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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Edwards v. Mid Suffolk District County Council [2001] UKEAT 194_99_1101 (11 January 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/194_99_1101.html Cite as: [2001] UKEAT 194_99_1101, [2001] ICR 616, [2001] IRLR 190 |
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At the Tribunal | |
On 20 November 2000 | |
Before
HIS HONOUR JUDGE D M LEVY QC
MS S R CORBY
MR J R CROSBY
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR B CARR (of Counsel) Instructed By: Disability Discrimination Act Representation and Advice Project 18 Dedicote Street London EC8 4PG |
For the Respondents | MISS S MOOR (of Counsel) Mid Sussex District Council High Street Needham Market Suffolk IP6 8DL |
JUDGE D M LEVY QC:
"[The Appellant] feels that he can no longer cope with the pressures associated with the post and its responsibilities and circumstances, and its detrimental effect on his health".
A brief edited history of his employment was given to Mr Lungley, the concluding paragraphs of which read:
"His attempts to carry out the operational instructions, which he and I had agreed, to manage his assistant and meet her at least weekly to discuss workload and priorities appear to cause him such stress that he is unwilling or unable to comply. In June 1997 [the Appellant] indicated to me that he was finding the whole situation too much and was so fearful of the effect on his health that he formally requested redeployment from his post. The effects on his assistant have lately become extreme. As a very senior manager, [the Appellant's] situation and the effects on both myself and the elected Members, have also now become intolerable."
"In summary [the Appellant] appears to have made progress in understanding and controlling his anxiety state in most situations since starting psychotherapy in 1995. This has also involved sensible use of medication. His most recent difficulties have been largely associated with stresses arising in his workplace, in particular his working relationship with his allocated assistant. I would consider this aspect the most useful to try to rectify to enable him to make further progress and alleviate his anxiety."
"On 30 October 1997 I was able to complete the process of occupational medical assessment of the above named, which I commenced on 25 September 1997, in accordance with your request of 4 September 1997.
I note the contents of your detailed referral letter, together with the attached summarised sickness absence record, and job description, in respect of [the Appellant]. Occupational medical assessment has included medical evidence from [the Appellant's] own health care advisers, as well as medical assessment in this department.
After examination, with consideration of duties and of all the above, I can now give you my opinion which is as follows.
1 [The Appellant] is subject to symptoms of anxiety and tension at times, for which he co-operates with the appropriate recommendations of his own health care advisers.
Notwithstanding his symptoms of anxiety and tension, he is medically fit for all his contracted duties and with no restrictions.
2 [The Appellant] and myself freely acknowledge a major interpersonal difficulty which he perceives in his working relationship with one particular fellow employee, a lady who has been re-deployed as his assistant.
Interpersonal difficulties rather than illness have been the reason that [the Appellant] has not been in a position to undertake his usual duties.
[The Appellant] has been fully advised of my opinion as set out above. I hope this is of help."
"Given the irretrievable breakdown of relationships, the loss of trust and confidence as outlined above, there are no options open to the Council. The Personnel Subcommittee has therefore decided to dismiss you and hereby gives notice to terminate your employment in accordance with the terms of your contract. Twelve weeks notice, on full pay, applies from today's date to expire 1st March 1998."
"Thank you for your letter dated 13 January 1998 requesting a couple of details perhaps not entirely clear in my medical report from 29 December 1997.
(1) I do think that [the Appellant] should be considered a disabled person within the meaning of the Disability Discrimination Act. By definition this requires the medical condition to affect the person persistently and in a wide range of circumstances, i.e. not solely in the context of a particular job. Though [the Appellant] has been undoubtedly most severely affected in recent times by the relationship with his nominated assistant, his anxiety state placed significant restrictions on his daily life before this.
(2) I have not been contacted by Dr Duncan since his detailed letter dated 8th October 1998 which I answered on 20 October 1997.
I hope this information is some help to you on behalf of [the Appellant]."
"APPEALS PANEL HEARING
5 FEBRUARY AND 17 MARCH 1998"
It is an 8 page document, ("the Appeal Hearing Decision") signed by the Chairman of the Panel and dated 30 March 1998, recording the appeal hearing and decision to dismiss the appeal. This is the last document listed in Ms Moor's chronology. From that document, it does not appear that the Appellant was represented at the hearing.
"1 Was [the Appellant] a disabled person within the context of the Disability Discrimination Act 1995 and, if so, did the Council discriminate against him by not making reasonable adjustments?
2 Was [the Appellant] fit to undertake the full range of responsibilities and duties of his post?
3 Was the reason for [the Appellant's] dismissal one which fell within the category of 'some other substantial reason' within the meaning of the Employment Rights Act 1996 Section 98 and, if so, did the Council act reasonably or unreasonably in treating it as a sufficient reason for dismissing him."
"1 [DDA] defines a 'disabled person' as a person with a 'physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities'. In this case it was clear from the evidence that [the Appellant] does suffer from an impairment in that in 1989 he was diagnosed as suffering from post-viral fatigue syndrome and that since 1991 he has also suffered from chronic anxiety syndrome. It was clear that the effect of his impairment is substantial and that that effect is long-term in that it has lasted for more than 12 months."
" …the whole of this litigation stems from [the Appellant's] refusal from the start to accept the Council's decision and to manage or work with Mrs Batchelor … ."
"We are satisfied that [the Appellant] was trying, as he tried consistently, to block any attempt to force him to manage Mrs Batchelor or make any positive suggestions to work with her."
"Insofar as [the Appellant] accuses Mr Chilton of harassment, we find his claim to be disingenuous. In so far as there was any harassment, it was being done deliberately by [the Appellant] of Mrs Batchelor."
"… notwithstanding the applicant's symptoms of anxiety and tension, he was medically fit for his contracted duties with no restrictions. Mr Chilton was concerned that the allegation that [the Appellant] was disabled within the meaning of the 1995 Act appeared to conflict with the occupational health report [of Dr Duncan]."
Paragraph 42 finds the Employment Tribunal satisfied that the Appellant by that stage "having been in contact with Solicitors, was setting out quite deliberately to build a case against the Council".
"We are also satisfied that the Applicant at no stage was interested in redeploying to other tasks and further that there were no reasonable tasks on which he could be employed, and that, by his conduct, it was unrealistic to expect the Council to continue employing him."
In these paragraphs the Tribunal made findings critical of the Appellant and his Solicitors and in praise of the Council and its Officers.
"59 However, this case is also an allegation that the applicant was suffering from a disability and was discriminated against on the basis of his disability. We first of all acknowledge that the respondents have conceded that the applicant was suffering at all material times from a disability within the meaning of the 1995 Act. Having reviewed the evidence in this case, because we were not minded at first to accept that concession by the respondents, we are satisfied that it is properly made. The applicant, by reason of his chronic anxiety state, was substantially disadvantaged from time to time and over a period of years from carrying out everyday activities. We do not propose to elaborate on that matter since it seems not to be germane to the other considerations we have to consider.
60 We are very conscious that in a case like this it may well be that, by reason of a mental illness, an employee acts in a manner which would not be appropriate for someone not suffering from that disability. We are also alive to the duty upon an employer to take reasonable steps, pursuant to the provisions of the Act, to ensure that a disabled employee is not disadvantaged thereby.
61 The difficulty we face in this case is that we are satisfied on the evidence presented to us that the cause of the breakdown in the relationship between employer and employee was nothing whatsoever to do with the applicant's disability. The applicant deliberately, selfishly, consistently and obdurately set his face against working with Mrs Batchelor. It is right that he had suffered from ME in the past and that he has a chronic anxiety state. It may well be the case that his conduct has exacerbated his illness. We are satisfied, however, that he has not established that his conduct towards Mrs Batchelor and Mr Chilton was caused by his illness. We are satisfied that, with the benefit of hindsight and having visited solicitors, that he is using his mental illness as a stick with which to beat the employer. We are therefore satisfied that the disability claim is a complete red herring and that the applicant was well capable of performing his duties at all relevant times in accordance with the report of Dr Duncan and that there is nothing in this case, other than the applicant's evidence which we do not accept, to gainsay that medical opinion. In reaching that conclusion we bear in mind the evidence both of the applicant and of his wife. We regret to have to reach the conclusion that the applicant was not an impressive witness. He was given to self pity and to blaming others for matters that were manifestly within his control had he chosen to co-operate with his employers. His wife in her evidence painted a picture of a man who, if evidence was accepted in toto, could not on any reasonable view of the matter have held down a job of any consequence. We find her evidence to be partial and exaggerated.
62 We do not in the circumstances rehearse the medical evidence. It is in the bundles. We have taken it into account and we are satisfied, just, that the applicant is disabled within the meaning of the Act. But since we are not satisfied that his disability caused or contributed to his conduct in this matter we see no point in elaborating further."
"69 In the normal course of events, we would set out those submissions in detail and make relevant findings based on our findings of fact in this case. However, that is not necessary. There is no causal link between the applicant's dismissal and his disability. We remind ourselves that under section 5 of the Act an employer discriminates against a disabled person if, for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does or would not apply and he cannot show that the treatment in question is justified.
70 We are satisfied that the treatment of the applicant was not for a reason which relates to the applicant's disability. We have set out in detail earlier in this decision the reasons for the applicant's dismissal and that the applicant's conduct may or may not have exacerbated his disability. His conduct and his attitude, however, was not caused by his disability. Further, we are also satisfied that any person who behaved as the applicant behaved, without his disability, whether there was any causal link or not, would have been treated in exactly the same way. Indeed, it is arguable that the applicant, by reason of his history, was treated more gently and allowed more latitude than someone who did not suffer from chronic anxiety syndrome. Thus, we are satisfied that there is no causal link and that in any event a comparator pursuant to the provisions of the test laid down in the Novocold case would not show disparity of treatment towards the applicant.
71 For the avoidance of doubt, we consider section 6. We are not convinced that the employment provisions of Mrs Batchelor come within the meaning of 'arrangements made by or on behalf of the employer' but it is a concession made by the respondents. We are satisfied that the applicant was not subject to a substantial disadvantage by reason thereof. Indeed, in so much as he suffered from a disadvantage, it was entirely of his own choosing by his own obduracy.
72 For all the above reasons, we find that the Disability Discrimination Act claim is entirely spurious and we have no difficulty at all in the circumstances of this case, although it gives us no pleasure, in dismissing that claim. It is not well-founded."
"7 The grounds on which the Appellant appeals are that the Employment Tribunal erred in law in that:
(1) Having correctly recognised that the Appellant was a disabled person within the meaning of the DDA, the Tribunal then failed to make any finding as to the effect of such disability and the extent of any impairment from which the Appellant suffered in relation to his ability to undertake normal day to day activities and to undertake work responsibilities. Such findings were essential if the Tribunal was properly to consider the Appellants complaints that:
(a) he had been unfairly dismissed within the provisions of the Employment Rights Act 1996 and/or had been discriminated against under section 5 DDA in relation to his dismissal;
(b) the Respondent had failed to make any or any reasonable adjustments in accordance with their duty under section 6 DDA;
(2) they failed to take into account the medical evidence submitted to the Tribunal by the Appellant and/or failed to give any reasons or explanation as to why such evidence was not taken [into] account where it differed from the medical evidence submitted by the Respondent;
(3) they failed properly to consider the Appellant's complaint under section 6 DDA in that they failed to follow the guidance set out in Morse v Wiltshire County Council [1998] IRLR 352. The ET should have:
(a) Determined whether the Respondent was under a duty to consider the question of reasonable adjustments under section 6(1) DDA;
(b) If such duty was imposed (as in the present case it is submitted it was), they should then have decided whether the Respondent had taken such steps as were reasonable in order to prevent the Appellant being placed at a disadvantage in comparison with other persons who are not disabled;
(c) In turn, the Tribunal should have considered whether the Respondent could reasonably have taken any steps, including those set out in paragraphs (a) – (l) of section 6(3), whilst also having regard to those factors which are set out at paragraphs (a) – (e) of section 6(4);
(d) The Tribunal should then have considered the question of objective justification as appropriate."
"5 The Respondent cross-appeals from the decision of the Employment Tribunal at paragraph 71 of its decision that the Respondent conceded that the employment provisions of Mrs Batchelor came within the meaning of 'arrangements' under section 6(1)(a) of the Disability Discrimination Act 1995 ('the Act').
6 The Respondent's grounds of appear are:
(a) No such concession was made.
(i) The Respondent, in its Reply to the Disability Discrimination Act Questionnaire at paragraphs 33 and 36, denied that the allocation of Mrs Batchelor was an arrangement within the meaning of the Act and denied that Mrs Batchelor placed him at a substantial disadvantage.
(ii) The Respondent maintained its denial on those two points in its oral submissions. It developed the latter by reference to facts
(b) A particular fellow employee cannot amount to an 'arrangement' within the meaning of section 6(1)(a) of the Act. Therefore the duty under Section 6 did not arise.
(i) The Applicant's case was that the allocation of Mrs Batchelor was the 'arrangement' under Section 6(1)(a) of the Act. (He did not allege that the requirement for him to manage any support worker placed him at a disadvantage).
(ii) The Applicant alleged that Mrs Batchelor was of such a character that he found it impossible to manage her. He made very personal allegations about her character and personality.
(iii) It cannot have been the intention of Parliament to include in the meaning of 'arrangement' the particular traits or personalities of fellow employees. The character or personality of a colleague is not a job-related matter. The job-related is that the Appellant was required to manage a support worker. He did not challenge this arrangement."
"3. The Appellant wishes to resist the cross-appeal for the following reasons:
(1) In relation to paragraph 6.a: the Appellant disputes the suggestion that the concession was not made. Further, the contents of paragraphs 33 and 36 of the Respondent's Reply to the DDA Questionnaire, do not support the contention put forward by the Respondent in its Cross-Appeal;
(2) In relation to paragraph 6.b: the Appellant contends that the construction placed by the Respondent on the meaning of the word 'arrangement' is unnecessarily and inappropriately narrow. Further, whilst an employee may not be an 'arrangement' (as suggested by the Respondent), there is no proper basis on which to suggest that the DDA should be construed so as to put particular arrangements made in relation to particular employees outside the scope of the protection afforded to disabled persons under the Act;
(3) Further, the Appellant relies on the reasoning of the Tribunal in making its decision."
Section 4 (2) to (6) provides:
"(2) It is unlawful for an employer to discriminate against a disabled person whom he employs –
(a) in the terms of employment which he affords him;
(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;
(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or
(d) by dismissing him, or subjecting him to any other detriment.
(3) Subsection (2) does not apply to benefits of any description if the employer is concerned with the provision (whether or not for payment) of benefits of that description to the public, or to a section of the public which includes the employee in question, unless -
(a) that provision differs in a material respect from the provision of the benefits by the employer to his employees; or
(b) the provisions of the benefits to the employee in question is regulated by his contract of employment; or
(c) the benefits relate to training.
(4) In this Part 'benefits' includes facilities and services.
(5) In the case of an act which constitutes discrimination by virtue of section 55, this section also applies to discrimination against a person who is not disabled.
(6)..This section applies only in relation to employment at an establishment in Great Britain."
Section 5 (1) to (5) provides:
"(1) For the purposes of this Part, an employer discriminates against a disabled person if -
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified.
(2) For the purposes of this Part, an employer also discriminates against a disabled person if -
(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.
(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial
(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.
(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty."
Section 6 (1) to (4) and (7) provides:
"(1) Where –
(a) any arrangements made by or on behalf of an employer,
(b) …
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.
(2) Subsection (1)(a) applies only in relation to –
(a) arrangements for determining to whom employment should be offered;
(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.
(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1) –
(a) making adjustments to premises;
(b) allocating some of the disabled person's duties to another person;
(c) transferring him to fill an existing vacancy;
(d) altering his working hours;
(e) assigning him to a different place of work;
(f) allowing him to be absent during working hours for rehabilitation, assessment or treatment;
(g) giving him, or arranging for him to be given, training;
(h) acquiring or modifying equipment;
(i) modifying instructions or reference manuals;
(j) modifying procedures for testing or assessment;
(k) providing a reader or interpreter;
(l) providing supervision.
(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to –
(a) the extent to which taking the step would prevent the effect in question;
(b) the extent to which it is practicable for the employer to take the step;
(c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of the employer's financial and other resources;
(e) the availability to the employer of financial or other assistance with respect to taking the step.
…
(7) Subject to the provisions of this section, nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others."
Mr Carr analysed the medical reports from September 1997 which were before the Tribunal to identify:
• first that the Appellant suffered both from ME and more significantly chronic anxiety disorder;
• secondly that these disabilities were known to the Council, certainly before dismissal of the Appellant's appeal;
• thirdly that the Tribunal heard medical evidence from Dr Helps, the Appellant's GP as well as Dr Duncan;
• fourthly that Dr Helps' evidence was to the effect that the Appellant's inability to cope was due to problems with Mrs Batchelor and that adjustments to his working arrangements would have reduced his stress levels and caused improvement in his performance, important factors when considering the material and provisions of Section 5 (2) and Section 5 (6) of the DDA.
"This report is based on my own conclusions with [the Appellant] and from previous medical records.
[The Appellant] has been suffering with post viral fatigue syndrome or myalgic encephalomyelitis (ME) since March 1988 when he developed episodes of fatigue and general malaise. More significantly as a part of this he has an anxiety disorder leading to frequent panic attacks. This is a well-recognised mental illness, characterised by marked feeling of dread associated with frightening physical symptoms. The symptoms are a racing heart beat, sweating, dizziness, hyperventilation, chest pains, poor co-ordination, diarrhoea and stomach cramps. During these attacks memory and concentration fail, there is a feeling of losing control and often a fear that death is imminent. These attacks can last from a few minutes to several hours, as there is a natural fear of further attacks that perpetrates the anxiety state.
[The Appellant] has suffered numerous episodes of anxiety and panic. During his attacks he has all the classical symptoms as described. When he first presented in 1988 he was fully assessed by Dr Hughes and Dr Irvine, Consultant Physicians at Ipswich Hospital. Full investigations for a physical illness were negative.
He was referred to the Community Mental Health Team in 1992 for help with dealing with his anxiety state. He became worse in 1995 and he started seeing a psychologist for regular counselling. He was again assessed by Dr Paulley (Physician) who could find no physical problem. A referral has been made recently to St Clements Hospital, Ipswich, to see a psychiatrist.
[The Appellant] has developed a lot of very effective coping strategies to avoid stressful situations. He has learnt to pace himself and to avoid confrontation. By reducing his stress levels his anxiety level falls and he is able to manage normal day to day activities remarkably well. He has used Diazepam (a sedative) on occasions when stress has caused an exacerbation of his symptoms. This helps calm his nerves and enables him to deal with situations more effectively. Without the use of this drug he would have found certain situations too stressful. He also uses propranolol, a drug that helps control the physical symptoms of anxiety.
He has attended my surgery on numerous occasions at times of particular stress and I have witnessed his anxiety symptoms. He attended surgery particularly frequently during October/November/December 1997 when he saw my locum Dr A Mowles.
[The Appellant's] illness has affected his home and social life as well as his work. He has had to make significant adaptations to all parts of his life. He has had a lot of support from his family and friends and he has managed well with this support.
I believe that [the Appellant] is a disabled person within the meaning of the Disability Discrimination Act. He has a mental illness that has a substantial and long term adverse effect on his ability to carry out normal day to day activities.
I believe that if [the Appellant's] employers had recognised his disability and had identified his problems it would have helped him considerably. The problems encountered with his assistant exacerbated his anxiety state and he was unable to cope. If the Council had made reasonable adjustments to [the Appellant's] working arrangements his stress levels would have been reduced and performance would have improved significantly."
"We are therefore satisfied that the disability claim is a complete red herring and that the applicant was well capable of performing his duties at all relevant times in accordance with the report of Dr Duncan and that there is nothing in this case, other than the applicant's evidence which we do not accept, to gainsay that medical opinion. In reaching that conclusion we bear in mind the evidence both of the applicant and of his wife."
" … not every failure to make an arrangement which deprives an employee of a chance to be employed is unlawful. It is to s.6 (2) that one must turn for a definition of what is covered. It seems to us that in the context of the language used, namely 'any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded', Parliament had in mind what might be called 'job-related' matters. In other words, Parliament is directing employers to make adjustments as to the way the job is structured and organised so as to accommodate those who cannot fit into existing arrangements".
Mr Carr submitted that the decision as to what was an "arrangement" was wide enough to encompass the disabilities of the Appellant, if they had properly been considered by the Tribunal.