Appeal No. UKEAT/0874/03/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 April 2004

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MRS D M PALMER
MR D WELCH

MRS M DIXON	APPELLANT

THE AUTOMOBILE ASSOCIATION LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS J WOODWARK
(of Counsel)
Instructed by:
Student Law Office
Room 0012
Sutherland Building
Northumberland Road
Newcastle upon Tyne NE1 8ST
	
For the Respondent	MR D CRAIG
(of Counsel)
Instructed by:
Messrs Eversheds Solicitors
Eversheds House
70 Great Bridgewater Street
Manchester M1 5ES	

SUMMARY

Disability Discrimination

Appeal against finding that dismissal of disabled Applicant (due to hearing difficulties unable to use telephone) for redundancy fair. No breach of s6 of Disability Discrimination Act 1995 by virtue of failure to consider offering a job (for which Applicant not selected on merit, by non-discriminatory method) for trial period, or by bumping another employee (not considered below). Appeal dismissed.

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1.	This is an appeal by Mrs Dixon from the unanimous decision of the Employment Tribunal at Newcastle upon Tyne, after a hearing on 26, 27 and 28 August 2003, handed down on 9 September 2003, that the Applicant was fairly dismissed for a redundancy reason and that her complaint that she was discriminated against was not well-founded and was dismissed.

2.	The Applicant was represented by Counsel below, who is different Counsel from Ms Woodwark who has appeared ably for her before us. The Respondent, the Automobile Association Ltd, was represented below by a solicitor and before us by Mr Craig of Counsel, upon whom we have not in the event called.

3.	There are, on the face of it, two grounds of appeal; but, as Ms Woodwark accepted at the outset of her submission, they blend together. Her first ground is that, put in general terms, the Tribunal failed to deal properly with s6 of the Disability Discrimination Act 1995. The second ground is that the redundancy was thereby rendered unfair, and thus an unfair dismissal. She accepted, in essence, that if this were an ordinary redundancy case, absent the features of disability, there would be no basis for challenge to it, but that what rendered the dismissal allegedly unfair was the same matter as that which in her submission rendered it disability discrimination, and consequently that there was either one successful argument in this case or none.

4.	The basis for her case is, as we have indicated, by reference to ss5 and 6 of the Disability Discrimination Act 1995. It is accepted that the Applicant was disabled in the sense that, as was found by the Tribunal, she was employed from January 1994 until 31 December 2002 as a Customer Adviser dealing with customers’ queries and renewals of motor insurance, but had hearing difficulties; and that constituted her disability, first diagnosed when she was 7 years old, but which, by the time she was dismissed, amounted to moderate to severe hearing loss at lower frequencies and profound hearing loss at higher frequencies, such that she was required to wear two hearing aids. It is common ground that she was unable to use the telephone, which was the main method by which customer complaints or requests were made in the department in which she worked.

5.	We shall turn in a moment further to the findings of fact by the Tribunal, but in the circumstances of this case, given the acceptance by the Respondent that the Applicant was disabled, the issue revolved around s6(1) and s6(3). They read as follows:

“6	Duty of employer to make adjustments
(1)	Where -
(a)	any arrangements made by or on behalf of an 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.
…
(3)	The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1) -
(a)	making adjustments to premises;
(b)	allocating some of the disabled person’s duties to another person;
(c)	transferring him to fill an existing vacancy;
(d)	altering his working hours;
(e)	assigning him to a different place of work;
(f)	allowing him to be absent during working hours for rehabilitation assessment or treatment;
(g)	giving him or arranging for him to be given training;
(h)	acquiring or modifying equipment;
(i)	modifying instructions or reference manuals;
(j)	modifying procedures for testing or assessment;
(k)	providing a reader or interpreter;
(l)	providing supervision.”

6.	The circumstances which led to the dismissal were, as found in paragraphs 5 onwards of the Tribunal Decision, as follows:

“5.	Mrs Dixon had instigated an investigation by the Respondents into the aids that she could be provided with to help her hearing deficiencies. This was because she wanted to work on the telephones as she would receive higher pay through bonuses. The Respondents made enquiries, one of which was to the Hearing Care Centre. The finding was that there was no equipment available to enable Mrs Dixon to use a telephone at work.
6.	It is common ground between the parties that initially when Mrs Dixon started to work for the Respondents the work was very heavily paper-based. Computerisation in the 1990s and over that decade, the move to working predominantly through the telephone lessened the need for paperwork. This came to be to such an extent in 2002 that there was considerable diminution in the paperwork involved in both Mrs Dixon's section and in other sections in the Respondents' insurance business.  Employees moved to work on the telephones. In Mrs Dixon's section there were 16-17 employees all of whom worked on the telephone except Mrs Dixon.  Information was inputted into the computer during telephone calls or immediately thereafter. Only Mrs Dixon was doing paperwork. In her evidence to the Tribunal, Mrs Dixon said that, at times, she had insufficient work to do in her section and went to other sections to find work.  Mrs Dixon was rated as excellent at her job. 
7.	Other sections had employees who could only do paperwork as they would not or could not work on the telephones. There were various sections in the Customer Service Unit, which is the name given to these sections by the Respondents. They were based in Newcastle and Cardiff. There were about 25 sections in total. Of those 25 sections 12 employees were unable or unwilling to use the telephone.”

7.	It was against that background which the commercial decision, which has not been a subject of any challenge either before us or below by the Applicant, occurred, namely that there would no longer be a call for employees in that department who were unable or unwilling to use the telephones. All the employees who fell into that category were addressed by a letter by the Respondent, and, in procedures which the Tribunal found to have been fair, were all, including the Applicant, considered for redundancy. They constituted, as either was common ground or at any rate was found and is not the subject of challenge, the relevant pool. All those who were unable to use the telephone other than the Applicant elected for redundancy.

8.	So far as the Applicant is concerned, the Respondent undertook a search to find alternative employment, which was one of the options that had been given by the Respondent in its initial letter of 16 August 2002. What happened thereafter is set out in paragraph 11 onwards

“11.	Ms Pike identified that there was a possibility for the redeployment of Mrs Dixon with another part of the Respondents' business, AA.com. They were recruiting.  AA.com uses the internet to maintain contact with customers, receiving queries from customers either by e-mail or by telephone. Operators are generally required to be proficient in both the use of e-mail and telephone. However, it was agreed that Mrs Dixon, if she was suitable, would not be required to operate the telephone. She would be given training. All prospective employees of AA.com were required to go through an aptitude test and an interview. Mrs Dixon had an informal visit to AA.com where she saw the operation and was able to ask questions about the prospective job.
12.	Mrs Dixon took the aptitude test. She had a very low score. She did not answer some of the questions in full. She was below the threshold for interview and in normal circumstances would not have been put forward for interview. However, Ms Pike persuaded Ms Richardson, who was in charge of the procedure, to have Mrs Dixon for interview. Ms Pike felt that Mrs Dixon would reveal her skills and ability through the interview. Ms Richardson and Mrs Dixon agree that the interview was a very poor performance by Mrs Dixon. Mrs Dixon accepts that her disability did not cause her any difficulties in the completion of the aptitude test or at the interview [this is a finding which the Tribunal refer to twice subsequently in its decision and it appears to have been based on a concession by the Applicant in evidence]. The result of the aptitude test and the interview was that Mrs Dixon did not reach the criteria for appointment to a job at AA.com and she was rejected. There were no other jobs available and she was accordingly made redundant.”

9.	That was the background against which the Tribunal made its findings. There was evidence given by the Applicant that she was told it was merely a formality for her to undergo the aptitude test and the interview, but that evidence was not accepted by the Tribunal: see paragraph 27 of its Decision. Nevertheless, it did accept that there was some confusion as to the status of the aptitude test and interview, and thought that it might be that Mr Hall, one of her superiors, who had a high opinion of her ability may have said to her that it was a formality that she would pass the test in those circumstances.

10.	But that aside, and that was the only hint of a suggestion of possible criticism of the Respondent, the Tribunal found in terms that the Respondent did not act unfairly or unreasonably and carried out the selection process fairly and taking into account her disability making all reasonable adjustments.
11.	The finding by the Tribunal, so far as redundancy and fair dismissal is concerned, is set out in paragraph 28 as follows:

“28.	The Tribunal accepts that there was a criterion for employment in AA.com and that was tested by the aptitude test and the interview. Mrs Dixon was not successful in either. The Tribunal notes that she failed initially on the aptitude test but nevertheless she was allowed to go forward to the interview in the hope that she would be able to convince Mrs Richardson that she was suitable for employment in AA.com. Mrs Dixon accepts that her disability did not play a part in her failure to secure that position. The Tribunal therefore comes to the conclusion that everything was done by Mrs Pike and Mr Hall to find alternative employment for Mrs Dixon. In those circumstances we consider that the dismissal was a fair dismissal.”

12.	Against the background of those findings, both of fact and of law in relation to unfair dismissal, the Tribunal then set out its conclusion under paragraphs 29 and 30 in relation to disability discrimination as follows:

“29.	We also have to consider the Disability Discrimination Act. It is clear that Mrs Dixon must succeed in her claim under the … Act in that she was treated less favourably because of her disability.

That effectively is a finding by reference to ss5(1) and 5(2). But then, so far as s5(2) is concerned, namely discrimination by virtue of a failure to comply with a s6 duty, the Tribunal acquitted the Respondent. It is against that finding that this appeal lies. So far as the finding that s5(1) was otherwise satisfied, the Tribunal found justification, as we shall indicate, under paragraph 30 of the Decision, and there is no appeal against that aspect of its conclusion. We continue paragraph 29:

“We do not find that she was discriminated against because of the Respondent’s failure to make reasonable adjustments. The Respondents did make reasonable adjustments. They arranged for Mrs Dixon to be considered for alternative employment. When she failed the aptitude test they persuaded Mrs Richardson to allow her to go to interview.  Her disability did not affect her performance in either of these. An adjustment was to be made if Mrs Dixon was suitable for employment in AA.com, that she did not need to use the telephone. We are satisfied there is no discrimination in regard to section 5 (2).
30	We have to consider whether the discrimination under section 5 (1) is justified. We consider that it is, and for the reasons that we have already given in regard to the unfair dismissal. Every effort was made to find a job for Mrs Dixon. One was identified but required her to have sufficient skills to be able to perform that job. We do not accept that it would be for the employers just to slot her into a job irrespective of whether she could not do it. In the circumstances her dismissal was justified.”
13.	As we have indicated, the prima facie breach of s5(1) was held to be justified in those circumstances. There was found to be no breach of s5(2) by virtue of no breach of a s6 duty and thus justification did not arise. No doubt the issue of justification would have been addressed by the Tribunal in similar terms to paragraph 30 had it concluded that justification did arise.

14.	The basis of Ms Woodwark’s challenge to the finding under s5(2) that there was no breach of duty by the Respondents in respect of the section 6 reasonable adjustments is not put by her on the basis that the conclusion of the Tribunal was perverse. But of course an error of law has to be identified and it is put, in her words, on the basis that there was a misdirection by the Tribunal in relation to section 6 (3). It is necessary to see what is meant by that assertion by Ms Woodwark.

15.	On the face of it the Tribunal correctly directs itself, so far as the law is concerned, under the 1995 Act. In paragraph 19, ss5(1) and (2) are set out and the justification sub-paragraph in paragraph 20. In paragraph 21 there is reference made to s6. Ms Woodwark submits that the entirety of s6(1) is not there set out, but it appears clear to us that the nub of s6(1) and indeed of s6(3) is captured in that paragraph.

16.	It is quite plain that the Tribunal knows its obligations to address whether there has been a breach of a s6 duty, and in terms refers to the examples of steps that could be taken to ensure that there is no substantial disadvantage in s6(3) in paragraph 21. Two of such paragraphs are specifically mentioned: 6(3)(b) and 6(3)(c). The Tribunal also expressly refers to the guidance which has been provided by the Secretary of State in accordance with s3 of the Act.

17.	There is no need for a Tribunal to set out in terms the contents of that guidance and it is not suggested by Ms Woodwark that there was such an obligation. The relevant paragraphs of the material Code of Practice, to which we have been referred, namely the Code of Practice for the Elimination of Discrimination in the field of employment against disabled person or persons who have had a disability (1996), are in paragraphs 5.26 and 6.21. 5.26 reads as follows, under the heading “What if a disabled person just isn’t the right person for the job?”:

“An employer must not discriminate against a disabled candidate, but there is no requirement (aside from reasonable adjustment) to treat a disabled person more favourably than he treats or would treat others.  An employer will have to assess an Applicant’s merits as they would be if any reasonable adjustments required under the Act had been made.  If, after allowing for those adjustments a disabled person would not be the best person for the job the employer would not have to recruit that person.”

That obviously has specific resonance in relation to a case here where there was, in essence, no challenge to the reasonableness of the approach by the employer in relation to the existing job where the Respondent had taken every possible step to accommodate her, or the effective closing down of that job, but where the whole challenge was and is to the failure to offer some alternative job to the Applicant. The other paragraph is at 6.21, the relevant part of which reads as follows:

“Dismissal – including compulsory early retirement – of a disabled person relating to the disability would need to be justified and the reason for it would have to be one which could not be removed by any reasonable adjustment.
It would be justifiable to terminate the employment of an employee whose disability makes it impossible for him any longer to perform the main functions of his job, if an adjustment such as a move to a vacant post elsewhere in the business is not practicable or otherwise not reasonable for the employer to have to make. …
An employer who needs to reduce the workforce would have to ensure that any scheme which was introduced for choosing candidates for redundancy did not discriminate against disabled people. Therefore, if a criterion for redundancy would apply to a disabled person for a reason relating to the disability, that criterion would have to be “material” and “substantial” and the employer would have to consider whether a reasonable adjustment would prevent the criterion applying to the disabled person after all.”

18.	In paragraph 22 of the Tribunal’s Decision there is express reference by the Tribunal to Clark v TDG Ltd t/a Novacold [1999] IRLR 318 and to Morse v Wiltshire County Council [1998] ICR 1023.  The Tribunal refers to Morse in this way, namely that it:

“gives guidance to Tribunals as to the sequence of events to go through to see whether there is a failure to apply a section 6 duty.” 

That is a reference to the helpful passage in the judgment of Bell J in that case at 1033D through to 1034C. That includes the need to look at each of the sub-paragraphs of s6(3).

19.	We have read the concluding paragraphs of the Tribunal’s Decision. What then does Ms Woodwark mean by her allegation that there was a misdirection, because on the face of it the Tribunal has correctly directed itself? On analysis the only basis, given the lack of reliance, and correctly so, on any issue of perversity, which Ms Woodwark can put forward is that, notwithstanding what was on the face of it a correct direction by the Tribunal, the Tribunal failed in fact to address some specific sub-paragraph of s6(3), and thus erred in law by failure to find, by addressing that sub-paragraph, that there had been a breach of it. There is only specific reference to ss6(3)(b) and (c).

20.	Where is it or what is it from which Ms Woodwark can seek to draw the material to say that this Tribunal failed to address some paragraph of 6 (3) as she alleges? It is plain, as we have indicated, the Tribunal found, and indeed there was no challenge in this regard by the Applicant, that there was no breach in relation to the existing job. So far as the alternative job is concerned, the Tribunal found, as we have indicated, that the Respondent acted properly and reasonably and did make a number of reasonable adjustments:

(1)	(and this would obviously be a reference to s6(3)(j)), the Respondent modified the procedures for testing or assessment by passing her through to the interview even though she had failed the aptitude test. Further, on the findings by the Tribunal, there was no need for any other adjustment. Indeed, that was so on the concession of the Applicant herself, either in the course of the test or in particular at the interview.

(2)	the Tribunal found, plainly, that so far as the new job was concerned, the necessary adjustment would have been made had the Applicant passed the aptitude test and the interview, by reference to the fact that she would not have been expected to or required to operate the telephone had she got the job (para. 11 of the Decision) and, further, that she would have been given training (also at para. 11 of the Decision). That not only copes in general terms with consideration under sub-paragraphs (c) and (e), but on its face, it deals with sub-paragraph (g), reference to training, and once again implicitly with sub-paragraph (j).

21.	Given the fact, as we have indicated, that Ms Woodwark was not running, and indeed could not conceivably have sought to run, perversity, it is difficult to see how any of those matters could begin to get off the ground a case of misdirection or failure to address issues; and so one looks only to those matters which she must assert were not dealt with in order to see whether the suggestion that they were not dealt with suggests also that relevant sub-paragraphs were not addressed. She submits that there was no adequate or no consideration of the question of training. In a manual prepared by the Respondent called “Job Security and Business Development Agreement Staff” there is reference to the following in paragraphs 5.3 and 5.4:

“5.3	Training/Retraining
The training and retraining of staff is an important factor in maintaining security of employment and every endeavour will be made to provide suitable programmes.
5.4	Redeployment
The redeployment of staff to similar or suitable alternative employment within the businesses of the Association will operate together with the additional necessary retraining requirements.”

22.	Ms Woodwark submits that in some way the Tribunal erred in failing to address adequately the question of training. It is plain that the Tribunal did address, as did the Respondent, on its findings, the question of training, but that such training would be given if the Applicant was otherwise suitable for the job and thus down the line, and not before applying for the job. Given the concession and finding that her disability did not render her less apt for the job provided the arrangements in relation of not answering the telephone were made, this is a finding which the Tribunal was plainly able to come to and certainly does not suggest for one moment that the Tribunal did not address sub-paragraph 6 (3) (g).

23.	The second matter to which the Ms Woodwark refers can in general terms be put under the heading of “trial period”. This whole question of trial period appears to us to arise as the result of a misconception or misreading of another section of that same document of the Respondent, to which we have referred. It is headed up “5: Alternative Employment” and it reads as follows, in material part:

“Where redeployment and/or relocation are necessitated by redundancy, the following additional provisions will apply.
…
5.4	The interest of staff in determining the suitability of an offer of alternative employment is recognised and accepted by Management. The use of trial periods is considered to be of prime importance in reaching a decision which may affect eligibility for a redundancy payment.
In all cases Management’s objective will be to mutually agree with the member of staff that alternative employment is or is not suitable but in any event, Management’s decision will be confirmed prior to the actual redundancy date. Only in exceptional circumstances will the right to a redundancy payment be refused.
…
5.6	On redeployment, staff will be given a three month trial period to determine the suitability of the alternative job. The only relocation benefits to apply during this period will be the Lodging Allowance including fares, or Excess Fares Allowance.
5.7	On acceptance of the alternative job during or at the expiry of the trial period there will be a further settling in period of six months.”

24.	Ms Woodwark sought to base upon that provision an argument that in some way there was an obligation on the part of the Respondent to place the Applicant, and indeed any other person made redundant, in some other job for a three month trial period, and that in not doing so, particularly where, as here, the Applicant had the additional problem of being disabled, was unfair, and failed to amount to the consideration or the interpretation of a reasonable adjustment, being an adjustment which was expressly provided for by the Respondents’ own procedures.

25.	We are, as we have indicated, satisfied that that is a misreading of this procedure. It is not in any way dedicated towards placing an obligation on an employer, having made an employee redundant, to make an offer of some alternative job with a guaranteed three month trial period. What it is intended to do is to ameliorate the difficulty which the statute places on an employee faced with an offer of suitable alternative employment, that there is only, on the face of the statute, a 28 day period before it may be held too late for that employee then to seek to claim a redundancy payment, because he/she may be held to have accepted the suitable alternative employment. This is a matter of, as it is put, “prime importance” enabling a decision to be made by the employee which may otherwise affect his eligibility for a redundancy payment without the 28-day shadow hanging over that employee.

26.	We are satisfied that any suggestion that this imposed some obligation on the employer to find some other job and give a three month trial period, is wholly uncommercial and is not what this provision says.

27.	That seems to have been the foundation of Ms Woodwark’s argument, and insofar as it is a necessary part of her argument that there was such an obligation on the employer it is misconceived. But, leaving that aside and omitting any question of obligation on the employer, the case could still be put forward by Ms Woodwark that the Respondent here could at least have considered the possibility, notwithstanding the absence of any obligation to do so, of offering some new job but with a trial period.

28.	The problem about that is the finding by the Tribunal that the assessment of the Applicant’s suitability for such job was fairly carried out, and fully took into account her disablement, and the Code, paragraph 5.26, in those circumstances, not only does not help the Applicant but positively stands in her way.

29.	We are satisfied that the Tribunal did consider the question of reasonableness of the employer in the context of making adjustments, and in particular by reference to ss6(3)(c) and (e) to which it made specific reference. However, Ms Woodwark’s ingenuity is not yet concluded because she coupled the allegation about an alternative job, faced with the difficulty of the careful assessment by the Tribunal in relation to the job that was offered, with a submission that there ought to have been yet further consideration by the Tribunal in relation to some other job, from which some other employee ought to have been bumped, and for which the Applicant might, unlike this job, have been fitted.

30.	In an ordinary redundancy case the employer is under no obligation to bump an employee from an existing job outside the pool in order for the redundancy to be fair: See Burn v Arven Meritor LVS UK Ltd (EAT 22 January 2003). But Ms Woodwark says that nevertheless consideration of bumping in this case ought to have constituted a reasonable adjustment at least to be had in mind by the employer, and she points to the authority which indicates that it is for the Respondent to justify the reasonable adjustments that were considered rather than for an employee to raise every alternative possibility: see Cosgrove v Caesar & Howie [2001] IRLR 653.

31.	She faces, in this regard, what we are satisfied are insuperable difficulties:

(1)	It is clear that the examples set out in s6(3) of the Act are not exclusive.  However, if indeed there is an obligation on an employer by way of reasonable adjustment, not simply, as is presently provided by example (c), to transfer that employee to fill an existing vacancy, but to create a new vacancy by bumping some other employee, or indeed to create a new job which does not exist at all, one would have expected that provision in terms to have been made by way of an example in s6(3). It is not, in our judgment, the kind of matter which an employer is required to dredge up as an alternative, in this kind of situation. What is required is a careful consideration by the Tribunal, and of course by the Respondent for the purposes of any subsequent Tribunal, of s6(3). If something wholly exceptional is going to be suggested, it is for the employee so to suggest.

(2)	It appears, at least Ms Woodwark so submits, that in broad terms some suggestion of bumping may have been made by the Applicant below. There is no indication that that was so, but, accepting that it was so, there was no evidential basis on which the employee could ever have succeeded in relation to establishing such a breach. If no such investigation was carried out, and certainly, as we have indicated, there is no mention of it in the Decision, in any event it would be too late for such an investigation to be carried out before us or for the point now to be run before us: see Kumchyk v Derby City Council [1978] ICR 1116.
32.	This kind of piling of Pelion on Ossa, namely asserting first of all that there was a failure to consider a trial period and then saying that there ought to have been some job created in which such trial period could then have been carried out, is not, we conceive, what was intended by s6(3) of the Act. However, if it was, in any event, this Tribunal cannot be shown to have erred in law in not addressing such an extreme possibility in terms when it is quite clear that the Tribunal did give very fair and very careful consideration to s6(3) and to all the arguments which in any sense were before it.

33.	We are satisfied that there was no error of law shown in the way in which this Tribunal addressed the problem before it, and certainly that the Tribunal on the one hand did not misdirect itself and on the other did not fail to address any specific sub-paragraph of s6(3). Even taking all Ms Woodwark’s arguments into account, it is still difficult for us to see within which sub-paragraph, apart from ss6(3)(c) and (e), which the Tribunal did address (absent an argument of perversity), this trial period point could be said to fall. Ms Woodwark submitted that it might possibly fall within s6(3)(l) but we do not agree with that.

34.	There was no error of law here. We dismiss the appeal.