Appeal No. UKEAT/0200/13/BA

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

	At the Tribunal
	On 29 & 30 May 2014
	   Judgment handed down on 12 June 2014

Before
HIS HONOUR JUDGE SHANKS
MS G MILLS CBE
MISS S M WILSON CBE

DR R ISLAM	APPELLANT

ABERTAWE BRO MORGANNWG LOCAL HEALTH BOARD 	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	DR R ISLAM
(The Appellant in Person)	
For the Respondent	MR G POWELL
(of Counsel)
Instructed by:
Morgan Cole LLP
Llys Tawe
Kings Road
Swansea
SA1 8PG	

SUMMARY
DISABILITY DISCRIMINATION ACT – Justification
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

C was a consultant psychiatrist.  A report by the National Clinical Assessment Service identified clinical and communication deficiencies and recommended that the C and his employing Trust agree a remediation programme to enable him to retrain for his consultant position.  Such a programme was never put into effect and the employer eventually offered him a sub-consultant’s post or said that he would be given contractual notice.  Meanwhile he was diagnosed as having Asperger’s Syndrome, which was agreed to be a disability.  The disability was linked to the communication deficiencies but not the clinical deficiencies.  In the circumstances, refusing to allow C to return to work as a consultant was not disability discrimination under section 15 Equality Act 2010 because it was a proportionate means of achieving a legitimate aim, i.e. protecting patients; nor was it a breach of the duty to make reasonable adjustments, since any reasonable adjustments relating to the Asperger’s Syndrome would not deal with the clinical deficiencies and would not therefore allow the Trust to employ him as a consultant.

In finding the Trust liable for arrears of pay under section 13 ERA 1996 the Employment Tribunal had proceeded unfairly because the C had not pursued such a claim and, although it was open to the ET to consider it, they had not given the Trust sufficient notice that they intended to consider it on the merits.

HIS HONOUR JUDGE SHANKS
Introduction
1.	We have heard an appeal and a cross-appeal against the judgment of the Cardiff ET sent to the parties on 10 January 2013.  The judgment followed a nine day hearing in October and November 2012.  The ET dismissed Dr Islam’s outstanding claims for unfair dismissal and disability discrimination and found the Respondent Trust liable for unlawful deduction of wages under section 13 of the Employment Rights Act 1996.  On the sift Dr Islam was allowed to pursue an appeal only in relation to disability discrimination on the grounds set out in paragraph 2 of his Notice of Appeal.  The cross-appeal against the section 13 award was also allowed to proceed.
   
Facts
2.	We summarise the facts as briefly as possible, concentrating on those relevant to the appeal and cross-appeal, while acknowledging the very full and thorough fact-finding job done by the ET.

3.	Dr Islam was born in 1955.  He qualified in psychiatry in his native Bangladesh.  On 1 April 2003 he took up a post as a consultant psychiatrist with the Respondent (which we will describe as the Trust) under a contract of employment dated 16 October 2002.  

4.	Concerns were expressed from an early stage about his practice and competence, in particular relating to his communication with others.  In 2008 he agreed to a process under which the National Clinical Assessment Service (NCAS) would assess him and make recommendations.  The NCAS process is designed to be a co-operative one and to provide an alternative to the detailed contractual provisions relating to professional competence.

5.	NCAS’s final report was produced in April 2009.  It was 63 pages long.  The conclusions were set out at some length by the ET: Dr Islam’s performance was inconsistent in diagnosis, clinical management, prescribing, communication with patients, sharing information with colleagues and audit and his record-keeping was described as poor.  The ET found that on reading the report the Trust was entitled to conclude that Dr Islam’s clinical practice was deficient.  The recommendations in the report were that Dr Islam should work with the Trust to devise and agree an action plan with clear objectives and goals and a time-table, a process which NCAS could support; a comprehensive range of interventions would be required to ensure that Dr Islam had the best chance of reassuring the Trust that he was able to fulfil his existing job; these would include working with a clinical supervisor to support development of clinical skills, working with a behavioural coach to address non-clinical recommendations and specialist input in relation to communication skills. 

6.	There was a meeting on 6 May 2009 between Dr Islam and Dr Williams, the Clinical Director of the Trust’s Mental Health Directorate, to consider the NCAS report.  Two main options were discussed: the development (or remediation) route involving an external placement with targets and monitoring which, if successful, would result in Dr Islam returning to his role as a consultant psychiatrist; alternatively, if that route proved unsuccessful, Dr Islam would have to be placed on a different clinical role with the Trust at a sub-consultant level.  

7.	Despite some efforts on the Trust’s part, the remediation programme contemplated by the NCAS report was not put in place over the next two years and relations between Dr Islam and the Trust deteriorated.  For a period Dr Islam did not work and for a period he worked in the Trust’s Caswell Clinic under the supervision of a Dr Hillier.  By May 2011 he was indicating that he did not wish NCAS to be involved further and that he considered their report mistaken in certain unspecified respects.

8.	On 20 July 2011 in a letter to the Trust Dr Islam stated that he had seen a consultant who had “… identified issues which NCAS report failed to identify (and should have identified at the time) and such disability will form part of my claim”.  The letter did not identify the nature or affect of the “disability”.  

9.	On 25 July 2011 Dr Islam went off sick with workplace stress and depression.  He did not come back to work again.

10.	In a letter to the Trust’s Chief Executive on 6 September 2011 Dr Islam enclosed a letter from his GP which referred to a report from a specialist consultant and stated that Dr Islam had “mild but significant … Asperger’s Syndrome with impaired non-verbal Communication … [and] difficulty empathising with others”.  The consultant’s report itself was not enclosed with Dr Islam’s letter.  Dr Islam’s letter criticised the NCAS findings (in effect for failing to identify the Asperger’s) and the Trust for trying to implement their report and stated that he was willing to enter into a compromise agreement for a sum that properly reflected the value of his claims or the matter would end up with high profile litigation.

11.	During the next few months, Dr Islam failed to provide a copy of the consultant’s report despite requests from the Trust and failed to co-operate by seeing Occupational Health.  The ET found that he was being deliberately obstructive because he believed he ought to be returned to the role of consultant psychiatrist and that he believed that the deficiencies recorded by NCAS arose entirely from the Asperger’s and that his clinical abilities were not in any way deficient.

12.	Given the continuing deadlock and the Trust’s financial position (although not working in any capacity Dr Islam was still being paid a consultant’s full salary at this stage) a decision was taken to make a formal specific offer to him.  By a letter dated 31 January 2012 the Trust offered Dr Islam a sub-consultant speciality doctor post from 28 February 2012 with salary protection for 12 months.  The offer was said to be open till 28 February 2012 and, if not accepted, Dr Islam would be given six months notice of termination in accordance with his contract.  The letter repeated that the NCAS report had concluded that he was not performing at the level expected of a consultant psychiatrist, that he needed an extensive period of remediation which had not taken place and that he could therefore no longer be employed as a consultant psychiatrist. 

13.	Dr Islam did not respond positively to that offer and on 6 March 2012 he was given notice of termination of his contract.  It was later clarified that the notice would expire on 14 September 2012.

14.	On 12 March 2012 Dr Islam provided the Trust with a “statement of fitness for work” signed by his GP which stated: “Mr (sic) Islam has disclosed his disability to his employer.  Please arrange an assessment in this regard and following this, in my opinion, he would be able to return to work in his contracted post”.  The ET found at paragraph 69 of the judgment that, although Dr Islam maintained that because his GP had said he was fit to return to work as a consultant he was entitled to do so, he did not genuinely believe that that was so and was using the statement in pursuit of his agenda of seeking to return to work as a consultant.  The ET also found that the Trust reasonably concluded that although Dr Islam was medically fit to return to work as a consultant, he was not professionally fit to do so (our emphasis) and so was not able to do so; while fit to return to some work, the only work on offer was as a sub-consultant and he was unwilling to undertake that work.

15.	Dr Islam finally attended an Occupational Health appointment with Dr Tidley on 6 June 2012.  Dr Tidley was provided with specialist reports from Dr Tantam (Dr Islam’s consultant psychiatrist) based on assessments carried out on Dr Islam in May 2011 and April 2012 in relation to the Asperger’s.  In a report dated 8 June 2012 he concluded that Dr Islam was “…fit, from a health perspective, to work/practise as a Consultant Psychiatrist providing my recommendations below are implemented”.  The recommendations, which he said were given in the context of the Equality Act duty to make reasonable adjustments, were that there should be a high degree of structure and regularity in his job plan and that he should be provided with a mentor and written communications used more than oral ones with a supportive team and the capacity to ensure that there was a balance between his workload and time.

16.	Dr Tidley’s report was provided to the Trust on 25 June 2012.  The Trust’s view was that there had been no significant change of circumstances because there was no apparent connection between the disability and the clinical deficiencies identified by the NCAS report and that the notice of termination should remain in place.  The Trust wrote to Dr Islam on 11 July 2012 inviting him to return to work for the balance of the notice period as a sub-consultant specialty doctor.   He did not do so and, because he was absent from work, he was not paid anything at all for the last three months of his employment.  His employment ended on 14 September 2012.

17.	In the meantime, Dr Islam had started claims in the ET on 3 February and 30 May 2012, alleging disability, race and religious discrimination, unfair dismissal, arrears of pay, and “other complaints.”  In due course it was either agreed or decided by the ET before the substantive hearing (a) that he was indeed disabled with Asperger’s Syndrome, (b) that the Trust knew about this from 7 September 2011, but (c) that he could not rely on any alleged disability discrimination pre-dating 14 November 2011.  The hearing of his extant claims took place, as we have said, in October and November 2012.  We are concerned only with the ET’s findings in relation to disability discrimination and arrears of pay.

Disability discrimination 
18.	Dr Islam made claims under both sections 15 and 20/21 of the Equality Act 2010.  The relevant provisions are as follows:

“15(1) A person (A) discriminates against a disabled person (B) if –
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and 
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
…
20 …
(3) The first requirement is a requirement, where a provision, criterion or practice of A’s 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.
…
21(1) A failure to comply with the first … requirement is a failure to comply with the duty to make reasonable adjustments.
(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.
…
39…
(2) An employer (A) must not discriminate against an employee of A’s (B) –
…
(d) by subjecting B to any … detriment.”

19.	The disability discrimination claims are dealt with by the ET at paragraph 87 of the judgment.  Although that paragraph could no doubt have been better expressed, the ET’s analysis seems to us clear enough.  The ET identified Dr Islam’s “major complaint” as being that he was prevented from returning to work as a consultant psychiatrist at a time when the Trust was aware of his disability; he confirmed at our hearing that that was indeed his major complaint and it is clear that it was in effect the source of the other complaints identified by the ET in paragraph 87.  The complaint was clearly factually correct (at least after 12 March 2012) and it was obviously potentially a “detriment” for the purposes of section 39(2)(d).

20.	On the claim under section 15, the ET accepted that Dr Islam’s Asperger’s Syndrome was the cause of his communication difficulties which themselves gave rise at least in part to the conclusions and recommendations in the NCAS report which led to the unfavourable treatment of being prevented from working as a consultant.  Thus they were prepared to accept that section 15(1)(a) was satisfied.  They therefore turned to consider section 15(1)(b).  They found that the Trust clearly had a “legitimate aim” in what it was doing, namely protecting patients.  They therefore had to decide whether preventing Dr Islam acting as a consultant psychiatrist was a “proportionate means” of achieving that aim.  Given that the Trust had evidence of clinical deficiencies on the part of Dr Islam which they could reasonably conclude posed a potential danger to patients and that the Trust had no basis at that stage for concluding that the clinical deficiencies were related to Dr Islam’s disability, the ET found that excluding him from practising as a consultant was indeed a proportionate means of protecting patients.  

21.	On the “reasonable adjustments” claim under sections 20/21, the ET were prepared to accept that the requirement that a consultant fulfil his role without exhibiting the deficiencies identified in the NCAS report did amount to a “PCP” for the purposes of section 20(3).     They accepted that some of the deficiencies, such as those relating to communication, arose from the Asperger’s and that Dr Islam was therefore put at a disadvantage in relation to them by his disability.  The ET was prepared to accept (without finding) that the adjustments proposed by Dr Tidley and Dr Tantam would alleviate that disadvantage.  They found, however, that it would not have been reasonable for the Trust to have made those adjustments for the simple reason that Dr Islam’s clinical deficiencies, which were not on the evidence connected with his disability, would have prevented him working as a consultant in any event.

22.	The ET’s analysis and conclusions described above are, in our view, based on factual findings for which there was ample evidence and disclose no error of law; none of the points made at paragraphs 2(b), (c), (d), (e) or (f) of Dr Islam’s Notice of Appeal undermine that view.

23.	Dr Islam’s primary point on the appeal (paragraph 2(a)) was that the ET failed to consider whether it might have been a reasonable adjustment to transfer him to a more senior position.  Although in correspondence with the Trust he had referred to the case of Archibald v Fife Council [2004] UKHL 32, where (albeit in very different circumstances) such a solution was said to be potentially a reasonable adjustment, it is clear that (perhaps unsurprisingly) no such position was raised in cross-examination or otherwise put forward or identified during the ET hearing.  In those circumstances we cannot see that the ET’s failure to consider the matter can possibly amount to an error of law.

24.	He also maintained in effect that it was perverse to conclude that his clinical deficiencies really represented a danger to the public if he was acting as a consultant because, if they did, they would equally have prevented him from acting in a sub-consultant post (para 2(g) of the Notice of Appeal).  Mr Powell demonstrated that there was a wealth of evidence to support the view that Dr Islam could safely perform as a psychiatrist as long as he was in a supervised post, i.e. not a consultant; that is confirmed by the finding of the Interim Orders Panel of the Medical Practitioners Tribunal Service dated 31 August 2012 (which was before the ET) which ordered that Dr Islam “… must confine his medical practice to posts in psychiatry where his work will be supervised by a named medical practitioner of consultant grade”.  In any event, as Mr Powell pointed out, the logical conclusion of Dr Islam’s argument would have been that he should not have been allowed to practise psychiatry at all, rather than that he should have been allowed to practise as a consultant.

25.	At paragraph 2(h) of the Notice of Appeal, Dr Islam attacks the finding of the ET at paragraph 87.5 to the effect that requiring him to attend Occupational Health was not unfavourable treatment for the purposes of section 15(1)(a) of the Equality Act: that was a finding of fact for which there were ample grounds.  Paragraph 2(i) of the Notice of Appeal appears to be based on a misreading of the ET’s decision at paragraph 87.5.2: Dr Islam is not being blamed for not taking responsibility for his stress; all the ET is doing is explaining why it was necessary for him to be referred to Occupational Health in connection with the stress he was apparently suffering.  

26.	Paragraph 2(i) of the Notice of Appeal states that by not properly applying sections 15 and 20 of the Equality Act the ET had erred in law in dismissing Dr Islam’s wages claim under Meikle (Nottinghamshire CC v Meikle (CA 8.7.04)).  Such a claim is by definition contingent on a finding of disability discrimination which prevents an employee earning remuneration; the ET having found there was no disability discrimination, it was bound to fail.
 
27.	In argument Dr Islam also raised three further points that did not appear to be raised by his Notice of Appeal or to have been raised before the ET, at least in relation to disability discrimination, and which in any event did not in our view assist him.  He said a reasonable adjustment would have been for him to continue as a “supervised consultant”: that would appear to be a contradiction in terms.  He said that the Trust ought to have activated the contractual professional competence procedure rather than proceeding as they did: we have recorded that he agreed to the NCAS process at the outset and note that this complaint was rejected by the ET in the context of the unfair dismissal claim; in any event, it does not appear to raise any discrimination issue.  He said that the Trust ought to have invited NCAS to review their report in the light of the Asperger’s diagnosis: as we have recorded Dr Islam was indicating by May 2011 that he did not wish NCAS to have any further involvement and, in any event, as we have said a number of times, the evidence was that the clinical deficiencies identified by NCAS were unrelated to the Asperger’s.

Arrears of pay
28.	The one claim which the ET upheld was a claim for contractual remuneration between 12 March 2012 and the date of Dr Islam’s dismissal on 14 September 2012 (see paragraph 89 of the judgment).  It was based on the proposition that from 12 March 2012 he was certified “fit for work” and was ready and willing to work as a consultant and that he was therefore entitled to be paid in full for that period.  We referred to this as the “Wages Act claim” throughout our hearing.

29.	Although the Wages Act claim came within the terms of the Claimant’s ET1s and the list of issues for the ET (paragraph 1.13 of the judgment), it is quite clear that it was not pursued by Dr Islam at the hearing (see: paragraph 86 of the judgment), even though, as Mr Powell demonstrated, there were opportunities presented to him to do so.  The only analogous claim which he did choose to pursue was Meikle claim which, as we have said, failed because it was dependent on a finding of disability discrimination.  However, the ET took the view that as the facts they found raised the Wages Act claim they were obliged to consider it.  As recorded at paragraph 86.2 of the judgment, the ET raised the issue of whether such a claim could be argued with Mr Powell during his closing oral submissions.  His response was simply to say that the claim had been put solely on the Meikle basis and the ET left it at that; we accept that he mistakenly understood that the ET had accepted the proposition that no Wages Act claim had been advanced and that he reasonably formed the view he did not need to deal with it further.

30.	Given that it was covered by the ET1s and the list of issues and that Dr Islam was a self represented litigant, we think that it was open to the ET to consider the Wages Act claim if they saw fit although it was not pursued as such by Dr Islam at the hearing.   However, we agree with Mr Powell that in the circumstances of the case it was unfair to his clients for the ET to proceed to consider the claim on its merits without making it clear to that they intended to do so and giving him an opportunity to make full submissions on the merits and (possibly) to call  further evidence.  It was not sufficient in our view simply to raise the matter en passant during final submissions or reasonable to assume in the light of his answer that he was making a deliberate decision not to raise any arguments on the merits of the proposed claim.  We are therefore satisfied that the ET made a procedural error of law in their approach to the Wages Act claim.  

31.	Mr Powell also submitted that the ET had made a number of substantive errors of law on the Wages Act claim.  First, he reminded us that in order to earn remuneration under his contract of employment Dr Islam had to be “ready, willing and able” to work as a consultant, but, he said, the clinical deficiencies identified by NCAS meant that he was unable to do so, and it was not enough that he was medically fit to do so.  Alternatively, Mr Powell submitted that, on a proper construction of his contract of employment, the Trust was entitled to require Dr Islam to work temporarily in a sub-consultant post, so that on the facts he was not even “ready and willing” to carry out his contractual work during the notice period.  He also submitted that, on a proper construction of the doctor’s certificate of 12 March 2012 and in the light of subsequent events, Dr Islam was not even medically fit to work until 25 June 2012, when Dr Tidley, the occupational health physician, certified him as such.  

32.	Mr Powell went on to suggest that, the ET having made all necessary findings of fact, it was open to this Tribunal to dismiss (or possibly reduce) the Wages Act claim on one of those grounds and that there was therefore no need to remit it to the ET.  Although we consider Mr Powell’s substantive grounds of appeal to be arguable, we think that there may be answers to each of them and, further, that there may be scope for further evidence in relation to the Wages Act claim.  We are therefore of the view that the right course is to allow the cross-appeal on the basis that the procedure adopted by the ET was not fair to Mr Powell’s clients and to remit the Wages Act claim to the same ET to consider it afresh on the merits in the light of full argument and further evidence if they think appropriate.  Save for those set out in paragraph 69 (which deals with the effect of the 12 March 2012 certificate) and paragraph 89, the findings of fact in the ET’s judgment will stand.

Disposal
33.	The appeal is dismissed.  The cross-appeal is allowed and the Wages Act claim is remitted to the same ET on the basis we set out above.