Appeal No. UKEAT/0090/12/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At
the Tribunal
On
30 January 2013
Judgment handed down on 9 May 2013
Before
HIS
HONOUR JUDGE PETER CLARK
MS K BILGAN
MR S YEBOAH
REDCAR
AND CLEVELAND PRIMARY CARE TRUST APPELLANT
MISS R LONSDALE RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
Employment Tribunal finding of failure to make reasonable
adjustment and unfair dismissal upheld. Claimant’s cross-appeal against
finding that dismissal was not discriminatory also upheld.
HIS HONOUR JUDGE PETER CLARK
Introduction
1.
We have before us for full hearing an appeal by the Respondent, Redcar and Cleveland PCT and a cross-appeal by the Claimant, Miss Lonsdale against the
Judgment of an Employment Tribunal chaired by Employment Judge Wade and sitting
at North Shields on 3-6 October 2011. That Judgment was promulgated with
reasons on 3 November 2011.
The facts
2.
The Claimant commenced the relevant period of continuous employment with
the Respondent or its predecessor on 1 January 2008 as a Senior Occupational Therapist
on band 6.
3.
In August 2008 she suffered a significant deterioration in her vision.
On 29 December 2008 an Occupational Health assessment concluded that she could
not, as a result of her visual impairment, continue in her existing role;
redeployment to a suitable role was recommended. The only suitable alternative
was a band 4 post as Workforce Development Co-ordinator. The Claimant
commenced a trial in the alternative band 4 role on 16 February 2009 with the
benefit of various adjustments at a cost to the Respondent of £6,000. She was
confirmed in the role on 1 June 2009 having applied unsuccessfully for a band 6
role in May and then a different band 4 role in June. Her visual disability
precluded her from patient interaction. It is common ground that she was
disabled for the purpose of the Equality Act 2010.
4.
In the summer of 2010 the Respondent embarked on a genuine restructuring
exercise involving the deletion of posts. By letter dated 10 August 2010 the
Claimant was notified that her post of Workforce Development Co-ordinator was
at risk of redundancy. It was one of 30 posts at risk. A process of
consultation commenced on 16 August.
5.
The Respondent adopted an HR Framework to deal with possible
redeployment of those employees occupying posts at risk. At stage 1 staff
whose posts were to be eliminated could apply for up to 5 posts at their
present grade (in the Claimant’s case, band 4) or one post at one grade above
but no higher. The Claimant was thus limited to applying for one band 5 post.
At stage 2, staff could apply for any post in competition with their
colleagues.
6.
At stage 1 the first step was slotting in, without competition, where
there was a close match between the new and old posts. Next were posts where
the candidate had the required skills for and could be considered without
competition; thirdly, where there was more than one candidate with the required
skills, competitive interviews would take place.
7.
The Claimant’s position was that at stage 1 she was prevented from applying
for the role of Staff and Patient Safety under the HR Framework because it was
at band 6, two grades above her present post, although on the same level at
which she had joined the Respondent prior to the onset of her disability.
8.
Having considered the Claimant’s representations the Respondent, through
Ms Tempest, declined to permit her to apply for the band 6 Staff and Patient Safety
role, citing the HR Framework which ‘had been impact assessed to ensure that
there are no adverse effects resulting from any of the protected
characteristics covered by the Equality Act’.
9.
The ET considered the Respondent’s impact assessment (paras. 14-16) and
noted the Respondent’s acknowledgement of the fact that there was a
responsibility to take account of disabled peoples’ disabilities even where
that involves treating them more favourably than others. However, Mr Gilligan,
who chaired the panel which ultimately dismissed the Claimant, despite his
diversity training and 30 years experience in clinical practice, believed that
there was no duty to treat disabled people more favourably in a redundancy
situation as the HR Framework acknowledged. He had never come across a
registered blind person (as was the Claimant) in a clinical post.
10.
On 15 November 2010 the Claimant was given notice of dismissal, that
notice expiring, following an extension, on 31 December.
11.
On 20 November the Claimant appealed against her dismissal. On 23
November she expressed interest in the band 6 Patient and Staff Safety role.
On 29 November a colleague, then a band 6 HR Adviser, also expressed interest
in that role. That person also suffered from a disability, which affected her
driving intermittently. The ET found (para. 19) that her expression of
interest form was, on the face of it, completed more comprehensively than was
the Claimant’s.
12.
An appeal hearing before a panel chaired by Ms Tempest took place on 30
November. At that meeting the panel concluded that the Claimant could not be
allowed to apply at stage 1 for the Patient Safety role, whilst finding that
she appeared to demonstrate some of the relevant skills and competencies. She
could apply at stage 2 if it remained unfilled. In the event it was filled at
stage 1 by the former HR Adviser following consideration by a matching panel which
also concluded, informally, that the Claimant did not meet the essential
criteria for the role. The reason for that view was never explained (reasons,
para. 20). The Claimant’s appeal was dismissed. Her employment ended on
expiry of her notice on 31 December 2010.
13.
By her claim form ET1 presented to the ET on 14 February 2011 the
Claimant complained of disability discrimination and unfair dismissal. All
claims were resisted by the Respondent.
The ET decision
14.
The ET held that the Respondent had failed to make a reasonable
adjustment by permitting the Claimant to apply for the band 6 Patient and
Safety role, allowing her to compete with the other (successful) candidate at
stage 1 of the restructuring process. They did not consider that slotting the
Claimant into that role was a reasonable adjustment. The dismissal was by
reason of redundancy and was unfair for the reasons given at para. 39.
However, the dismissal was not itself an act of discrimination arising from her
disability (see para. 40). A remedy hearing has yet to take place.
The appeal and cross-appeal
15.
The Respondent appeals the ET’s findings both as to its failure to make
a reasonable adjustment and unfair dismissal. The Claimant challenges the
finding at para. 40 that her dismissal was not discriminatory by way of her
cross-appeal. It is convenient to take those three issues in the following
order: (1) reasonable adjustments (2) disability dismissal (3) unfair
dismissal.
Reasonable adjustments
16.
The statutory duty to make reasonable adjustments is now contained in
s.20 Equality Act 2010. The first requirement (s.20(3)) is a
requirement, where a provision, criterion or practice (PCP) of (here, the
Respondent) 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 take to avoid the disadvantage.
17.
Section 20(3) EqA re-enacts the former s.4A Disability Discrimination
Act 1995, as amended and so the old case law remains relevant when
construing the s.20(3) duty.
18.
In Environment Agency v Rowan [2008] IRLR 20, para. 27 the
EAT (HHJ Serota QC presiding) indicated that in considering an alleged breach
of the s.4A duty an ET must identify:
(a) the PCP applied by or on behalf of the
employer
…
(c) the identity of non-disabled comparators (where
appropriate) and
(d) the nature and extent of the substantial
disadvantage suffered by the Claimant.
19.
Ms Nolan does not challenge the ET’s finding that here the relevant PCP
was the prohibition under the HR Framework on staff at risk of redundancy
applying for posts more than one grade above their current banding, thereby
precluding the Claimant from applying for the band 6 Patient and Staff Safety
role. However, she submits that the ET fell into error, first in failing to
identify a non-disabled comparator and secondly in failing to make a finding as
to how the PCP put the Claimant at a substantial disadvantage.
20.
Taking the comparator point first, we emphasise the words ‘where
appropriate’ in the Rowan formulation of the appropriate test.
We agree with Mr Mugliston, by reference to the observations of Cox J in Fareham College v Walters [2009] IRLR 991,
particularly paras. 56, 58, that a like for like comparison is not appropriate
on the facts of this case. Secondly, the substantial disadvantage suffered by
this Claimant lay in the fact that, as a direct result of the onset of her
visual impairment, she was redeployed from a band 6 to a band 4 post in 2009.
That is why she was precluded from applying for the band 6 Staff and Patient
Safety role at stage 1 under the HR Framework. We do not accept that that
redeployment was ‘too remote’ as the ET thought in relation to discriminatory
dismissal (para. 40) when considering the duty to make adjustments. Had she
not become disabled she would have remained in her original band 6 post and,
had that been at risk, would have been eligible to compete with the successful
candidate for the Safety role. Instead, she was disadvantaged by not being able
to apply for that alternative role. As to whether allowing her to compete for
that post was a reasonable adjustment, the ET took into account the
Respondent’s desire to treat all staff equally under the HR Framework, but that
overlooks the Respondent’s own acknowledgement that sometimes disabled people
must be treated more favourably than those who are not disabled, the principle
established in Archibald v Fife Council [2004] IRLR 651 (HL). In
all the circumstances it was not unreasonable to make an exception under the HR
Framework to allow for the Claimant’s disability and its consequences.
21.
Accordingly, we uphold the ET’s finding of a failure to make a
reasonable adjustment in this respect. In doing so we have not overlooked Ms
Nolan’s complaint that the ET made no finding that the Claimant would have been
successful in applying for the Safety role. We have earlier noted the ET’s
finding at para. 20 that although the matching panel informally formed the view
that the Claimant did not meet the essential criteria for the role, no
explanation was given for that finding. Thus no definite answer to the
question, would the Claimant have been successful, was possible on the state of
the evidence before the ET. It is now well established in EAT authority (see
the cases listed in Harvey, vol 2, L402) that it is enough that there
was a real prospect, as I put it in Romec v Rudham [2007] ALL ER
(D) 2010, of the adjustment removing the disadvantage suffered by the Claimant
as a result of her disability. That was effectively the ET’s finding at para.
34. Further, it seems to us that the loss of a chance of successfully applying
for the Safety post may properly be reflected in the assessment of loss arising
from the failure to make the relevant adjustment at the remedy stage in the
same way that the loss of a chance falls to be assessed under the Polkey
principle when assessing the compensatory award for unfair dismissal (see
below).
Discriminatory dismissal
22.
Mr Mugliston makes a short and telling point in relation to the ET’s
reasons for dismissing this part of the claim at para. 40. The ET there appear
to be addressing again (see para. 37) the claim under s.15 EqA whereas, having
found a breach of the duty under s.20 the ET was bound to go on to conclude
that the dismissal was inextricably linked with the failure to make that
adjustment and was therefore an act of discrimination contrary to s.39(2)(c).
23.
We accept that submission. Ms Nolan points to the ET’s finding that the
reason (or, we would add, principal reason) for dismissal for the purposes of
the unfair dismissal claim was redundancy. It follows, she submits, that the
ET was entitled to conclude that the dismissal was not discriminatory.
However, the reason or principal reason for dismissal under s.98 ERA
does not preclude there being a discriminatory element amounting to a
significant factor in the dismissal. Here, the failure to allow the Claimant
to apply for the Safety post meant that her dismissal by reason of redundancy
was inevitable. That is sufficient to amount to a discriminatory dismissal
under s.20(3) read with s.39(2)(c) EqA.
24.
It follows that we shall allow the Claimant’s cross-appeal.
Unfair dismissal
25.
It follows from what has gone before that we reject the Respondent’s
appeal against the finding of unfair dismissal. We accept the ET’s findings as
to unfairness of the dismissal by reason of redundancy at para. 39. In
addition, as we have concluded, the failure to make an adjustment by permitting
the Claimant to apply for the Safety post, itself leading to a discriminatory
dismissal, added to its unfairness. We repeat, the loss of a chance of
obtaining that post is a factor to be considered in the calculation of the
compensatory award at the remedy stage.
Disposal
26.
The Respondent’s appeal is dismissed.
27.
The Claimant’s cross-appeal is allowed. The matter will now return to
the same ET for the assessment of compensation for disability discrimination,
including discriminatory dismissal as explained above and unfair dismissal,
ensuring that there is no double-counting in the two assessment exercises.
