Appeal No. UKEAT/0307/15/DM

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

	At the Tribunal
	On 18 February 2016

Before
THE RIGHT HONOURABLE LORD JUSTICE RYDER
(SENIOR PRESIDENT OF TRIBUNALS)
(SITTING ALONE)

MISS S NDEBELE	APPELLANT

KASTERLEE UK LIMITED & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR MARK GREEN
(of Counsel)
Bar Pro Bono Scheme	
For the Respondents	MR RICHARD REES
(Representative)

SUMMARY
DISABILITY DISCRIMINATION - Compensation
HARRASSMENT - Compensation

Whether the Employment Tribunal had erred in law by not asking itself the question whether the Claimant had not returned to work because the Respondents had failed to provide her with reasonable adjustments.

THE RIGHT HONOURABLE LORD JUSTICE RYDER

1.	This is an appeal against the remedy granted to the Claimant, Miss Sylvia Ndebele, against the Respondent, Kasterlee UK Ltd (her employer) and others.  The relevant Judgment and Order made were entered in the register on 20 March 2015, following a hearing at the London (South) Employment Tribunal on 16 March 2015, and the Notice of Appeal was filed on 24 April 2015.  On 14 October 2015 the then President, Langstaff J, allowed the appeal to proceed to a Full Hearing for the following reasons:
“The ET may not have considered whether the reason for the Claimant not putting herself up for work in January and February 2014 was because she had been told that the Respondents would not make any adjustment for her disability, and it would be risking further injury [to] her back to do so.  The principle must be that the victim of a tort is entitled to be placed so far as money can achieve it in the position she would have been had the tort not occurred.
See, generally, Meikle v Nottingham CC [[2004] EWCA Civ 859; [2004] IRLR 703].
This may, of course, depend on whether the point was raised below … hence my request to the parties to try and agree any relevant evidence and submissions.”

2.	The background facts as found by the Employment Tribunal are helpfully set out without any adverse commentary from the Respondent in the skeleton argument of the Claimant.  They are as follows.  The Claimant was disabled by reason of mechanical back and shoulder pain and depression and anxiety.  She was a chef de partie working for the Respondent.  It was a fundamental part of that role that she was required to carry heavy objects.  Her general practitioner recommended to her employer that she did not do any heavy lifting nor move heavy loads.  On 11 March 2013 the First Respondent’s employee Mr Bailey wrote to the Claimant making it clear that the First Respondent would not be able to accommodate the general practitioner’s recommendations.  There was a provision, criterion or practice (“PCP”) that the Claimant was required to carry heavy objects.  The Respondent did not make sufficient efforts to assist the Claimant in preventing or minimising the disadvantage caused by the PCP.  There was therefore a failure to make reasonable adjustments.
3.	The Claimant’s claim of indirect discrimination also succeeded, as the Employment Tribunal did not accept as a legitimate aim the fact that the carrying of heavy objects was an inherent part of the role.  The Claimant was also harassed, under section 26 of the Equality Act 2010, by Mr Bailey calling her a troublemaker.  The Claimant was victimised by Mr Rodrigues and deprived of two shifts in October 2013 as a result of bringing the Tribunal claim.  At the remedy hearing the Employment Tribunal found that there was no evidence to the effect that the Claimant was prevented from working after 2 January 2014 as she could not expect to be offered work because she had not notified her employer that she was available for work.

4.	The grounds of appeal are as follows: (1) the Employment Tribunal erred in law by failing to direct itself to calculate the losses flowing from the original act of discrimination (that is, the refusal to make reasonable adjustments); and (2) the Employment Tribunal erred in law in failing to take into account why the Claimant could not put herself forward for work when that was necessary in order that its judgment might properly be exercised.

5.	The Respondents in reply rely on a finding of fact made by the Employment Tribunal that no loss was proved by the Claimant after 2 January 2014 because she did not request work from her employer after that date.  Unhelpfully, the Respondent characterised the first ground of appeal as a new issue not raised in the Employment Tribunal: that is, unfitness for work as a consequence of discrimination.  As appears from any informed analysis of the liability and remedy Judgments of the Employment Tribunal, that is simply a plea of avoidance.  The question that the Employment Tribunal had to consider was whether the reason for not asking for work was because the Claimant had been told that the Respondent would not be making any reasonable adjustments for her disability and it would be risking further injury to her back to do so in the absence of such adjustments.  The simple point in the appeal is as to whether there was an error of law in whether that question was asked.

6.	To answer that question, one needs to go to paragraph 13 of the Remedy Judgment.  The Employment Tribunal found as follows:
“13. The Claimant alleges that she was prevented from working from 2 January 2014 onwards.  There was no evidence to that effect.  After that date the Claimant did not notify the Respondent that she wished to work.  We recorded in the reasons for our first judgment such history as was available to us of the Claimant previously notifying the Respondent from time to time of days and times when she would be available for work.  She ceased to provide the Respondent with that information.  The Claimant can hardly complain about not being offered work if she did not notify the Respondent that she was available for work.  She was certainly not prevented from working as stated in the schedule.”

7.	It is the submission both of Mr Green, on behalf of the Claimant, and Mr Rees, on behalf of the Respondents, that that is the pertinent paragraph that evidences the reasoning of the Employment Tribunal.

8.	The President directed informally an agreement be come to as to the evidence and submissions that were heard by the Employment Tribunal on this issue.  That direction was a necessary prequel to this hearing, compliance with which might have avoided the need for the hearing itself.  The Respondent is fortunate that the terms of the direction were informal so that the issue of compliance has not had to be dealt with formally by me.  I am unimpressed by the woeful attitude of the Respondent to the request made by the President.  It would have been entirely within their gift to have obtained proper instructions on the point in issue.

9.	The Respondent in their skeleton for today’s hearing summarise the stark nature of their position as follows (paragraph 3):
“3. … As the Respondent’s [sic] representative in this appeal I am unable to agree any evidence or submissions on this issue as I did not appear below and the Consultant who did appear did left Peninsula in April 2015 (the month after the Remedy hearing).  There are no notes of evidence or written submissions on the file which came to me.”
10.	That is simply not good enough.  Instructions could and should have been taken to lead to a proportionate resolution of the issue in this appeal.  They were not, with the consequence that this Tribunal is left only with paragraph 13 of the Remedy Judgment.  That paragraph is manifestly inadequate, for the reason postulated by the President.  If one applies the elementary case law relating to the recovery of compensation in these Tribunals and in particular Meikle, it is patent that there is no answer to the question posed by the President and the submissions made on the appeal by the Claimant.  Accordingly, I have no doubt that this appeal must succeed.

11.	The Claimant says to this Tribunal that such is the evidence that was before the Employment Tribunal this Tribunal is in no better or worse position than that Tribunal in coming to a conclusion on the facts about the question that should have been asked.  Mr Rees, on behalf of the Respondent, points to the precise terms of paragraph 13 of the Remedy Judgment and says there is no evidence upon which this Tribunal can come to a conclusion on the question and this Tribunal should not usurp the fact finding responsibilities of the Employment Tribunal.  Helpfully, Mr Green refers this Tribunal to the original statement of evidence from the Claimant, which can be found in a witness statement dated 20 February 2015 at pages 127 and 128 of the bundle.  At page 127 Miss Ndebele said:
“… Since the respondent refused to amend my job roles, I felt that returning to work and lift [sic] up heavy objects could result in further and severe problems with my back. …”

At page 128 she says:
“… They have refused to amend my job roles and I felt I could be further subjected to ill-treatment so I decided to start looking for another job. …”

12.	First of all, that graphically demonstrates that there was such evidence before the Employment Tribunal, and it is accordingly surprising, as a matter of professional propriety, that Mr Rees should make the submissions on behalf of the Respondents that he does to this Tribunal.  Secondly, in the absence of the agreed evidence informally directed by the President, there is no contradictory material to the answer that this Claimant gave to the question that the Employment Tribunal should have asked.  I find myself therefore in the advantageous position of having uncontradicted evidence on the question.  The point, quite simply, is this, and I find it on the only evidence that is available: that this Claimant did not return to work on or after 2 January 2014 because her employer had refused to make reasonable adjustments for her disability.  That is a consequential position upon an unlawful act that demands compensation.

13.	Accordingly, I allow the appeal, I make the finding on the proposition requested of me, and, so far as compensation is concerned, I remit the matter to the Employment Tribunal for evidence to be heard on that point and a fresh determination of remedy to be come to.  In light of that circumstance and there being no objection to remission to a fresh Tribunal, and on the basis it is no less proportionate to do so and would have all the advantage that a fresh mind can be brought to bear on the issue that has been determined by this Tribunal, I shall direct that it be remitted to a fresh Tribunal for consideration.