Tameside Hospital v Mylot UKEAT/0352/09/DM UKEAT/0399/10/DM

Appeal by the R against decisions of unfair dismissal and disability discrimination. Appeal and cross-appeal against remedy decision.

Facts

C went off sick with stress and anxiety following an incident of alleged offensive behavior by two managers.

The medical evidence suggested that he had situational anxiety that would not resolve until the underlying organisational issues had been resolved.  The Dr advised that C’s ability to return to work would be helped by an independent management investigation and that the options for resolving the workplace issues be discussed with him.  This did not happen.  Instead C was required to use R’s bullying procedure.  One of the managers that he  complained about was directly involved in the preparation and investigation of the response to his complaint.  The outcome made no finding about bullying but stated there were “communication” issues.

C remained off sick and was later dismissed due to capability.  During the course of the procedure leading to his dismissal he discussed ill health retirement with R.  He was not offered ill health retirement. After his dismissal C appealed. He stated that R had failed to make reasonable adjustments including that R had acted too quickly in dismissing him and had failed to consider ill health retirement. C’s appeal was dismissed and C made claims of unfair dismissal and disability discrimination to the ET.

The ET held that R had failed to make reasonable adjustments and should have: (a) carried out an independent management review to investigate the bullying; (b) made a finding about whether C had been bullied; (c) taken into account both the occupational health advice and the finding about “communication issues” when dismissing him; and (d) looked into the possibility of ill health retirement.

Held

The EAT upheld the ET’s findings in relation to adjustments (a) to (c) above.  The EAT rejected the argument that, since C had not recovered by the hearing, the Tribunal was wrong to conclude that the adjustments would have enabled his return to work.  The EAT held that this finding was open to the ET on the evidence.

The EAT allowed the appeal in respect of (d) and held that the duty to make adjustments did not extend to enabling an employee who was no longer able to perform his own role (or an alternative one) to leave on favourable terms.  Underhill J stated:

“The Trust’s case is that there was no reason to suppose that facilitating an application by the Claimant for ill-health retirement would have helped to ensure his return to work.   That is self-evidently true:  ill-health retirement involves leaving the job, not doing it.  That raises the question whether the duty under s.4A extends in the appropriate case, to enabling a disabled employee who is no longer able to do the work (or any available alternative) to leave the employment on favourable terms.  We find it hard to see how it can.  We can identify in such a case no provision, criterion or practice” which has an adverse “effect” on the employee which offering him ill-health retirement would prevent or mitigate.   The whole concept of an adjustment seems to us to involve a step or steps which make it possible for the employee to remain in employment and does not extend to, in effect, compensation for being unable to do so.”

There was therefore no duty to offer ill health retirement since there was no PCP that had an “effect” on C.

The EAT also allowed the appeal against compensation for future loss of earnings. Although there was sufficient evidence to find that the adjustments might have helped C to return to work there was insufficient evidence to make an award of compensation on the basis that he would have returned to work. The EAT upheld the award for injury to feelings, rejecting the argument that it must fall within the 1st Vento band if it was a one off event.

Comment

S.4A DDA 1995 stated that an adjustment must “prevent” the disadvantage. At para. 83 Underhill P states that the “irreducible minimum” that has to be proved is that the adjustment might ameliorate the effect of C’s disability (in this case that he might have returned to work).  This is arguably a broader interpretation of “prevent” than previous cases (cf: Project Management Institute v Latif [2007] IRLR 579).  It is important to note that even if C proves that the adjustment might have prevented the disadvantage for the purposes of liability he must still, in most circumstances, prove that it would have prevented the disadvantage for the purposes of remedy.

To the extent that the claimant’s case is rejected because it is argues that R failed to “consider” ill-health retirement and did not actually remedy a disadvantage caused by the requisite PCP – Underhill P’s decision would be right (see Tarbuck v Sainsburys Supermarket Ltd).  Failing to consider an adjustment is not a breach of the duty.  Failing to implement an adjustment it.

Underhill’s approach to question of whether ill-health retirement can constitute a step that an employer is required to take touches on a difficult question.   Underhill P asked whether the duty “extends” to enabling a disabled employee to leave employment on favourable terms.  He stated that he could not , in this case  identify a PCP that had an adverse effect on C which offering ill health retirement would have prevented or mitigated.

However, Underhill P also stated that because offering ill-health retirement is not a step which makes it possible for the employee to remain in employment, it is not a step that an employer is required to take.  This approach would appear to require the PCP and the disadvantage caused by the PCP to be related to the claimant’s ability to participate in the workplace before the duty to take any steps arises.  If we imagine that the PCP was the practice of not putting employees on long terms sick forwards for ill health retirement, Underhill P would presumably say that this was not a PCP that resulted in a relevant disadvantage because the disadvantage was not being able to retire on favourable terms.  If that was the EAT’s approach, then it is arguably wrong.

Following the more recent cases of G4s Cash Solutions v Powell and Griffiths, there is no reason to restrict the ordinary wording of the statute by reference to its purpose.  The purpose of the statute is relevant to whether or not the adjustment is a reasonable one to have to make and this is a nuanced question that takes into account the facts of each individual case.

The full transcript is here: http://www.employmentappeals.gov.uk/Public/Upload/10_03990352FHOJDM.doc