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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Chenembo v London Borough of Lambeth [2014] EWCA Civ 1576 (10 December 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1576.html Cite as: [2014] EWCA Civ 1576 |
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ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Peter Clark, Mr M Clancy, Mr M Worthington.
UKEAT015713M
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE McCOMBE
and
LORD JUSTICE SALES
____________________
JUDITH CHENEMBO |
Appellant |
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- and - |
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LONDON BOROUGH OF LAMBETH |
Respondent |
____________________
David E Grant (instructed by London Borough of Lambeth (Legal Services)) for the Respondent
Hearing date: 20 November 2014
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Crown Copyright ©
Lord Justice McCombe:
Introduction
Background Facts
"…please be aware that I am still incapacitated and unable to attend work for meetings, I am however happy for the meeting to take place at my home if you wish…"
The meeting scheduled for 16 February did not take place and it was re-scheduled for 24 February (notified to the Appellant by letter of 19 February which stated that if she did not attend the meeting a decision might be made in her absence). (The ET said it approached with considerable caution the contention that the e-mail of 16 February had been written by Mr Mefful rather than by the Appellant herself. The ET said that there was nothing about the content or format of the message which was consistent with it having been written by anyone other than the Appellant personally.)
Procedural History
"The issues arising under the combined complaints are set out in a document dated 7 March 2011. Following further refinement of those issues following a discussion at the commencement of the hearing the complaints for the Tribunal's determination under the combined claims are as follows:
(i) Unlawful Disability Discrimination. The issues arising under this complaint are firstly whether the Claimant was a disabled person at the relevant time and, if so, whether the Respondent knew or should reasonably have been expected to have known of that disability. If the Tribunal finds that the Claimant was a disabled person the complaints to be determined are whether the Respondent failed in its duty to make reasonable adjustments in relation to its request that the Claimant attend various face to face meetings with the Respondent, it being alleged that a reasonable adjustment would have been to conduct meetings with the Claimant by means of a telephone meeting or a home visit. In addition, there are four separate complaints of unlawful disability harassment. They are:
(a) Correspondence in which the Claimant's manager requested her to attend meetings in person;
(b) Correspondence in which the Claimant's manager accused her of failing to comply with the sickness policy and procedures;
(c) Correspondence in which the Claimant was alleged to have disobeyed a management instruction by not being able to attend work for a meeting with management; and
(d) The Respondent partly withdrew the Claimant's sick pay.
(ii) Unfair Constructive Dismissal. The Claimant contends that she resigned in response to a repudiatory breach of contract on the part of the Respondent. In addition to the five complaints of unlawful disability discrimination set out above, the Claimant additionally relies in support of her complaint that the Respondent placed itself in serious breach of contract on the following matters:
(a) The Respondent gave the Claimant a formal warning following her absence rather than discounting it on the grounds of disability;
(b) The Respondent failed to arrange a meeting with the Claimant to discuss the occupational health report of 26 March 2010;
(c) The Respondent failed to consider the Claimant's grievance contained within her appeal letter dated 19 March 2010; and
(d) The Respondent's human resources department gave and the Respondent's managers accepted the HR advice both to issue the absence warning referred to above and to refuse to have a formal review meeting at the Claimant's home."
"79. We deal first with the allegation that the Respondent failed in its duty to make reasonable adjustments for the purposes of section 4A of the 1995 Act. The provision, criterion or practice relied upon by the Claimant in relation to this complaint is that the Respondent was "insisting" in face to face meetings at the Respondent's office in relation to formal attendance reviews. We agree with Mr Grant for the Respondent that the evidence does not support a conclusion that, to the extent that such a provision criterion or practice existed, it placed the Claimant at a substantial disadvantage. The Claimant's own evidence was that she would have attended occupational health assessments on both 22 January 2010 and 2 February 2010 had other circumstances not intervened which prevented those meetings from proceeding. The Claimant did in fact attend occupational health meetings on 26 March and 28 July 2010 and attended a job interview in Camden in April or May 2010. We do not accept that any impairment of the Claimant's had the impact on the Claimant's ability to travel to the degree now suggested by the Claimant. For this reason we would have concluded that the complaint that the Respondent failed in its duty to make reasonable adjustments as regards face to face meetings was not well founded"
The ET dealt with the four harassment complaints in paragraphs 80 to 82 of the judgment. It is not necessary to say more about those.
"10……The Tribunal rejected the Claimant's claims throughout but I consider there are reasonable prospects in respect of two. If the Claimant succeeds on her contention that she was disabled there are two practical illustrations which are available to her. The first appears in paragraph 89 of the Judgment which is based upon, for this purpose, the assumption that the Claimant was disabled. Yet, inconsistently, the Tribunal fails to discount the disability when looking at the procedures and their application within the Respondent authority. So this matter will go forward.
11. Secondly, and this is contained within the narrative part of the Judgment, from paragraphs 40 to 48 (Emphasis added) onwards there is an account of the Claimant's failure to attend on 16 February 2010 for at that time she had as depressive incident. It is reasonably arguable that the Tribunal took against the Claimant on this point and illogically found that because the Claimant could attend a month of so later with her husband she could have attended on 16 February. That too is a matter which may be properly ventilated a full hearing."
The judge found that the proposed challenge to the rejection of the unfair dismissal claim was "unarguable".
"The appeal be set down for a full hearing on the finding that the [Appellant] was not disabled and on the two complaints cited in paras 40 and 89 of the [EAT] Judgment. All other grounds are dismissed…"
"7. The second issue relates to the Tribunal's findings at paragraphs 40-48 (Emphasis added) of their Reasons, referred to at paragraph 11 of the rule 3(10) Judgment, the Claimant's failure to attend that meeting. Mr Mefful submits that it was due to illness on the day. However, Mr Grant points to the Tribunal's findings of fact at paragraph 79 of their Reasons. The Tribunal are there dealing with the reasonable adjustment question identified under the heading "issues" at paragraph 2(i) of the Reasons. The relevant proposed adjustment was that instead of attending meetings in person they should be dealt with by means of telephone or home visits. The material question is whether by requiring her to attend meetings in person, the Respondent was placing the Claimant at a substantial disadvantage when compared to an able-bodied comparator. At paragraph 79 the Tribunal answered that question in the negative, for the reasons they have given. Mr Mefful takes the point that in her witness statement the Claimant said that she needed to be accompanied by a family member before leaving the house and none was available on that day. No doubt the Tribunal considered that evidence; however, they concluded that since the Claimant was able to attend occupational health appointments on 22 January and 7 February 2010 and appointments on 26 March and 28 July, together with a job interview with the London Borough of Camden in either April or May 2010, she was able to attend the 16 February meeting and thus on the evidence the requirement to attend meetings did not place the Claimant at a substantial disadvantage. In our judgment, that was a finding that the Tribunal was entitled to reach."
"The decisive issue before the EAT was not whether you were disabled but whether, assuming you were disabled, you had been placed at a disadvantage by the requirement of a face to face meeting. For reasons spelt out in para 79 of their determination the ET decided you were not. I know you disagree, but this is a finding of fact which bound the EAT and binds this court. It means any appeal is bound to fail." (Emphasis in the original)
The application was renewed at an oral hearing before Rimer LJ on 8 May 2014 and was granted. Although the application by the Appellant was for permission to bring a second appeal, neither Sir Stephen nor Rimer LJ dealt with the matter on the basis of whether the appeal raised an important point of principle or practice or whether there was some other compelling reason why a second appeal should be heard, but decided the matter entirely on the first appeal test of whether the proposed appeal presented real prospects of success.
"1. The EAT determined that the written warning detriment was not brought under a disability discrimination compliant. However, as argued before the EAR, paragraph iii of the Appellant's ET1 (see para 90) clearly shows that the written warning detriment was raised as a disability discrimination complaint.
2. It is perverse, illogical and a material error of fact to find that the Appellant could have attended the formal disciplinary meeting of 16th of February 2010 (or thereabout) just because she had indicated in the past that she would be willing to attend that meeting; or because she was able to attend a medical appointment 5 weeks afterwards. This determination was further corrupted by the Tribunal's error of law on the issues of deduced effect (as found by the EAT)." (Emphasis in the original).
It appears that the reference in ground 1 was to a passage in the Appellant's second ET Claim Form of 28 October 2010 (page 181 of the Appeal Bundle in this court) to this effect:
"The Claimant seeks compensation and declarations that…
III The Respondent, in breach of DDA s 4(2)(d), subjected her to a detriment, (and thus harassment) by issuing her a written warning…".
Discussion
Conclusion
Lord Justice Sales:
Lady Justice Arden: