Appeal No. UKEAT/0270/16/BA

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

	At the Tribunal
	On 20 February 2017
	Judgment handed down on 2 March 2017

Before
HIS HONOUR JUDGE SHANKS
(SITTING ALONE)

MR M YASIN	APPELLANT

THE SECRETARY OF STATE FOR JUSTICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR DAVID STEPHENSON
(of Counsel)
Instructed by:
Prolegal Solicitors Ltd
6 Agar Street
London
WC2N 4HN

For the Respondent	MS ROSA DICKINSON
(of Counsel)
Instructed by:
Government Legal Department
One Kemble Street
London
WC2B 4TS

SUMMARY
DISABILITY DISCRIMINATION - Disability related discrimination
DISABILITY DISCRIMINATION - Reasonable adjustments

The Claimant was working for the Respondent as a temporary agency worker.  He went off sick with a disability-related illness.  The Respondent withdrew a conditional offer of employment on the basis of his attendance record.  
He claimed the withdrawal of the offer was disability discrimination on the basis of section 15 (discrimination arising from disability) and section 21 (failure to make a reasonable adjustment by discounting disability-related absences).  
The Employment Tribunal decided that the offer was withdrawn not only because of his attendance record but also because of his failure to keep the Respondent informed during his absence which was such that trust and confidence had broken down and that this meant his claims failed because (a) the suggested reasonable adjustment would have made no difference and (b) withdrawing the offer was justified in order to have effective service which was not possible given the break down in trust and confidence.  
Those facts and the Employment Tribunal’s conclusions from them had not been properly pleaded or raised by the Respondent before or during the hearing and the Employment Tribunal had therefore erred in law in deciding the case on this basis.

HIS HONOUR JUDGE SHANKS 

Introduction
1.	This is an appeal against a decision of the Employment Tribunal sitting in Birmingham (Employment Judge Perry, Mr Thaper and Mr Ellis) sent out on 18 December 2015 rejecting Mr Yasin’s claims of disability discrimination against the Respondent based on section 15 (discrimination arising from disability) and section 21 (failure to comply with duty to make reasonable adjustments) of the Equality Act 2010.  The decision followed a three day hearing at which both sides were represented by the same able counsel as have appeared before this Tribunal.

2.	Section 15 of the Act provides:
“(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.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

Section 20 of the Act defines the content of the duty to make reasonable adjustments as including a requirement that:
“(3) … where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage … in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

Section 21(2) provides that a failure to comply with the duty to make reasonable adjustments is itself a form of discrimination.  Paragraph 20 of Schedule 8 to the Act excludes the duty in a case where A did not know, and could not reasonably be expected to know, that the relevant person was disabled and likely to be placed at a disadvantage.
The Facts
3.	There was no dispute that at all relevant times Mr Yasin suffered from ulcerative colitis and was therefore a disabled person for the purposes of the Act, but the Tribunal found that until 7 August 2014 the Respondent could not reasonably have been expected to know that.

4.	Mr Yasin worked for the Respondent in the Office of the Public Guardian (“OPG”) as a temporary agency worker through Brook Street Agency from 22 April 2013.  He was absent from work because of unrelated health issues from 5 to 20 May 2013 and 15 July to 29 August 2013.  On 20 May 2014 the OPG made him an offer of a fixed-term contract of employment (“FTC”) as a caseworker, conditional on completion of a health questionnaire and pre-employment checks; in the event those checks were never carried out.

5.	On 17 July 2014, while still working on temporary assignment, Mr Yasin was urgently admitted to hospital because of the colitis.  The following day he notified his manager at the OPG that he was in hospital but he did not give any details of why and asked that the fact of his admission to hospital should not be shared with colleagues.  The Tribunal accepted that that he was embarrassed by his condition and that it was understandable that he wanted to find out what it meant before informing his managers about it.

6.	The Tribunal found that on 4 August 2014 Iain Dougall, Head of Operations at the OPG decided to terminate Mr Yasin’s temporary assignment and rescind the offer of a fixed-term contract.  This decision (although not that it was made by Mr Dougall) was recorded in two emails of that date: one to Brook Street Agency which states that the assignment had been ended because of “the extended length of [Mr Yasin’s] absence from work and a review of the previous twelve months”; the other an internal email which says: “the business have asked that [Mr Yasin] should not be offered a FTC … He has just been dismissed as agency staff for his attendance”.

7.	On learning that his assignment had been terminated Mr Yasin wrote to his managers on 7 August 2014 saying that he had now been discharged from hospital having been diagnosed with “a form of inflammatory bowel condition” which he said was “listed under the Equality Act” and that he would not be able to return to work immediately as he would be dependent on steroid treatment for the next two months.  He asked in effect for the decision to be reviewed.

8.	On 18 August 2014 Mr Dougall wrote Mr Yasin an email saying that he had reviewed the decision and considered that “… we have made a reasonable decision in terms of the unacceptably high levels of absence across the last rolling year”.  He went on: “I also think it is a reasonable decision given that managers had been given no information about the nature of the illness on either occasion and were left therefore in an unsustainable position and had to make a decision in the absence of information”.  On 20 August 2014 the conditional offer was formally withdrawn and the pre-employment vetting checks were discontinued.

9.	Notwithstanding the limited terms of the emails of 4 August 2014 and his own email of 18 August 2014 the Tribunal found that Mr Dougall’s reasons for taking and upholding the decision were not only Mr Yasin’s attendance record but also his view that Mr Yasin had made a conscious (or deliberate) decision not to keep the OPG informed about his absences which amounted (Mr Dougall considered) to a pattern of behaviour which had undermined the OPG’s trust and confidence in him as a member of the team.  The Tribunal also found that Mr Dougall was entitled to come to that view; and, in the context of considering the state of the OPG’s knowledge on 4 August 2014, the Tribunal had specifically found that he did not provide all the information he had available to him during his hospitalisation about the likely length of his stay and his condition.

The Employment Tribunal’s Decision
10.	The Tribunal recorded at the outset of the Judgment that Mr Yasin had raised a claim of indirect disability discrimination but that this had been withdrawn.  They then set out their understanding of the claims and issues arising under sections 15 and 21 at paragraphs 6 and 7 of the Judgment as follows.

11.	The “unfavourable treatment” relied on for the purposes of section 15 was the withdrawal of the conditional offer of employment; it was accepted that that treatment was “because of something arising in consequence of” the disability; but the Respondent (a) said it did not know for the purposes of section 15(2) that Mr Yasin was disabled and (b) relied on section 15(1)(b), the relevant legitimate aim being to ensure “that all prospective employees were able to render regular and effective service”.

12.	The provision, criterion or practice (“PCP”) relied on for the purposes of section 20(3) was the requirement that the offer of employment was contingent on Mr Yasin having an acceptable attendance record; the Respondent agreed this PCP was applied; Mr Yasin claimed he was put at a substantial disadvantage by that requirement because his disability led to him having to take time off work and the reasonable adjustment he relied on was that the Respondent should have disregarded the disability-related absence in deciding whether his attendance record was acceptable; again the Respondent said it did not know that Mr Yasin was disabled and the Tribunal recorded that it had to determine whether the Respondent took reasonable steps to avoid the disadvantage relied on.
13.	As recorded above, the Tribunal found that the Respondent could reasonably have been expected to know about Mr Yasin’s disability from 7 August 2014 so that, although the Respondent did not have the requisite knowledge as at 4 August 2014, he did by the time of Mr Dougall’s review recorded in his email of 18 August 2014.  However, the Tribunal rejected the claim under both sections 15 and 21.  The reasoning and analysis (which is set out at paragraphs 125 to 158 of the Judgment) is not the clearest but the decision in both cases was undoubtedly based primarily on the factual findings I have recorded at paragraph 9 above (which for some reason is made as part of the reasoning and does not appear at all in the Tribunal’s recital of the facts at paragraph 16 of the Judgment).  On this basis the Tribunal decided (paraphrasing their reasons as best I can):
(a)	(at paragraphs 125-135 and 148-152) in relation to the duty to make reasonable adjustments, that disregarding the disability-related absence would not have avoided the disadvantage Mr Yasin suffered because the offer would have been withdrawn anyway because of Mr Dougall’s conclusion about Mr Yasin’s behaviour and the breakdown of trust and confidence;
(b)	(at paragraphs 136-145 and 154-158) in relation to section 15(1)(b), that the treatment (i.e. withdrawing the offer) was “justified” in order to achieve the legitimate aim of ensuring not only “regular” but also “effective” service from prospective employees, because the Respondent was entitled to consider that Mr Yasin’s lack of communication had caused the breakdown of trust and confidence and so rendered his service ineffective.

The First Ground of Appeal
14.	The first and main ground of appeal is that in deciding the case in favour of the Respondent in this way the Tribunal wrongly relied on matters which had not been pleaded.
15.	Looking first to the Amended Response, there is reference to what is said in the emails of 4 and 18 August 2014 but none at all to anything like a deliberate failure to communicate leading to a breakdown in trust and confidence or to that being a reason for the termination of the assignment or the withdrawal of the offer of employment.  The only reference to a failure to provide information is in the context of the issue about when the Respondent acquired knowledge of Mr Yasin’s condition at paragraph 23 of the Amended Response.  The Amended Response in relation to the reasonable adjustments claim (paragraphs 24 and 25) and the section 15 claim (paragraphs 28 and 29) must in my view be read in the light of Mr Yasin’s further and better particulars (page 53 in my bundle) which specify the PCP, the disadvantage and the reasonable adjustment relied on by him, and there is nothing in them to suggest that the Respondent would seek to rely on anything more than Mr Yasin’s attendance record as a ground for withdrawing the conditional offer of employment.  In particular, the “legitimate aim” relied on in paragraph 29 (which refers back to what is said in paragraph 27) of ensuring that all prospective employees are able to render “regular and effective” service is directly related to the application of the PCP of requiring an “acceptable attendance record”.  The Amended Response does not in my judgment plead either the facts or the consequences relied on by the Tribunal for rejecting Mr Yasin’s claims.

16.	I also agree with Mr Stephenson that there is no sign of them in the agreed list of issues presented to the Tribunal at the outset of the hearing; indeed paragraph 7 appears to record that the Respondent accepted that discounting Mr Yasin’s disability-related absence would have ameliorated the disadvantage resulting from the requirement to have an acceptable attendance record (which appears inconsistent with the Tribunal’s decision that the offer would have been withdrawn in any event).

17.	At the hearing before the Tribunal, Mr Dougall’s witness statement certainly referred not only to the prolonged periods of absence but also to Mr Yasin’s conduct in providing no information and the consequential “breakdown in trust and confidence” as the grounds for his decision to terminate the assignment and withdraw the offer of employment.  I am also told and accept that Mr Yasin was cross-examined at length about his provision of information during his absence (at least in July/August 2014 and possibly during other absences).

18.	I have been shown the final written submissions of the two parties presented to the Tribunal on the third day following the completion of the evidence on the second.  The only reference in Mr Stephenson’s to the “trust and confidence” point is in paragraph 104 where he invites the Tribunal to infer discrimination from (among other things) the fact that the first time this had been mentioned was in Mr Dougall’s witness statement.  In her submissions Ms Dickinson referred, in the context dealing with section 15(1)(b) at paragraphs 13 to 23, to Mr Yasin’s absences and their impact on the OPG and stated that this was exacerbated by his lack of communication which left the Respondent having to make a decision in the face of an applicant unwilling to share information or to absorb an open-ended absence.  These submissions seem (as Mr Stephenson submitted to me) to relate more appropriately to the decision to terminate the temporary assignment rather than that to withdraw the conditional offer of employment but in any event they do not go nearly as far as the Tribunal in their reasoning on section 15(1)(b).  At paragraph 41 of Ms Dickinson’s submissions to the Tribunal she said: “It is in any event submitted that the contended adjustment [disregarding disability-related absences] was not reasonable.  This is for the same reasons as relied on in respect of proportionality [i.e. paragraphs 13 to 23]”.  Whatever the intended scope of this submission, it is not reflected in the Tribunal’s decision that the adjustment proposed by Mr Yasin would have made no difference because the conditional offer would have been withdrawn in any event on other grounds.

19.	I have already said that the Amended Response and the list of issues did not raise either the basic facts or the consequences which were ultimately relied on by the Tribunal for rejecting Mr Yasin’s claims.  Ms Dickinson says that to require them to be raised in this way was to require, in the words of Langstaff P in Chandhok v Tirkey [2015] ICR 527 at [17], “undue formalism”.  I disagree: in my judgment the allegation that Mr Yasin had made a deliberate decision not to supply information to the Respondent in a way which undermined trust and confidence which in itself justified the withdrawal of the conditional offer and had the consequences in relation to his claims which the Tribunal found were significant points that needed to be pleaded.  Although the factual issues were to some extent aired at the hearing I accept Mr Stephenson’s submission that the case may have been presented and argued differently on his side if he had been on notice of these points; for example, it may have been contended that the failure to communicate was itself something which arose in consequence of Mr Yasin’s disability and/or that in itself it required a suitable adjustment to be made.

20.	Ms Dickinson also suggested rather faintly that Mr Stephenson ought to have raised this “pleading point” at the hearing before the Tribunal and that it was too late to do so on appeal.  I have referred to her final submissions; although lack of communication is a theme of the paragraphs I mention I do not think that Mr Stephenson was put on notice that the case might be decided on the basis it was.  This in my view is in reality a case where the Tribunal has decided matters on a basis which was rather different to that put forward by the parties (both factually and as a matter of argument) without the losing party having an opportunity to deal with it properly.  For those reasons I consider that the decision involved an error of law and that it cannot stand.

Other Grounds
21.	In light of my clear conclusions on the first ground of appeal I propose to allow the appeal but not to consider the remaining grounds.  It is sufficient to say that in my view there are some real problems with the Tribunal’s reasoning at paragraphs 125 to 157 and that I agree with HH Judge Eady QC that the points raised in the amended grounds of appeal are arguable.

Disposal
22.	The appeal is allowed and the Tribunal’s decisions on the claims under sections 15 and 21 are set aside and the issues in relation to section 15(1)(b) and “reasonable adjustments” are remitted to be considered by a fresh Tribunal.  It will be for a Tribunal Judge to give any case management directions necessary on the remittal and in particular to consider whether to accede to any application to amend the pleadings made in the light of this Judgment.