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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Fareham College Corporation v. Walters [2009] UKEAT 0396_08_1405 (14 May 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0396_08_1405.html Cite as: [2009] UKEAT 0396_08_1405, [2009] IRLR 991, [2009] UKEAT 396_8_1405 |
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| At the Tribunal | |
Before
THE HONOURABLE MRS JUSTICE COX
MS K BILGAN
MR D G SMITH
| APPELLANT | |
| RESPONDENT |
Transcript of Proceedings
JUDGMENT
| For the Appellant | MR M SALTER (of Counsel) Instructed by: Messrs Lyons Davidson Solicitors Park House 87 Burlington Road New Malden Surrey KT3 4QP |
| For the Respondent | MR D DYAL (of Counsel) Instructed by: University and College Union Legal Services Carlow Street London NW1 7LH |
SUMMARY
DISABILITY DISCRIMINATION
Reasonable adjustments
Disability related discrimination
Compensation
PRACTICE AND PROCEDURE
Case management
THE HONOURABLE MRS JUSTICE COX
Summary of Liability Issues
Summary of the Remedy Issues
The Liability Appeal
The Facts
"22.13 Meanwhile, the Claimant's pay having ceased, she was concerned about taking her paid holiday entitlement during the current leave year, and emailed queries about her outstanding leave. On 8 June 2006 Ms Hinton (HR Manager) emailed her, telling her that whilst she accrued leave whilst on sickness absence, 'annual leave cannot be paid in lieu' and that she would need to return to work before leave could be arranged. The same day, Ms Hinton wrote to the Claimant suspending (without her agreement) her previously approved summer leave of 25 working days booked for 24 July to 25 August. The [letter] also specified that the taking of leave would be discussed with her when she was fit enough to return to work. The Claimant responded by email the following day, expressing her concern over the cancellation of holiday and the refusal to let her take paid holiday. She continued to express her concerns, and on 26 June 2006 Ms Hinton wrote again, stating (without referring to the authority for this assertion) that if the appellant was absent because she was ill, 'then this cannot also be counted as holiday'."
"I would recommend that you make an appointment for Susan to see me again for further assessment in early September if the option of a phased return to work is to be considered."
"22.25 The formal meeting with the Principal, Mr Groves, took place on 7 September 2006. Mr Dingsdale also attended, as did an HR Manager and a Personal Officer. The Claimant attended with Ms Ailes. Early on during the meeting, Ms Ailes announced that there was further news regarding the Claimant's health: Firstly, she had been diagnosed with having fibromyalgia, and secondly she had a date for surgery (on another matter) at the end of October. Mr Groves did not know what fibromyalgia was and took no steps to find out. At the time of the hearing he was still unaware as to what it was. Mr Groves did not ascertain the nature of the surgery which the Claimant was due to undergo. Ms Ailes requested that the case be reviewed again in December with a view to the Claimant returning to work in January on a 0.5 basis, working daytime only. The Claimant would be teaching IT: Ms Ailes confirmed that the Claimant had considered alternative roles, albeit not in detail, and wanted to remain in teaching. Mr Dingsdale advised Mr Groves that it would be difficult to find temporary cover for a few months, although the department was currently looking at that, and advised that it caused problems for students; it would cause friction if other staff had to cover the Claimant for evening teaching; it would be difficult to manage more part-time staff. The Claimant explained that she felt unwell early in the morning and in the evenings, and better in the middle of the day. Mr Dingsdale offered the opinion that this would be difficult to timetable. The Claimant stated that she hoped to be able to return to work 0.5 in January, but could not confirm. Mr Groves also told the Tribunal that he had understood Ms Ailes to have said that the Claimant would be able to provide a sick note until the end of March 2007, although the Tribunal considers that it should have been clear from the context that when a reference was made to the 'end of next term', December 2006 was plainly being referred to, as clear references were made to the Claimant hoping to start work in January.
22.26 After a half-hour recess, Mr Groves announced that the Claimant would be dismissed with immediate effect, with two months' pay in lieu of notice and accrued holiday entitlement (by which he clearly meant holiday accrued since 1 September). He explained his reasoning, stating that redeployment had been rejected because the Claimant would only consider a teaching position in a fractional post. The Claimant was not eligible for ill-health retirement. A possible extension to the review period was rejected for four reasons: (1) It would be difficult to get someone to cover on a temporary basis, (2) it would impact negatively on learners to have a series of teachers, (3) the Claimant would not take a share of the evening work, and (4) management of multiple fractions is difficult. Mr Groves concluded that there was a less than even chance of the Claimant returning to work in January (although he did not explain the basis for this conclusion) and holding the post open was likely to further inconvenience the students.
22.27 The dismissal was confirmed by letter dated 11 September 2006, which also reminded the Claimant of her right to appeal. The Claimant did appeal, complaining about her dismissal. Grounds included not giving weight to the OH report, not awaiting a further medical appointment, not being allowed a phased return to work and giving insufficient consideration to alternative positions. She was invited to an appeal hearing, which she attended (with Ms Ailes) on 5 October 2006. Mr Groves presented the case for the College, and Ms Ailes the case for the Claimant. The appeal panel's decision was set out in a letter dated 16 October 2006: the panel had considered the arguments, and concluded that the College had properly considered the OH medical evidence, and that a further appointment in September 2006 had not been required. The panel considered that the Claimant's wish to remain in teaching, with her continuing sickness absence and the effects of her (unspecified) condition, placed restrictions on the College's ability to find her alternative employment. The appeal was not upheld."
The Tribunal's Decision on Disability Discrimination
"13.1 Unlawful disability discrimination prior to dismissal by the Respondent, refusing a phased return to work (failure to make reasonable adjustments).
2. Disability-related discrimination pursuant to section 3(A)(1) Disability Act 1995 by the dismissal of the Claimant by the Respondent."
"14.1 Did the Respondent refuse a phased return to work for the Claimant?
14.2 If so, did that refusal amount to a provision criterion or practice?
14.3 If so, did it place the Claimant at a substantial disadvantage in comparison with non-disabled persons?
14.4 If so, did the Respondent have the required knowledge about the Claimant as a disabled person?
14.5 If so, did the Respondent take such steps as it was reasonable to take in all the circumstances in order to prevent the provision criterion or practice having that disadvantageous effect? (Section 18B of the 1995 Act)"
"15.1 For a reason which related to the Claimant's disability, has the Respondent treated the Claimant less favourably than the Respondent treats (or would treat) others to whom that reason does not (or would not) apply?
15.2 If so, has the Respondent shown that the reason for the treatment is both material to the circumstances of the case and substantial?
15.3 If so, does the treatment amount to direct discrimination?
15.4 If so, is the Respondent under a duty to make reasonable adjustments?
15.5 If so, has the Respondent failed to comply with that duty?"
"29. Paragraph 14.1 is, on the face of it, specific in referring to a refusal of a phased return to work, which the Respondent suggests is very limited in scope. The Tribunal considers that the Claimant has not articulated her claim as clearly as might have been helpful, but takes a less restrictive view of what this issue should be taken to cover. In reality, the Tribunal considers that the Claimant, if she had returned to work after such an extended absence, probably whilst still not fully fit, would almost inevitably have needed to have 'phased' return to work, with accommodation of her difficulties, rather than expecting her to resume all her old duties with no changes at all. Thus, this label must be taken, in effect, to be a reference to a refusal to find a suitable way of bringing the Claimant back into the workplace at all, such that her disability would not prevent her from being able to work. Indeed, this is really the heart of the Claim. The Tribunal considers that there was a refusal of a phased return to work.
30. The Tribunal is satisfied that, logically, the refusal must have amounted to a "provision, criterion or practice", and that it placed her at a substantial disadvantage in comparison with non-disabled persons. As a result of her disability, she was in a position where her return to work was seen by the Respondent as unusually problematic, such that the College was not prepared to countenance what were assessed by Mr Groves to be unacceptable adjustments
31. The Tribunal considers that the Respondent did have the required knowledge of the disability, and fairly recent information as to the range of symptoms which were, or had been, suffered by the Claimant. There was long-standing knowledge as to plantar fasciitis, which had first contributed to extended sickness absence as early as the beginning of 2005. The diagnosis of fibromyalgia was first brought to the Respondent's attention (by handing in a sick-note) at the meeting on 17 August 2006. It was then explicitly brought to Mr. Groves' attention at the meeting on 7 September 2006, after which he decided to dismiss her. As for the latter, the Tribunal was surprised not to have been provided with recent medical evidence, but notes that the Respondent has agreed that she had this disability at the relevant time. The Tribunal draws the inference from evidence it has received that this diagnosis would have covered a number of the symptoms which she had been suffering for some time, and was therefore significant. The Respondent did have some medical evidence, albeit at the time of dismissal no proper enquiries had been made of the significance of the new diagnosis (and the relevance of the forthcoming surgery) and how this might affect the prognosis, the treatment and how suitable adjustments might be made taking it into account.
32. The key issue is the remaining one: whether the Respondent made reasonable adjustments.
33. Notwithstanding the background of the initiation (and then the termination) of capability or conduct proceedings against the Claimant, the Tribunal is satisfied that Mr Groves was not part of an insidious move to dispense with the Claimant's services, come what may. No doubt Mr Groves believed that he was acting even-handedly. However, the Tribunal considers that the reasoning regarding why adjustments should not be made was significantly flawed.
34. The Tribunal is concerned that by the time of the meeting on 7 September 2006, management had already recruited a new lecturer, whose role would, at least in part, be to replace the Claimant (even if not directly). This would in all likelihood have had some impact, even if inadvertently, in discouraging the Respondent from trying so diligently to find ways to get the Claimant back to work, if her work could more easily be covered in her absence. It would doubtless have had some impact on the advice which Mr Dingsdale gave to Mr Groves; and also goes to undermine the argument, accepted by Mr Groves, that 'it would be difficult to get someone to cover on a temporary basis until [the Claimant's] possible return in January'. The reality was that adequate cover had already been arranged, and there was no evidence before the Tribunal indicating that after the Claimant was dismissed the College then needed to recruit a new full-time or part-time employee to cover the Claimant's task.
35. An obvious adjustment was to accede to the Claimant's request to delay a decision until the end of term, after a further medical examination, in the hope that she would be fit to return in January 2007, especially if the arguments regarding temporary staff cover were less persuasive than they may at first have appeared. However Dr Weddell's (OH) letter of 18 July 2006 is precisely construed, he was clearly indicating that there were a number of ongoing medical issues and that he should provide a further medical report before the Claimant returned to work. The fact that there was new information about a diagnosis of fibromyalgia and surgery should have made it even clearer that up-to-date medical information was required. The onus is on the employer, not the employee, to consider what adjustments could be made. Mr Groves attached weight to the lack of a clear medical prognosis as to return date, but did not request such a medical report, and refused to countenance an extension to the review period, when the Tribunal considers that such an extension would have been both sensible and easy to accommodate.
36. Although the Respondent's Managing Absence Policy made passing reference to the DDA, it did not spell out how procedures should be modified accordingly. Mr Groves told the Tribunal that he treated the Claimant as a person to whom the DDA applied, but the reality was that he followed the procedure specified for all those returning from sick leave, when the DDA places a rather greater statutory burden on the employer.
37. Mr Groves proceeded on the basis that the Claimant would not consider redeployment to another role, whilst acknowledging (rightly) that redeployment was a possible reasonable adjustment. However, in rejecting this, the Tribunal considers that he misunderstood the situation and therefore ruled out an adjustment which might have been easy to make. In fact, no concrete proposals had been put to the Claimant: she had been asked by Mr Dingsdale in the meeting of 13 July what career she wanted to continue with - not unnaturally she stated that she wanted to remain as a lecturer. This is quite different from a temporary change in roles whilst recovering from a chronic illness. Similarly, when subsequently asked about alternative roles, the Claimant did little more than expressing a preference - redeployment was never formally ruled out, and no attempt was made to locate or create a possible role which might suit the Claimant on a short or longer term basis. The Respondent failed to give adequate consideration to assigning the Claimant to other work. Even though, on appeal, the Claimant raised this as an issue, no further consideration was given to what work might be made available.
38. Although no medical evidence was sought by the Respondent as to working hours, great weight was attached to some rather general comments by the Claimant as to feeling better in the middle of the day than the early morning and evening. It was considered by Mr Groves that the Claimant 'would not take a share of the evening work' and 'there could be difficulty with mornings'. However, the Respondent did not provide any credible evidence that the Claimant would actually need to carry out evening teaching for the courses to which she would likely be assigned, and her previous timetable demonstrates a very variable morning teaching workload. Furthermore, the Claimant never stated that she could not work at certain times, and no attempt was made to discuss how the hours might be adjusted. Similarly, no enquiry was made into the likelihood of such adjustments being anything other than short-term. This is just the sort of adjustment which an employer should be able to accommodate. Notwithstanding time-tabling complications, the Tribunal considers that the Respondent did not go far enough to consider how this adjustment might be accommodated.
39. The Respondent's case was that management' of part-time staff was difficult, and they should not have too many such staff. However, there ware already part-time staff working at the College and no objective evidence was provided as to why the Claimant could not work part-time, why this would be problematic, and why the number of part-time staff in her department could not be increased (indeed, no statistics at all were provided). Similarly, if the Respondent was concerned that other staff would be dissatisfied because they had perception that they were having to change their own working arrangements to accommodate a disabled colleague, then this does not amount to a very compelling argument under the DDA. Again, there was no enquiry as to the likely period of such an adjustment. Mr Dingsdale had earlier explained that this was 'not sustainable in the medium to long term', but no attempt was made to find out if this was likely to be the necessary time-scale.
40. The Tribunal has sympathy for the College's need to provide a suitable learning experience to students, and to avoid disrupting their teaching as far as practicable. However, this does not amount to sufficient reason, either alone or in combination with other factors, not to attempt to make the necessary time-tabling changes, or to seek alterative work for the Claimant with which she would better be able to cope. Indeed, the Claimant had been covered by others throughout her absence during the previous academic year, even if such cover might not have been ideal. Mr Groves should have challenged the advice he had received, and have placed greater emphasis on considering how the College could best discharge is duties under the DDA with respect to the Claimant, when considering the balance of administrative inconvenience.
41. There is, perhaps, a rather legalistic point (which was not taken by Mr Salter) that most of the potentially reasonable adjustments had not yet arisen as issues because the Claimant was still on sick leave at the time of dismissal. However, the Tribunal considers that an alternative way of looking at the issue would be to conclude that the failure was in the nature of failing properly to plan what adjustment could be made in the near future, including (and in particular) extending the review period, during the process of deciding whether or not the Claimant should be dismissed.
42. Overall, the procedures followed did not take sufficient account of the DDA, and all the necessary steps to consider reasonable adjustments were not made. The Tribunal concludes that the Respondent, in June to September 2006, discriminated against the Claimant by failing to make reasonable adjustments. It was therefore in breach of its duties under Section 4A of the DDA.
Less Favourable treatment
43. The less favourable treatment complained of is the Claimant's dismissal. This is, however, a case where it is difficult to disentangle the failure to make reasonable adjustments from the decision to dismiss. In short, the Claimant was dismissed because Mr Groves considered that the alternatives to dismissal involved making unacceptable adjustments, and the only third way was ill-health retirement, for which she did not meet the stringent criteria.
44. Considering the issues set out at Paragraph 15, above, the Tribunal considers that it is self-evident that the Claimant was treated less favourably than others would be. Mr Salter submitted (correctly) that she was dismissed because of long-term sickness. However, this is an incomplete explanation. He also suggested that there was no direct evidence that the sickness was related to the Claimant's admitted disabilities, and that the Claimant had failed to discharge the burden of proof. Whilst the tribunal understands this argument, it notes that the Claimant has been unrepresented in presenting her case, and notes that the Respondent has admitted that the Claimant was a disabled person at the material time. The Tribunal considers that the evidence as a whole, including what limited medical evidence is available, is sufficient that the strong inference should be drawn that plantar fasciitis and fibromyalgia contributed to the sickness absence at the time of dismissal. The Tribunal concludes that the Claimant was treated less favourably for a reason which related to her disability.
45. The main issue is whether the Respondent's treatment of the Claimant is justified. The Tribunal considers that this is similar to the reasonable adjustments issue. The dismissal was material in the sense that it occurred because the Respondent was concerned by the long period of sickness absence and the apparent difficulties of managing the Claimant's return to work and its impact on the teaching of students. However, the Tribunal that the materiality was significantly limited by the failure to obtain proper up-to-date medical information before the decision to dismiss was taken, or to give proper consideration to how dismissal might be avoided. The Tribunal also considers that the Respondent's reasons were not substantial: in all the circumstances the Respondent placed too much weight on factors which could have been managed better or which were incompletely analysed.
46. The Tribunal considers that there is no basis for arguing that the treatment was direct discrimination (which has not been argued, in any event), and agrees with the Respondent that it was not.
47. As for reasonable adjustment, it is axiomatic that the Respondent was under a duty: the question is whether there was a failure to comply with that duty. That question has already been answered in the affirmative. The Tribunal would also observe that even if it had accepted the Respondent's restrictive interpretation of the 'reasonable adjustment issue' set out at paragraph 14.1 above (with respect to Section 4A DDA), when considering reasonable adjustments again generally in assessing whether there was discrimination under Section 3A., it does not consider that such a restrictive interpretation could be given at this stage.
48. The Tribunal concludes that the Respondent, on 7 September 2006, discriminated against the Claimant by dismissing her in breach of its duties under Section 3A of the DDA."
The Appeal
Reasonable Adjustments
"In our opinion an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with the Section 4A duty must identify:
(a) the provision, criterion or practice applied by or on behalf of an employer, or
(b) the physical feature of premises occupied by the employer,
(c) the identity of non-disabled comparators (where appropriate) and
(d) the nature and extent of the substantial disadvantage suffered by the Claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the Claimant may involve a consideration of the cumulative effect of both the 'provision, criterion or practice applied by or on behalf of an employer' and the, 'physical feature of premises' so it would be necessary to look at the overall picture.
In our opinion an Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments under Sections 3A(2) and 4A(1) without going through that process. Unless the Employment Tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage."
"Mr Lissack is right to submit that it is apparent from each of the speeches in Archibald that the proper comparator is readily identified by reference to the disadvantage caused by the relevant arrangements."
That of course is a reference to the case of Archibald v Fife [2004] ICR 954. In this way, the more general comparative exercise required in a reasonable adjustments claim, involving a class or group of non-disabled comparators, differs from that which is understood and applied in the individual, like-for-like comparison required in cases of direct sex or race discrimination or in disability-related discrimination claims.
"in a position where her return to work was seen by the respondent as unusually problematic, such that the College was not prepared to countenance what were assessed by Mr Groves to be unacceptable adjustments."
She was thereby placed at a substantial disadvantage in comparison with other, non-disabled employees. We consider therefore that there is no error of law in the Tribunal's reasoning in relation to the reasonable adjustments claim, and the necessary comparative exercise.
Disability-Related Discrimination
The Tribunal's Decision on Unfair Dismissal
"16.1 Has the Respondent proved that the reason for the Claimant's dismissal was capability pursuant to Section 98(1) and (2)(a) Employment Rights Act 1996?
16.2 If so, was the decision to dismiss fair within the meaning of Section 98(4) of the 1996 Act?
16.3 Was the dismissal automatically unfair pursuant to Section 98A of the 1996 Act on the ground that there was a failure by the Respondent to comply with one or more requirements of the statutory dismissal and disciplinary procedures (as alleged by the Claimant on page 12 of her claim form)?"
"53. The Tribunal has no hesitation in concluding that the only relevant procedures were those in the run-up to dismissal (although the aborted investigation commenced in January 2006 had in fact been correctly started). The Tribunal is satisfied that after legitimate investigatory meetings in July and August 2006, the Respondent complied with the requirements of Step 1 of the DDP set out in Schedule 2 to the Employment Act 2002 by sending the Claimant a letter on 29 August 2006. This letter (following detailed earlier discussions and giving the Claimant other relevant documents) ensured that the Claimant had sufficient information before the Step 2 meeting. The Tribunal is satisfied that the meeting of 7 September 2006 complied with the statutory requirements as to Step 2. The Step 3 appeal also complied with the statutory requirements."
They therefore had no hesitation in dismissing the unfair dismissal claim under section 98A(1). They also considered that there was no evidential basis for concluding that there was any breach of the statutory grievance procedures. Thus no awards found to be payable fell to be adjusted under section 31 of the Employment Act 2002.
"Unfair Dismissal (Section 98 Employment Rights Act 1996)
56. The Tribunal is satisfied that the effective date of termination was 7 September 2006, the date that the dismissal (which was to take immediate effect) was communicated to the Claimant.
57. The Claimant wondered if perhaps the reason for dismissal was redundancy, but the Tribunal considers that the evidence does not support such a conclusion. The burden of proof is on the Respondent, which argues that the reason was clearly capability, in the sense that the Claimant was on long-term sick leave and unable at the time of dismissal to carry out the job she was employed to perform. The Tribunal agrees, noting that although this is a potentially fair reason it is not inconsistent with the Tribunal's findings as to disability discrimination.
58. The Tribunal considers that It is not impossible for a discriminatory dismissal to nevertheless be fair for the purposes of the Employment Rights Act, which employs a. different test, However, on the facts of the case, and in the light of the Respondent's failure to consider the factual issues and the reasonable adjustments in any adequate way, the Tribunal considers that the dismissal undoubtedly fell outside the band of reasonable responses. The Respondent was of a size, with the administrative resources at its disposal, whereby it should have been able to conduct a proper investigation into all the issues and better considered what adjustments would enable the College to avoid a dismissal. The failure to conduct a proper investigation into factors which Mr Groves knew might militate against a dismissal, and to provide a properly logical approach to the decision-making process, rendered the dismissal procedurally and substantively unfair. This is not really a BHS v Burchell case, but the approach is similar: there was a need to conduct an investigation into the facts, both regarding the precise nature and prognosis of the medical conditions, and of what measures might avoid the need to dismiss. In both respects, there had not been as much investigation into the matter as was reasonable in the circumstances. A reasonable employer would not have dismissed. Dismissal was not within the band of reasonable responses.
59. The appeal may have been procedurally fair, but failed to engage with the issues adequately and merely perpetuated the flawed decision-making of the original decision to dismiss.
60. The Tribunal has considered Section 98A(2), but considers that the flaws went beyond a failure to follow a procedure, and that the Respondent cannot avail itself of this defence."
The Appeal
The Tribunal's Decision on Breach of Contract
"17.1 Was the Claimant contractually entitled to 50 days holiday per year?
17.2 If so, was the Respondent in breach of contract in preventing the Claimant from taking more than fourteen days holiday in the holiday year 1st September 2005 to 31st August 2006?
17.3 If so, what amount of damages is the Claimant entitled to in respect of 36 days untaken holiday entitlement for that holiday year?"
Their decision on the submissions advanced on these matters appears at paragraphs 61 to 64 of the decision, which are as follows:
"Breach of Contract – Holiday Pay
61. The Claimant submitted that she was prevented from taking her full holiday entitlement, and that in so doing the Respondent was in breach of contract. The Respondent agreed that there was a contractual entitlement to 50 days paid holiday per year (plus 8 bank holidays), but denies the breach of contract. It was submitted by Mr Salter at the end of the hearing (or at least that is the Tribunal's understanding of the main thrust of his submissions) that the claim could only be brought under the Working Time Regulations (WTRs), but that in any event there was no breach of contract - if the contract was silent, the principles underlying the WTRs should be applied. The Tribunal was referred to Commissioners of Inland Revenue v Ainsworth [2005] EWCA Civ 441 and the Opinion of the Advocate General in C Stringer (and others) v Her Majesty's Revenue and Customs C-520/06 delivered 24 January 2008.
62. In the first place, the Tribunal considers that there are no express terms of the contract (as set out in the contract of employment itself, and in the Collective Agreement) capable of being interpreted as indicating that an employee on sick leave is not permitted to take paid annual leave until after returning from sick leave. The Tribunal does not consider that this is implicit, that there is evidence of custom and practice modifying the contract, or any oral variation of the contract. The fact that Ms Hinton did not consider that this was permitted is not indicative of anything other than her belief - the Tribunal was provided with no rational basis for this belief. The Tribunal considers that the contract can, logically and sensibly, only be interpreted as indicating that there is an entitlement for all employees to have the amount of paid leave referred to above. Paragraph 5.5 of the contract does, however, provide that leave will be forfeited when there is 'failure to take leave entitlement in the appropriate leave year'.
63. The Tribunal has no hesitation including that there was no 'failure' by the Claimant to take outstanding leave before 31August 2006. That she was off sick was not a 'failure' by her, and within the terms of the contract this should not have affected her leave. She had 25 days booked already for the summer vacation period, but the Respondent unilaterally, and against her express wishes, cancelled that leave, and prevented her from taking any further leave, despite her wish to do so. Although the timing of leave is subject to the agreement of the line-manager (contract, paragraph 5.2), it is implicit that the line-manager had already agreed to the dates, which were cancelled by Ms Hinton, with no evidence as to the line-manager's involvement. In any event, the Tribunal cannot see how any line-manager could conceivably not consent to leave being taken at a time when an employee was not available for carrying out her duties as an employee.
64. The Tribunal is satisfied that the Respondent was in breach of contract in preventing the Claimant from taking more than fourteen days' holiday (plus any paid bank holidays which had been taken) in the leave year 1 September 2005 to 31 August 2006. It therefore follows that the balance of outstanding holiday (and hence holiday pay) remained outstanding under the contract of employment at termination."
The Appeal
The Remedies Appeal
"Respondent's adjournment application:
8. Mr Salter applied for an adjournment, on the basis, firstly, of Ms Hinton's illness, and secondly that an EAT preliminary hearing had been set for 12 December. He referred to the case of City & County of Swansea v Mr R M Honey [2008] UKEAT/0030/08/RN, UKEAT/0549/07/RN & UKEAT/0029/08/RN, BAILII: [2008] UKEAT 0030_08_0711 and handed up copies of the judgment; he relied on paragraph 36 to support his arguments. He suggested that the adjournment would cause no unfairness to the claimant. He submitted that it was highly likely that the appeal (probably to be heard in March or April'2009) would be successful and that the respondent would be prejudiced by Ms Hinton's absence. On the latter point, the tribunal investigated which parts of Ms Hinton's evidence was in dispute, and discovered that there was very little, if any, relevant to remedy that the appellant wished to challenge. Mr Salter then suggested that as the statement had not been signed, it might not be a witness statement at all. He suggested that the remedy could only be challenged by way of further appeal unless the tribunal would allow an out-of-time review, adding to the respondent's costs. The application was resisted by the claimant, who stated that she was ready to proceed and did not want to delay further.
9. The tribunal adjourned to consider its decision on the application. When the hearing resumed, the Employment Judge announced that the application had been refused. The reasons, which were explained at the hearing, were as follows: The tribunal had considered its discretion within the terms of, the overriding 'objective to deal with the case justly, but had decided that it was in the interests of justice to proceed with the case expeditiously, as previously ordered. This was already an old case when liability was decided in the Claimant's favour in March 2008, and the remedy hearing had already been adjourned once due to the respondent's failure to comply with the initial order. In the further order of 25 June 2008, the parties had been warned that no, 'further postponement would be, granted unless there were exceptional unforeseen circumstances (paragraph A5) and at paragraph B5 reference had been made to the tribunal's letter of 9 June 2008, which had reminded the parties that the Tribunal expected full compliance with its order.
10. The Tribunal had considered Ms Hinton's sickness, but considered that in reality her evidence could take matters very little further, and that little of any significance in her statement appeared to be in dispute. Ms Hinton, an HR professional, had given sworn evidence at the liability hearing and in the circumstances the tribunal was happy to receive an unsigned witness statement which had clearly been prepared by the respondent's solicitors on the basis of taking a proof of evidence from her: there was no suggestion that the statement was in draft. The Tribunal was well able to decide what weight to give this evidence.
11. The Tribunal had considered Swansea v Honey, but did not find that it assisted Mr Salter's submissions. Paragraph 36 (which is in any event obiter) refers to facts of that particular case, where a tribunal was criticised for not adjourning a remedy hearing when there had been a review application based on "a clear case of apparent bias". It is not considered that this point is of more general application to postponing remedy hearings when there has been an application to the EAT on a point of law unrelated to bias.
12. As for adjournment or postponement not causing unfairness to the claimant, the tribunal disagreed. The claimant had resisted the application, was ready to proceed, and had a legitimate expectation of the hearing going ahead, rather than the tribunal's judgment on remedy being delayed yet further and having to return for a further remedy hearing.
13. As for the application to the EAT, this was not sufficient reason to adjourn, in the face of the strong reasons to proceed. , There were various possible outcomes arising from the preliminary hearing at the EAT. If the matter proceeded to a full hearing in 2009, this was not likely to be before March or April, and might be later. It would be open to the respondent to apply to join any appeal against remedy. .
14. As for cost to the respondent, the Tribunal noted that one possibility arising from the EAT application could be that the respondent would face extra costs in the future in challenging any remedy finding, but that did not necessarily follow, and did, not justify an adjournment which might be well into 2009. It could be presumed that the tribunal would be able to deal appropriately with any developments which might occur, consequent upon the EAT hearing. As far as the costs of today were concerned, the parties were in any event present for the remedy hearing and ready to proceed."
"When the parties were called back in, the Employment Judge announced that the tribunal had decided that it was prepared for the claimant to give oral evidence regarding any injury to feelings, but that it would not permit her to read out her notes whilst giving evidence. It was not in the interests of justice to allow a witness to give sworn evidence by reading out notes relating to a matter which should be within her knowledge, and she had previously been able to give oral evidence without demonstrating any significant memory problems. The matter of injury to feelings had been identified as early as 29 February 2008 and reflected in the tribunal's orders of 20 March 2008 and 25June 2008, and reference to injury to feelings had been made in the claimant's schedule of loss. The respondent would have been expecting evidence to be called regarding injury to feelings. The claimant was unrepresented, and under the overriding objective it was in the interests of justice to allow her to call evidence on what both parties had agreed was an issue in the case. Although this should have been contained within her witness statement, this was a comparatively minor breach of the tribunal's order. The Employment Judge pointed out that it would [be] open to Mr Salter to make submissions, in due course, as to the weight to be attached to this evidence."
"Injury to feelings:
30. The discriminatory acts, started at the meeting of 13 July 2006, when Mr Dingsdale indicated an unwillingness to accommodate the claimant's suggested amendments, and continued at the further meeting on 17 August 2006, when Mr Dingsdale decided to reject arranging for adjustments himself, and referred the appellant's case to the Principal, with a recommendation for dismissal (see the reasons for the liability judgment). The main discriminatory act was the decision to dismiss on 7 September 2006, which also involved a decision not to make adjustments. Thus the discrimination was spread over a period of several weeks, albeit the earlier meetings were comparatively minor, more in the way of background to the main act, However, the earlier acts were not without some significance, as the Principal's decision clearly gave considerable weight to the recommendations and reasoning provided' by Mr Dingsdale, as the relevant Director.
31. The tribunal does not consider that the claimant's evidence of injury to feelings is particularly strong, and has carefully considered Mr Salter's submissions on the point. The claimant was given the opportunity to provide clear evidence, and what was provided remained a little opaque. The tribunal has also noted that the claimant has repeatedly referred to earlier incidents, pre-dating by many months the events which the tribunal has ruled are relevant to, her successful DDA claim. The tribunal has ignored all such irrelevant evidence and submissions by the claimant, which are not capable of amounting to injury to feelings for the purposes of this claim.
32. However, the claimant stated in oral evidence, "My confidence has been completely shattered by their actions". When the Employment Judge asked her to clarify which actions she was referring to, she replied, "Making it impossible to continue and then dismissing me". The tribunal is satisfied that this was a reference to the discriminatory acts. The tribunal also sees this in the context of her existing fragile mental and physical condition, and the evidence given throughout both liability and remedy hearing which made it clear that she was, and remains, upset by the way she has been treated. Although the tribunal has not taken the medical report of 19 September 2008 to comprise direct evidence of injury to feelings, it is certainly consistent with a conclusion that feelings were injured. Although Mr Salter suggested that the medical evidence was not relevant, because it was clear that the claimant was already suffering from pre-existing conditions, rather than these being triggered by the respondent's acts, the Tribunal considers that this is putting it too strongly. The Tribunal notes that in its penultimate paragraph, the medical report states that,
'Mrs Walters became very stressed with the situation at work which affected her both mentally, worsening her anxiety and depression, and physically, causing difficulty to control her blood pressure. The work cloud also significantly increased the pain of her fibromyalgia.*"
(*It should be noted that fibromyalgia was not diagnosed until 14 August 2006.)
33. The Tribunal considers that, as a starting point, it would have been likely that the discrimination suffered would have injured the claimant's feelings. In all the circumstances, it is satisfied that when she referred to the acts completely shattering her confidence, this is sufficient to establish that her feelings were injured.
34. The Tribunal has considered the case of Vento v Chief Constable of West Yorkshire Police (No:2) [2003] IRLR 102, although it considers that some adjustment should be made to the suggested bands to allow for the effects of inflation. In assessing the level of compensation for injury to feelings, the tribunal has focussed on the discriminatory acts. This is clearly not a top band case. Mr Slater suggests that if feelings were injured (which he disputes), the right level would be at the lower end of the lower bracket. The claimant's schedule of loss suggested £7,500. The Tribunal considers that while the discrimination was towards the less serious rather than the more serious end of the spectrum, it was more than just an isolated or one off occurrence. It would be wrong to label it as 'serious', albeit the consequence was dismissal and this should not be trivialised. In all the circumstances, the Tribunal considers that the right level is on the boundary between the lower and middle bands of Vento.
35. The Tribunal has determined that an award of £5,500 for injury to feelings properly reflects the degree of seriousness."
"23. With respect to Holiday Pay, the amount of any sums owed (including what sums may be payable regarding bank holidays).
24. With respect to Disability Discrimination:
24.1. Whether feelings were injured and if so what sums may be due in compensation;
24.2. Financial losses flowing from the discrimination;
24.3. The extent to which the Claimant mitigated her loss and can be expected to mitigate any ongoing loss.
25. With respect to unfair dismissal:
25.1. The amount of the basic award;
25.2. If compensation is payable at all in view of the finding as to disability, the same issues referred to above at 8.2 and 8.3, and any, Polkey reduction.
25.3. Issues arise concerning the, interpretation of Section 123 of the Employment Rights Act 1996 in the light of the chronology events in 2006·and the fact that the claimant was no longer in receipt of salary before the date of dismissal. Similar issues may arise in respect of compensation for discrimination.
26. Mr Slater also confirmed that he did not wish to go behind the method of calculating loss of pension which had been set out in the claimant's schedule of loss, and agreed with her that this should be the method adopted by the tribunal. He also announced that he would be arguing that no compensation for loss of earnings would be payable under unfair dismissal and the disability discrimination claim."
"27.4. At the time of dismissal, the claimant was awaiting a gynaecological operation. She underwent this in November 2007. She had a hospital appointment 6 weeks after the operation in order to investigate whether it had been successful. It had not been, and she was told that she would be booked in for a further appointment. The second operation took place on 8 May 2007. She was told 6 weeks later that it had been successful.
27.5. The claimant was fit to return to work on Monday 9 July 2007, two months after her operation. She had not been fit to return to work from before her dismissal until this date. The tribunal draws the inference from the evidence before that the claimant would have been sufficiently fit to work 50% of a full-time working week. This situation, has not changed between 9 July 2007 and the date of the remedy hearing on 13 November 2008.
27.6. The claimant made some efforts to find alternative work (this is considered below, in the tribunal's conclusions). She did not ask the respondent for a reference. She looked for local jobs similar to her previous one. She looked for jobs on-line. She did not read the Times Educational Supplement. She did not register with an agency. She had not applied for jobs save for two (see below). She had contacted potential employers in response to advertisements, but was told that there was no possibility of part-time work. She has not done any freelance or self-employed work. She had not looked at jobs outside education. She believes that 'any job is not necessarily better than no job'. She did apply for a school learning assistant job, but was told that she was overqualified.
27.7. The claimant was not successful in finding a job commencing before the date of the remedy hearing, but has received a recent job offer, which she has accepted. She will commence a new job as a Research Fellow at Southampton University on a computing project. This involves a 16-hour week for three months."
"Financial Loss:
37. As for loss of earnings, the claimant provided, a calculation in her schedule of loss based on loss of a full-time salary from before the date of dismissal, and suggested that the tribunal should award compensation for future losses amounting to a further six months' wages. The respondent had failed to comply with the order to produce a counter-schedule. In oral submissions, Mr Salter argued that as the claimant's income had ceased at the time of dismissal, no compensation was payable. He correctly pointed out that compensation was calculated on tortious principles (Section 17A(3) of the Disability Discrimination Act 1995). He referred to GAB Robins (UK) Ltd v Triggs [2007] UKEAT/0111, BAILII: [2007] UKEAT 0111_07_1306, and argued that the claimant could not claim on the basis of pre-existing illness. He also submitted that the claimant was not fit to work until July 2007, that it had never been part of her case that any adjustments should have been made then (rather than in January 2007) and therefore no compensation was payable at all. In the alternative, he submitted that the claimant had failed adequately to mitigate her loss after she was fit to work. The claimant asserted that she had managed to arrange a part-time job starting shortly, and had done her best to mitigate her loss.
38. The tribunal has accepted the medical evidence submitted by the claimant's GP. The tribunal accepts that as at the date of dismissal, there would have been a reasonable prospect of the claimant being fit to return in January 2007, as she had hoped. However, as her gynaecological operation of November 2006 was unsuccessful and had to be performed again May 2007, she was in fact not fit to return to work until July 2007. Although the medical evidence does not provide a date, the GP suggests that the claimant would have been fit two months after her successful operation. As the operation took place on 8 May 2007, the tribunal has taken the date of being fit to start work as being Monday 9 July 2007.
39. The tribunal has accepted the medical evidence that the claimant would have been fit to return to work part-time and that this situation has not changed since July 2007. There is no direct evidence as to what proportion of full-time hours the claimant would have been fit to work. Although her new job is only 16 hours per week, it was clear that this was a requirement of the job rather than the claimant's preference. However, during the meetings between the claimant and the respondent's management up to the date of dismissal, the discussion was based on coming back to work on half-time working hours. In the absence of any evidence suggesting other bases for working hours, the tribunal has drawn the inference that the claimant would have been fit to work for half a full working week from 9 July 2007 onwards, and that this situation had not changed as at the date of the remedy hearing.
40. The tribunal rejects the respondent's argument that no compensation for loss of earnings can be recoverable. Although the claimant's wages and sick pay had ceased by the date of her dismissal, had she returned to work she would have received the salary to which she was contractually entitled. Having concluded that the claimant would have returned to work on 50% of her previous full-time hours, the tribunal accepts that any loss of wages should be calculated on that basis. But for the respondent's decision to dismiss the claimant (which was for a reason which related to her disability), then she would still have been an employee on the date upon which she was fit to return to work, and therefore would have received wages from that date. The tribunal considers that the same approach should be taken with respect to the failure to make reasonable adjustments. Although, at the date of dismissal, January 2007 was the date suggested for a return to work, it could not have been known that, the autumn operation (which was known about) would be unsuccessful and that this would have had the effect of delaying the claimant's return to work for a further period. ·The tribunal's judgment as to liability should not be-read as meaning that the respondent's refusal to make reasonable adjustments can only have been applicable to a return to work in January 2007. The proper approach is to consider what adjustments would have been required at the time that the claimant would have been fit to return to work, and that date (as it turned out) was 9 July 2007. Although Mr Salter referred in passing to Polkey and King v Eaton (2), he did not seek to argue that there was a % chance of the claimant being fairly dismissed (or similar arguments under the DDA) at a later stage. The tribunal does not consider that these two cases are relevant to the analysis of the facts of this case on the argument that compensation should be recoverable for the period after January 2007.
41. The tribunal accepts that as the claimant was not fit to work and therefore unable to earn a salary between 7 September 2006 and 9 July 2007, there can be no evidential or legal basis to order that the respondent compensate her for loss of earnings during that period. Although there is some evidence that some symptoms of the claimant's existing medical conditions were exacerbated by the respondent's actions, there is no adequate evidence suggesting a causal link between the claimant's discriminatory acts and her being unable to work, Indeed, the only clear evidence was that the claimant could be expected to be fit two months after her gynaecological operation, a matter upon which the respondent's actions cannot reasonably be expected to have had any influence.
42. Mr Salter did not expressly address the tribunal on what credit, if any, should be given for the two months' pay in lieu of notice given to the claimant, if the tribunal awarded compensation for loss of earnings starting from a date after the two months would have expired. Ms Hinton's evidence confirmed the amounts paid on dismissal. The claimant did not mention this notice pay at all.
43. The tribunal has, however, considered the matter of how the pay in lieu of notice was treated, and has concluded that it would not be just and equitable to offset the sum against compensation for financial losses arising from loss of wages. Being pay in lieu of notice, it related expressly to the two months following the date of dismissal, a time when the claimant did not earn any wages, and a period for which the tribunal has not ordered that she be compensated. The tribunal considers that it is inappropriate to offset this sum against compensation for loss of wages from the period from 9 July 2007 onwards, and declines to do so.
44. The tribunal's general approach to financial losses is as follows. The claimant is entitled to compensation for ongoing financial losses from 9 July 2007 onwards, on the basis of earning 50% of the full-time wages she would have received had she still been employed by the respondent, subject to accounting for any income received, and subject to mitigating her loss.
45. The claimant received no income from 9 July 2007 until the date of the remedy hearing on 13 November 2008 save for certain state benefit.
46. The tribunal was not addressed as to what eligibility to annual leave the appellant would have had on return to work, but notes that had she returned to work on 9.July 2007, she would in any event have had long enough to take the majority of any leave owed before the end of the leave year, The tribunal considers that there is no basis for this to affect the approach taken to compensation.
47. As for mitigation of loss, the tribunal considers that the claimant should have started to look for employment, or at least have initiated the preparatory work, from the second half of June 2007, when she knew that her operation had been successful, and by 9 July should have been sufficiently fit to research possible jobs, make applications and attend interviews. The tribunal accepts that the claimant's task would have been made considerably more difficult as a result of being only able to work part- time, from potential employers knowing (or finding out during the selection process) that she was disabled, and from her previous record of being off work on long-term sick leave. The tribunal rejects the suggestion made by the claimant that she could not ask the respondent for a reference, and that this consequently inhibited her search for work. She never asked for a reference, and had no reasonable basis for concluding that the respondent would have refused to issue a factual reference setting out her experience. It might have referred to her being dismissed for long-term sickness, but the tribunal considers that this was information which the claimant could reasonably be expected to have supplied to future employers herself.
48. Notwithstanding the undoubted difficulties faced by the claimant in seeking work, the tribunal concludes that she did not try as hard as was reasonable to find paid part-time work. She did carry out research, and did contact potential employers, but was only successful in finding a computing-related job starting after the remedy hearing. The tribunal accepts from the evidence called by the respondent that during the relevant period there were advertisements for part-time jobs within commuting distance of the claimant's home in Fareham, which she would have been qualified to do. She was not aware of all these jobs, even though they were advertised in the Times Educational Supplement, a publication which she can reasonably be expected to have consulted. She did not register with an agency. She did not consider carrying out other jobs not requiring computing expertise, jobs requiring computing expertise but outside post-16 teaching, or until lately, jobs which were on a lower salary than she would received had she still been employed by the respondent college.
49. In all the circumstances, the tribunal considers that the claimant could reasonably have mitigated her loss by finding paid work in less than a year albeit it is quite likely that this might have initially been on a lower wage. The tribunal has concluded that the appropriate measure is compensation for financial losses based on lost of earnings of 50% of the full-time wage from the respondent, for one year from 9 July 2007. It follows that the period ended before the remedy hearing and that the respondent is not required to pay compensation for future losses."
The Appeal
1 – The Adjournment
2 - Injury to Feelings
3 - Payment in Lieu of Notice
4 - The Polkey Point
"Although Mr Salter referred in passing to Polkey, he did not seek to argue that there was a percentage chance of the Claimant being fairly dismissed (or similar arguments under the DDA) at a later stage."
