Appeal No. UKEAT/0034/12/SM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

	At the Tribunal
	On 1 June 2012
	   Judgment handed down on 6 July 2012

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

MR G CONWAY	APPELLANT

COMMUNITY OPTIONS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DAVID RENTON
(of Counsel)
Instructed by:
Thomas Dunton Solicitors
217-219 High Street
Orpington
Kent
BR6 0NZ	
For the Respondent	MR ANDREW MACPHAIL
(of Counsel)
Instructed by:
Berrymans Lace Mawer Solicitors
Kings House
42, King Street West
Manchester
M3 2NU	

SUMMARY
DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – Striking-out/dismissal

Exceptional case in which, on the undisputed facts, Employment Judge was entitled to strike out unfair dismissal and disability claims.  Anyanwu (HL), Ezsias (CA) and Tayside (CS) considered.

HIS HONOUR JUDGE PETER CLARK 

1.	The parties in this matter proceeding before the Ashford Employment Tribunal are Mr Conway, Claimant, and (1) Community Options Ltd and (2) Mrs Chris Mansi, Chief Executive, Respondents.  The Claimant did not proceed against a third respondent, Sara Harvey.  I have before me for full hearing an appeal by the Claimant against the Judgment of Employment Judge Kurrein, sitting alone a Pre-Hearing Review held on 9 September 2011.  That Judgment with Reasons was promulgated on 5 October 2011.  The Judge struck out the Claimant’s claims of unfair dismissal and failure to make reasonable adjustments and disability related discrimination contrary to the Equality Act 2010.  The Claimant appeals the first two findings but not that of disability related discrimination.  The claims were struck out under rule 18(7)(b) of the ET Rules of Procedure 2004 on the grounds that they had no reasonable prospect of success.

Background
2.	The EJ did not hear oral evidence but had before him a bundle of relevant documents.  In carrying out a preliminary consideration of a case at a PHR the Judge may consider any oral or written representations or evidence (ET rule 18(2)(d)).  In the present case the Claimant appeared in person at the PHR and relied on written representations prepared by his solicitor.  The Respondent was represented by Mr MacPhail of counsel.  Based on the material before him the EJ made the following relevant factual findings in circumstances where he concluded (Reasons, para. 2) that those facts were either not in dispute or were closely evidenced by the documents before him.

3.	The Respondent is a registered charity which provides accommodation and support to people with mental health issues.  It employs some 140 members of staff.  The Claimant commenced continuous employment on 24 September 2007 as a support worker.  He was dismissed by letter dated 14 March 2011 on ill-health capability grounds.

4.	It was common ground that the Claimant was disabled; he suffered from depression and anxiety.  He was certified unfit for work due to that condition on 15 December 2009.  He did not return to work before his dismissal 15 months later.

5.	On 12 March 2010 the Respondent’s Occupational Health (OH) Adviser advised that the Claimant should not return to his previous duties.  He expected the Claimant to recover with time and treatment.

6.	On 15 June 2010 an OH doctor reported that he had received all appropriate treatments and support but was not then fit to return to work.

7.	The Claimant attended a meeting on 26 August 2010, having failed to attend meetings arranged for 9 and 23 July.  He then raised a grievance orally and was asked to put it in writing.  He did so on 15 October, complaining about the way in which the Respondent operated the residential unit at which he had been employed.  A grievance hearing was held on 15 November.  The Respondent accepted some of his criticisms and indicated that steps would be taken to address his concerns in a letter dated 7 December 2010.  It seems that the Claimant’s principal concern related to his manager at the unit at the time he went off sick.  That manager left the Respondent’s employment in Spring 2010.

8.	On 11 January 2011 Dr Christine Mason of OH reported to the Respondent’s HR manager, answering a number of questions posed in a referral form (bundle, p90).  She noted from her discussion with the Claimant that he felt that his symptoms had deteriorated over the previous few months; that the timescales for his recovery and return to work were difficult to predict; a return to work in the near to medium term (the next few months) was not anticipated even if adjustments such as a phased return to work or adjusted duties were considered.

9.	Dr Mason reported again on 2 March.  She had by then received a report from the Claimant’s treating specialist, who had commented that the Claimant’s response to treatment had not been as good as expected; a timescale for recovery was difficult to estimate.  In conclusion Dr Mason said:

“The timescales appear difficult to predict currently and further treatment options are planned and it is too early to assess response to these, as the psychological treatment is yet to start.”

10.	At that point Mrs Mansi arranged, with his consent, a telephone conference with the Claimant on 8 March 2011.  That medium had been used for an earlier conference between them on 15 February following Dr Mason’s first report.  On that occasion the Claimant indicated that he fully understood Dr Mason’s first report; he could not see the position changing in the near future.  Mrs Mansi warned him of the possibility of dismissal.

11.	On 8 March the Claimant indicated that there had been no change in his symptoms or situation.  Mrs Mansi informed him that in the absence of a timeframe for his return to work, the length of absence and the need to recruit to the project his employment would now be terminated.  He was informed of his right to appeal.  He did so.  The appeal proceeded in his absence on 13 April.  The dismissal was upheld.  A further appeal hearing was convened for 10 May.  The Claimant attended.  Again the appeal was dismissed.

Striking out – the legal principles
12.	In Blockbuster v James [2006] IRLR 630, a case involving strike-out under R18(7)(c) – conduct of the proceedings, Sedley LJ observed (para. 5) that the power (to strike out under R18(7)(a)) is a draconic power, not to be readily exercised.  In Anyanwu v South Bank Student Union [2001] ICR 391 the HL emphasised the importance of investigating the facts at a full ET hearing, particularly in cases of alleged unlawful discrimination.  Maurice Kay LJ returned to that dictum in Glamorgan NHS Trust v Ezsias [2007] IRLR 603.  He cited the well-known passages from the opinions of Lords Steyn and Hope in Anyanwu (para. 31), applying that approach to Mr Ezsias’ claim of ‘whistleblowing’.  At para. 29 he observed that it would only be in an exceptional case that an application to an ET will be struck out when the central facts (as in that case) are in dispute.

13.	A very recent example of the application of that principle is to be found in the Scottish Court of Session decision in Tayside v Reilly [2012] CSIH 46, 30 May 2012, upholding the decision of Lady Smith in the EAT to set aside the ET strike-out order, as she did in Balls v Downham Market High School [2011] IRLR 217.  The latter case was a strike-out under R18(7)(d); failure to actively pursue the claim; however Tayside was a strike-out case under R18(7)(b) as is the present case under consideration.  It is clear from the Judgment of the CS (paras. 31-32) that the court took the view, contrary to that formed by the EJ, that there were factual issues which required resolution at a full ET hearing.

14.	In these circumstances it is trite to say that a strike out under ET R18(7)(b) remains an exceptional course.  The question for me in this appeal is whether EJ Kurrein erred in law in striking out the two claims now the subject of challenge.  I shall consider each in turn.

Reasonable adjustments
15.	The duty to make reasonable adjustments, formerly contained in ss3A(2), 4A and 18B Disability Discrimination Act 1995, are now to be found in ss20-11 Equality Act 2010.  Section 20 spells out three requirements.  Materially (s20(3)) there is a duty on an employer, where a PCP puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.  That provision does not materially differ from s4A(1) DDA.  It is therefore necessary to first answer the relevant questions posed by HHJ Serota QC in Environment Agency v Rowan [2008] ICR 218:
(1)	whether there is a PCP applied by or on behalf of the employer;
(2)	the identity of the non-disabled comparators;
(3)	the nature and extent of the substantial disadvantage suffered by the employee.

16.	At paragraph 14 of his reasons the EJ found that the Claimant here has failed to identify any PCP which put him at a substantial disadvantage.  In advancing the Claimant’s appeal Mr Renton, who did not appear below, contends that the relevant PCP was a failure by the Respondent’s managers to provide support for their workers.  That is not how the case was put below in the solicitor’s written submissions, nor does it appear from the form ET1, apparently drafted by solicitors.  I further doubt whether a failure to provide support could amount to a PCP.  However, let me assume for the purposes of the strike-out question that the Claimant had some prospect of establishing that he was subjected to a PCP which placed him at a substantial disadvantage in comparison with able bodied employees.  The next question is what adjustments ought reasonably to have been made so as to avoid the disadvantage?

17.	Plainly, at its highest, the Claimant’s case was that adjustments ought to have been made which would enable him to return to work.  It is here that the claim founders, in my judgment, as the EJ went on to find at paras. 14.1-14.4.  The medical opinion evidence was plain and unchallenged by the Claimant.  He had been off sick for 15 months; it was inadvisable for him to return to his former role; he was not fit to return to work in any other role; a phased return to work was inappropriate; in these circumstances there were no reasonable adjustments which could be made to enable him to return to work. 

18.	At the forefront of Mr Renton’s submissions is the proposition that the Claimant’s absence from work was due to management’s lack of support.  However, as Mr MacPhail points out, the OH report of 11 January 2011 said in terms that a return to work in the near to medium term was not anticipated even if adjustments such as a return to work or adjusted duties were considered.  Dr Mason did not resile from that view in her second report dated 2 March 2011.  Further, the Claimant’s grievances were addressed by the Respondent in December 2011 but that did not facilitate the Claimant’s return.

19.	It follows in my judgment, that on the unchallenged medical opinion evidence before the Respondent there were no adjustments which could be made to enable the Claimant to return to work.  That was a conclusion properly open to the EJ.  There is no error of law in his final determination that the reasonable adjustments claim had no reasonable prospect of success.

Unfair dismissal
20.	The interesting question as to whether a finding of failure to make reasonable adjustments necessarily leads to a finding of unfair dismissal therefore does not arise in this case.  The potential merits of this unfair dismissal claim will depend on the factors identified by Phillips P in East Lindsey DC v Daubney [1977] ICR 566, to which the EJ directed himself (para. 4); I have corrected the case reference.  As to the question of reasonableness under s98(4) in relation to this ill-health capability reason for dismissal, the EJ concluded (para. 12) that the Claimant had been continuously absent from 15 December 2009 until 8 March 2011; the Respondent had sought medical evidence and advice concerning the Claimant’s condition and prognosis.  He had been provided with the relevant reports and did not disagree with them.  He did not provide his own medical evidence.  He himself was pessimistic as to his ability to return to work (see the telephone conference with Mrs Mansi on 15 February 2011).  I note also the EJ’s finding in relation to the justification defence raised by the Respondent in the disability-related discrimination claim (not the subject of appeal) that it was not reasonable to expect the Respondent to bear the cost of engaging temporary workers to replace the Claimant with no return to work in sight (para. 18).

21.	In these circumstances I agree with Mr MacPhail that on the agreed/unchallenged facts before him the EJ was also entitled to conclude that the separate claim of unfair dismissal had no reasonable prospect of success.

Disposal
22.	It follows, in my judgment, that this is one of those rare cases where the facts were not materially in dispute so that a full hearing before ET was not necessary for the purposes identified in Anyanwu, Ezsias and Tayside.  On the undisputed facts the EJ was entitled to conclude that there were no adjustments which the Respondent could reasonably be expected to make in order to facilitate the Claimant’s return to work and that, having obtained medical advice and consulted fully with the Claimant, who did not disagree with the medical opinion, the Respondent could not reasonably be expected to wait any longer after 15 months sick absence in circumstances where no timescale for a return to work was proffered by Dr Mason.  The EJ was therefore entitled to strike-out all three claims brought by the Claimant.  In doing so he has not been shown to have fallen into error as a matter of law.  It follows that this appeal fails and is dismissed.