employer could have done no more than the respondent did.  The Tribunal is not satisfied that any problems with a refrigerator and/or facilities for injection were sufficient to amount to a failure to make reasonable adjustments, and in particular, the applicant had not raised those matters for some time and when she did (as to the refrigerator) the respondent took action.  The respondent cannot be fairly criticised on those aspects.  The reason to dismiss itself was not discriminatory, but was based on the failed probation based on the applicant’s sickness record.  The applicant sought to assert that the respondent should have treated her more favourably, but there is no duty under the Act so to do.  Accordingly the complaint under Disability Discrimination Act fails and is dismissed.  However, even if that decision is wrong and the applicant had established less favourable treatment, the Tribunal is satisfied that the reasons given by the respondent were material and substantial and justified within the Act.”

7.	We were favoured by two excellent skeleton arguments and verbal argument in respect of this as well as the other matters and the issue ultimately turned on whether or not in relation to this question the Tribunal had properly addressed the issues raised respectively by Sections 5(1) and 5(3) and 5(2) and 5(4) of the relevant legislation.  As the argument progressed it became apparent that really in both aspects of this matter were concerned with the issue of justification.  We say this because there can be no doubt that the Tribunal misdirected itself when they say in the centre of the paragraph which we have quoted the Applicant was not treated less fairly on the grounds of her disability.
 
8.	It cannot be disputed that it is plain that the Appellant was treated less favourably because of her disability because she was dismissed under reference to it.  Thus, the issue of justification has to be focussed.  This matter is focussed principally within Jones v Post Office [2001] IRLR 384 and the criticism that was essentially made was that the Tribunal might have been entitled to hold that the unfavourable treatment was justifiable on a material and substantial reason.  They gave no reasons for so stating and left therefore the Appellant in the position that she could not know why she had lost this particular aspect of the case save on the basic board assertion.  Despite Mr Bourne of Counsel’s valiant attempt to rescue this position on a question of fact we are entirely satisfied that the reasoning of the Tribunal in this respect is wholly defective and cannot stand.  The consequence of that we will consider in due course.

9.	The separate issue under discrimination namely 5(2) and 5(4) raises the question of reasonable adjustment and this in turn has been focussed in three cases recently: Paul v National Probation Service [2004] IRLR 190, Collins v Royal National Theatre Board [2004] IRLR 395 and comprehensively in Archibald v Fife County Council [2004] IRLR 651, a decision of the House of Lords.  Here the issue really turns in respect of justification because there was no attempt to make any adjustment in terms on offer to the Appellant and here again as the Tribunal point out in their findings of fact the background to the matter is a plain policy on the part of the employer not to offer return to work on part-time medical grounds to somebody who has been ill, until a date can be identified when such a period of work could start.

10.	It is trite law and indeed recognised in a case to which we were referred that an employer cannot justify a failure to make any adjustment by reference to a policy which not in itself capable of being sustained under the section and we have no hesitation in concluding that the Tribunal so far as they offer any reasons at all, misdirected themselves in rejecting that notion in accepting the policy sufficient to justify the acts in question.

11.	We therefore consider that no reasonable Tribunal upon this evidence could have concluded that there was no discrimination against the Appellant in respect of the issue of reasonable adjustment and accordingly this aspect of the case in respect of the Appellant’s appeal must succeed.  We will again deal with the consequences of that in due course.

12.	Regarding the complaint of unfair dismissal the matter is very narrowly focussed and it is quite properly recognised by both parties as a procedural question.  Again Mr Bourne valiantly sought by references as to the background facts to suggest that the employer had acted quite reasonably and fairly in treating the reasonable dismissal which on one view of the dismissal letter might be said to be conduct but upon the other could be properly classified as capability.  However we consider that it is fundamental that after the second medical examination where she was actually examined there should have been a further consultation with her specifically to assess the position which might, for all seen, have had a wholly different result.
 
13.	It is fair to say that with regard to both aspects of the case, that is discrimination and unfair dismissal, we are confirmed in our view that the employer has not acted fairly in this issue by reasons of the fact that “the minded to dismiss letter” coloured the whole proceedings thereafter and all it would appear to be that happened when the dismissal was effected was that the employer was confirming what was effectively a decision half taken already.  This goes fundamentally to the question of unfair dismissal and also colours the notion of reasonable adjustment, one was left with the distinct feeling, if that is the right word, that the employer for all that has been passing in internal memos, was not really intending to make any effort to rehabilate this employee until she indicated that she was willing and able to return to work. We consider that in both aspects of the case this amounts in one case to discrimination and the other case to unfairness.

14.	In these circumstances this appeal will succeed.  We also consider that having regard to the evidence that was before the Tribunal and indeed us that no further investigation of the matter is likely to reach any other result in as much as we consider that no Tribunal properly instructed could have come to any other decision but that there was both discrimination and unfair dismissal.

15.	In these circumstances we do not propose to remit the matter back to a new Tribunal in respect of the merits of the matter but will in each case quash the decision of the Tribunal and substitute findings that she was respectively discriminated against under the Disability Discrimination Act and also unfairly dismissed.

16.	As to disposal we were invited by Mr Bourne to return the matter to the same Tribunal for remedy while Mr Thacker submitted to us that he thought that it was safer and indeed appropriate for the same to go to another Tribunal, it being inappropriate for it to go back to this one in view of the remarks made by the Tribunal towards the end of their decision on the question of reengagement and reinstatement which may still be a live issue.  On balance we think the former is a better course.  Therefore we will remit the matter to a freshly constituted Tribunal to deal with remedy.