Appeal No. UKEAT/0202/16/BA

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

	At the Tribunal
	On 14 December 2016
	Judgment handed down on 19 January 2017

Before
HIS HONOUR JUDGE PETER CLARK
MR M SIBBALD
MS P TATLOW

THE HOME OFFICE (UK VISAS & IMMIGRATION)	APPELLANT

MS P KURANCHIE	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL & CROSS-APPEAL

APPEARANCES

For the Appellant	MR MICHAEL PAULIN
(of Counsel)
Instructed by:
Government Legal Department
Employment Group
One Kemble Street
London
WC2B 4TS

For the Respondent	MR PAUL LIVINGSTON
(of Counsel)
Bar Pro Bono Scheme

SUMMARY
DISABILITY DISCRIMINATION - Reasonable adjustments
RACE DISCRIMINATION - Direct

The Employment Tribunal’s finding of failure to make a reasonable adjustment upheld.  The employer’s appeal dismissed.  The Claimant’s cross-appeal against the Employment Tribunal’s finding that she had failed to adduce any evidence such as to pass stage one of the Igen test in relation to a complaint of racial discrimination upheld.  That issue was remitted to the same Employment Tribunal for reconsideration.

HIS HONOUR JUDGE PETER CLARK 

Introduction
1.	This matter has been proceeding in the London (South) Employment Tribunal.  The parties are, as we shall describe them, Ms Kuranchie, the Claimant, and the Home Office (UK Visas & Immigration), the Respondent.  By a Reserved Judgment and Reasons dated 13 April 2016 an Employment Tribunal chaired by Employment Judge Baron dismissed the Claimant’s complaints of race and sex discrimination and upheld one complaint of disability discrimination.  Against the disability finding, namely a failure by the Respondent to make a reasonable adjustment contrary to section 20(3) of the Equality Act 2010 by reducing the Claimant’s workload to allow for her admitted disability, namely dyspraxia and dyslexia (“the disability complaint”), the Respondent now appeals.  Against the finding that, in respect of the Claimant’s end of year assessment on or about 26 July 2013, the Respondent had not committed an act of unlawful race discrimination (“the race complaint”) the Claimant cross-appeals.  Both appeal and cross-appeal have been sifted to this all-parties Full Hearing.

Background
2.	The Claimant, who has an excellent educational background (Reasons, paragraph 12), is black and of Ghanaian origin.  She commenced employment with the Respondent in Solihull as a Higher Executive Officer on 24 April 2006.  She then moved to London and was promoted to Senior Executive Officer in June 2007, becoming a Team Leader in April 2011.  She has since acted up as Assistant Director and remains employed by the Respondent.

The Disability Complaint
3.	In February or March 2013 (Reasons, paragraph 23) the Claimant spoke to her then line manager, Mr Wise, about her disability and how the lack of adjustments was causing her to have to work long hours to enable her to get her work done.  In response Mr Wise said he would arrange for specialist equipment and a static desk to be made available after the Claimant moved from the Respondent’s premises at Electric House to Lunar House, both in Croydon.  The Claimant followed that up with an email to Mr Wise dated 17 April 2013 in which she requested a flexible working arrangement whereby she worked compressed hours: that is, a 36-hour week over four, rather than five, days, with either Monday or Friday as her non-working day.  In that email she said that at this stage she believed that the only adjustment required was to work a four-day week with longer hours each day.  That request was approved on 20 May 2013.  

4.	Meanwhile, on 13 May 2013 Mr Nabi took over from Mr Wise as the Claimant’s line manager.  The Employment Tribunal found that a meeting took place between the Claimant and Mr Nabi, probably on 26 July 2013 (paragraph 28) and that at that meeting the Claimant showed Mr Nabi a dyslexia report dated 13 August 2012 without giving him a copy.  At all events the Respondent accepts that she was disabled from 13 August 2012 and that they had the necessary knowledge of her disability from that time, a concession recorded by Employment Judge Zuke at paragraph 10 of his case management Order dated 5 June 2015.  In that same Order, paragraph 12, Employment Judge Zuke identified the relevant complaint in this way:
“12. The Respondent had a provision or practice of giving the Claimant the same volume of work as her colleagues.  This placed her at a substantial disadvantage compared to her non-disabled colleagues because it took her longer to complete the work due to her disabilities.  As a result, she worked longer hours than her colleagues in order to complete the work.  The Respondent should have made the reasonable adjustment of reducing her workload in order to avoid the disadvantage.”

5.	The Respondent acknowledged the complaint, that the Respondent should have made the reasonable adjustment of reducing the Claimant’s workload to avoid the disadvantage placed on the Claimant compared with her non-disabled colleagues of taking longer to complete her work due to her disabilities and thus working longer hours than her colleagues, at paragraph 6 of their Amended Response dated 9 July 2015.

6.	Thus the issue was fairly before the Baron Employment Tribunal, as recorded at paragraph 10(3) of their Reasons.  That Employment Tribunal considered the dyslexia report in some detail (paragraph 74), as have we.  Their findings on the disability complaint are set out at paragraphs 72 to 76.  They found:
(1)	that the relevant PCP was a requirement that the Claimant carried out the same volume of work as her colleagues (paragraph 73);
(2)	that not having a reduced workload involved the Claimant in working extra hours as a result of the effects of her disability (paragraph 74);
(3)	that there was no suggestion by the Respondent that reducing the level of work to some extent would inevitably not be a reasonable adjustment, nor was it in dispute that the Respondent did not seek to reduce the volume of her work (paragraph 76).
In these circumstances, the Employment Tribunal held that the Respondent was in breach of its section 20 duty.

7.	In advancing the Respondent’s appeal Mr Paulin takes two points.  He does not pursue a perversity argument.  He submits that the Employment Tribunal failed to apply the correct legal test when assessing the disability complaint.  What was required was a holistic approach to the question as to whether, given the PCP of a workload similar to able-bodied colleagues and that such a PCP put the Claimant at a substantial disadvantage because she could not complete her workload within normal working hours due to her disability, the Respondent had made reasonable adjustments so as to comply with their section 20(3) duty.  He referred us to the Court of Appeal decision in Paulley v FirstGroup plc [2014] EWCA Civ 1573.  At paragraphs 32 and 61 Underhill LJ cited Finnigan v Chief Constable of Northumbria Police [2014] 1 WLR 445 CA, paragraph 31, for the proposition that the PCP does not include the adjustment(s) contended for.  This Employment Tribunal fell into error by assuming that the answer to the reasonable adjustment simply lay in accepting the remedy suggested.

8.	More generally, he argues that the relevant question is not limited to the adjustment contended for by the Claimant, reduced workload, but also takes into account the adjustments which the Respondent relied on, namely compressed hours, which was provided, and a promise of assistive software after the Claimant moved to Lunar House.  He also points out that neither the dyslexia report nor the Claimant herself suggested a reduced workload during the relevant period between 13 August 2012 and 15 September 2013.

9.	We have considered those submissions and reject them.  Having established the PCP and substantial disadvantage in favour of the Claimant, the critical question is whether the Respondent has taken such steps as is reasonable to have to take to avoid the disadvantage.  We accept that a holistic approach to that question is required; see Burke v The College of Law [2012] EWCA Civ 37, paragraph 33, per Kitchin LJ.  The Employment Tribunal set out the factual chronology, including the introduction of compressed hours (paragraphs 24 and 25), which the Claimant requested because it helped her to be more productive when working over a longer day and, separately, to give her an opportunity to schedule hospital appointments during the working week and the reference to assistive software in the dyslexia report following a Workplace Needs Assessment (paragraphs 21 and 23).

10.	It is clear that these steps did not remove the disadvantage to which the Claimant was put during the relevant period (see paragraph 75).  Thus the critical question here, as in Project Management Institute v Latif [2007] IRLR 579 EAT (Elias P (as he then was) presiding; see paragraph 23), was whether the adjustment identified by Employment Judge Zuke, reduced workload, was a reasonable adjustment.  That it had not been suggested by the Claimant prior to the Employment Tribunal hearing in Latif did not prevent the Tribunal from considering it, as Mr Paulin accepts.  On the facts the Employment Tribunal in Latif was entitled to conclude that the “new” adjustment would have been reasonable and a failure to take that step amounted to a breach of the section 20(3) duty.  We take a similar approach in this case.  Whilst paragraph 76 of the Tribunal’s Reasons may not be felicitously worded, the sense of it is that a reduced workload, absent any effective adjustments to ameliorate the problem faced by the Claimant during the relevant period, would have cured the disadvantage.  The final sentence of paragraph 76 merely records that the Respondent did not contend that such a step had no real prospect of doing so, the test being whether the adjustment had a real prospect removing the disadvantage suffered by the Claimant; see Leeds Teaching Hospital NHS Trust v Foster UKEAT/ 0552/10, Keith J presiding.

The Race Complaint
11.	In direct discrimination cases there is much to commend the “reason why” question formulated by Lord Nicholls; see Nagarajan v London Regional Transport [1999] ICR 877.  Why did the Claimant receive the treatment complained of?  Was it on grounds of her race or for some other, non-discriminatory, reason?
12.	In the present case the relevant race complaint was identified by Employment Judge Zuke at the Preliminary Hearing (see Baron Employment Tribunal Reasons, paragraph 8) in this way:
“On or about 26 July 2013 the Claimant’s end of year assessment was downgraded from the top 20% to the middle 70%.”

13.	The factual matrix, as found by the Employment Tribunal (paragraphs 33 to 36), was that the Respondent carried out an annual personal development review for members of staff.  There are three categories: the top 20 per cent, the next 70 per cent and the final 10 per cent.  An initial assessment is made by the person’s line manager, who then makes a recommendation to a moderation panel.  In the Claimant’s case, for the year 2012/13, her line manager, Mr Gibbs, placed her in the top (20 per cent) category and so recommended to the panel.  In the event the panel, which included Dr Matthew Smith and an independent panel member (“IPM”), Mrs Johnson, placed the Claimant in the middle (70 per cent) category.  It was the Claimant’s primary case that she was downgraded by the panel because of Mrs Johnson’s previous experience of the Claimant as her line manager and because Mrs Johnson had a racist tendency and endorsed racist behaviour (despite being the Equality and Diversity Adviser for the Department; paragraph 35).  Although the Employment Tribunal did not hear from Mrs Johnson (nor any panel member; paragraph 35), they rejected the Claimant’s case on the race complaint.  They were unable to find that anything which occurred in relation to the personal development review was because of the Claimant’s race: “There is simply not the evidence before us” (paragraph 64).

14.	Mr Paulin submits that in reaching that conclusion the Employment Tribunal asked themselves and answered Lord Nicholls’ “reason why” question and did so permissibly.  We are not persuaded that that is the case, nor do we believe that that fully answers the points raised by Mr Livingston.  The approach that the Employment Tribunal took, as they were entitled to do as a matter of law, was the two-stage enquiry set out by the Court of Appeal in Igen Ltd v Wong [2005] ICR 931, since endorsed by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054, following the amendment to the burden of proof.  The first question is whether the Claimant has proved facts from which the Tribunal could conclude that, in the absence of an adequate explanation, the Respondent had committed an act of discrimination against the Claimant that was unlawful; and if so, secondly, has the Respondent provided a non-discriminatory explanation for the less favourable treatment complained of?

15.	In this case, the Employment Tribunal found, unequivocally (see paragraph 63), that this claim failed at stage one.  The Claimant had failed to prove facts from which the Tribunal could “reasonably” conclude that the downgrading was because of her race.  They held that the Claimant simply made assertions but without facts to support those assertions.

16.	Leaving aside the Employment Tribunal’s apparent rejection of the Claimant’s charge of discriminatory racist views levelled at Mrs Johnson, Mr Livingston points to the following features of the case which, he submits, tend to show that stage one of the Igen test is passed so that the burden shifts to the Respondent to provide a non-discriminatory explanation for the panel’s assessment (70 per cent) as opposed to Mr Gibbs’s top 20 per cent recommendation.  First, he refers to the Claimant’s submission below, recorded at paragraph 48, placing reliance on a document prepared by the Permanent Secretary, Mark Sedwill.  In that document, which was in evidence below, Mr Sedwill expressed his concern and that of the Home Office Board that staff who are part-time, disabled or belong to a minority ethnic group are less likely to receive a performance bonus than other staff.  That submission, set out in the Claimant’s written closing argument below, also incorporated a reference to the possibility of unconscious discrimination.

17.	We accept, first, that Tribunals must be alive to the possibility of unconscious (or subconscious) discrimination as well as overt discrimination; see the observations of Kerr J in Geller v Yeshurun Hebrew Congregation UKEAT/0190/15, 23 March 2016, paragraphs 49 and 52.  Secondly, that “statistical” evidence that may tend to show a discernible pattern of treatment by the employer to the Claimant’s racial group from which a Tribunal might infer unlawful discrimination may be relevant to the complaint; see the disclosure case of West Midlands Passenger Transport Executive v Singh [1988] 1 WLR 730 CA.  For an example of a case of direct racial discrimination in which racial statistics were held to be a relevant consideration by the Employment Tribunal see Rihal v London Borough of Ealing [2004] IRLR 642 CA, particularly at paragraphs 52 and 53, per Sedley LJ.

18.	In these circumstances, we are satisfied that it was not open to this Employment Tribunal, taking proper account of the evidence before it, to reject the race complaint at stage one of Igen on the footing that there was no evidence before them which could amount to the “something more” to which Mummery LJ alluded in Madarassy v Nomura International plc [2007] ICR 867 CA, paragraph 56.  The holistic approach, which Mr Paulin espoused in the Respondent’s disability appeal, applies equally to the race complaint appeal by the Claimant.  We accept Mr Livingston’s submission that, to this extent, the Baron Employment Tribunal fell into error.

Disposal
19.	In these circumstances, we shall dismiss the Respondent’s appeal and allow the Claimant’s cross-appeal.  The race complaint, as identified above, will return to the Baron Employment Tribunal, if practicable, for further consideration in the light of our Judgment.  As to the scope of the remission, we should make it clear that no further evidence will be adduced by either party.  The Employment Tribunal will revisit this complaint only on the basis of the evidence which it has received and the further submissions of the parties.  Thus the case may be re-listed for no more than one day.