Appeal No. UKEAT/0552/10/JOJ
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
14 June 2011
Before
THE HONOURABLE
MR JUSTICE KEITH
MS K BILGAN
MR I EZEKIEL
LEEDS TEACHING HOSPITAL NHS TRUST APPELLANT
MR
P FOSTER RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
DISABILITY DISCRIMINATION – Reasonable adjustments
If there is a real prospect of an adjustment removing a disabled
employee’s disadvantage, that would be sufficient to make the adjustment a
reasonable one, but that does not mean that a prospect less than a real
prospect would not be sufficient to make the adjustment a reasonable one: Cumbria
Probation Board v Collingwood (UKEAT/0079/08/JOJ) and Romec Ltd v
Rudham (UKEAT/0069/07/DA) applied.
THE HONOURABLE MR JUSTICE KEITH
1.
The Claimant, Paul Foster, was employed by the Respondent, the
Leeds Teaching Hospital NHS Trust (“the Trust”), for many years in various
capacities, ending up as a senior security inspector in the Trust’s Security Department.
In 2006 his relationship with his line manager broke down, and from
18 October 2006 he was unable to work as a result of stress. He
never returned to work, and on 6 February 2009 he was dismissed on
the ground that a doctor in Occupational Health could not predict the
likelihood of his “situation” altering within the foreseeable future. Indeed,
Mr Foster himself accepted that he was not fit to return to work at that
time. Mr Foster’s complaints of disability discrimination and unfair
dismissal were upheld by an Employment Tribunal following a hearing in Leeds, and the Trust now appeals against those findings.
2.
The relevant facts which the Tribunal found were that shortly after
Mr Foster went on sick leave in October 2006, he raised a grievance
alleging that he had been bullied and harassed by his line manager,
Jim Merrick. It took some time for the grievance to be determined, and in
the meantime, Mr Foster was seen by Dr Thomas McGarry, a doctor
in Occupational Health. That was on 25 June 2007. Dr McGarry
confirmed that Mr Foster’s stress was the result of problems at work, and
that Mr Foster’s return to work would not be possible until those problems
had been resolved. He advised that attempts should be made to resolve them as
soon as possible, as Mr Foster’s ability to return to work would become
less likely as time went on. That prompted Mr Foster to express concern
about the time it was taking to determine his grievance, but he was told by
Bob Bilton, the Trust’s Deputy Head of Logistics, that his ill-health and
his grievance were separate issues, and nothing was done to discuss, or
otherwise address, the issues which were causing the stress which kept
Mr Foster from work.
3.
That remained the case after Mr Foster’s grievance was dismissed.
He was told about that on 27 September 2007. He was unhappy about
that, but he did not take his grievance to the next level of the grievance
procedure as he could have done, because he had been wrongly advised by his
trade union representative that there was “no right of appeal”. His concern
over where the dismissal of his grievance left his relationship with
Mr Merrick might not have mattered, because at a meeting on
8 January 2008 with Darryn Kerr, the Trust’s Director of Estates
and Facilities, Mr Foster’s trade union representative had thought that
Mr Kerr has reassured him that Mr Foster could be redeployed to
another department within the Trust with equal status and salary where he would
not be under the management of Mr Merrick. Accordingly, when
Mr Foster next saw Dr McGarry on 14 January 2008, he
confirmed that he was ready to return to work. Dr McGarry saw no medical
bar to that, although he thought that Mr Foster might still be vulnerable
to stress, and that it was possible that his symptoms might recur.
4.
Unfortunately, the promise of redeployment to a post outside the Security
Department which Mr Foster’s trade union representative thought had been
given by Mr Kerr did not materialise. The Tribunal did not decide whether
Mr Foster’s trade union representative had got the wrong end of the stick,
or whether Mr Kerr had changed his mind, but in a letter dated
24 January 2008 to Mr Foster’s trade union representative,
Mr Kerr was talking of Mr Foster returning to a role within
the Security Department. That was confirmed on 18 February 2008 when
Mr Bilton told Mr Foster that his redeployment to a post outside
the Security Department was not an option. The only two options which
Mr Foster was offered were either returning to the job he had had before
he had gone on sick leave, or to a job in the control room which would also be
within the Security Department at the appropriate banding for that job. It was
proposed that he would not be managed by Mr Merrick directly, even though
Mr Merrick was ultimately responsible for the management of both posts,
and to overcome that Mr Bilton proposed mediation between Mr Foster
and Mr Merrick.
5.
Mr Foster told Mr Bilton that neither of these options were
acceptable, but Mr Bilton’s position remained that redeployment to another
department was not possible. He confirmed that at a meeting a couple of weeks
later on 6 March 2008. In essence, Mr Bilton’s position was
that Occupational Health had confirmed that Mr Foster was fit to return to
work. That meant that Mr Foster was fit to perform either of the roles
which he had been offered within the Security Department. Mr Bilton saw
the allegation of bullying and harassment as a separate issue which had previously
been decided, and which Mr Foster could take forward in such manner as he
chose. Mr Foster’s position was that what was preventing him from
returning to work within the Security Department was the stress he would
experience if he returned to either of the jobs within the Security Department
which Mr Bilton had offered him. Mr Bilton maintained his stance,
and he warned Mr Foster that if Mr Foster did not feel fit enough to
return to work, the Trust would have no option but to proceed to what
Mr Bilton described as “a hearing for capability on the grounds of ill-health”.
6.
Following that meeting, Mr Foster saw Dr McGarry again.
Dr McGarry’s advice to the Trust was that although management thought that
the dismissal of Mr Foster’s grievance should be regarded as having
resolved the issues of bullying and harassment which Mr Foster had raised,
that was not how Mr Foster saw it. For Mr Foster, rightly or
wrongly, the problem still existed. So long as Mr Foster thought it still
existed, his return to work would not be possible until he was redeployed, in
effect, to a role outside the Security Department.
7.
Dr McGarry’s advice was not taken. Management’s view was the same
as Mr Bilton’s. Since Mr Foster’s allegations of bullying and
harassment has not been accepted, there was no reason to redeploy him.
Management took the view that Mr Foster’s stress had been catered for
sufficiently by the offers made to him by Mr Bilton, and management
therefore recommended that he be dismissed if his ill-health prevented him from
taking up either of the posts which had been offered within the Security Department.
8.
That recommendation was considered by Michael Taylor, the Trust’s
Head of Estates – Operational Services, at a hearing on
16 June 2008. He regarded his remit as being limited to whether
Mr Foster’s ill-health prevented him from returning to work, and not
extending to what the reasons for his absence from work were. As it was, he
did not accept the recommendation that Mr Foster should be dismissed. He
thought that Mr Foster should be put on the Trust’s redeployment register
for three months to see if suitable alternative employment was available. No
other steps were taken by the Trust to address Mr Foster’s ongoing
concerns. He was told that he could pursue them, but that would be outside
what the Tribunal described as “the current process”. Mr Foster did not
raise a further grievance as he had come to lack any confidence that it would
achieve anything.
9.
Unfortunately, Mr Foster was not redeployed in the next three
months. A “redeployment opportunity”, as the Tribunal described it, had arisen
during that period, but Mr Foster’s ill-health had prevented him from
pursuing that. However, by the end of September 2008, Mr Merrick had
left the Trust’s employment, and Dr McGarry advised that in the light of
that, Mr Foster’s phased return to work within the Security Department was
a feasible option. But by then management had begun to have serious
reservations about whether Mr Foster would be well enough to return to
work in the Security Department even with Mr Merrick’s departure, and their
stance was that if Mr Foster returned to work within the Security Department,
it should provisionally be for three months so that his progress could be
assessed.
10.
Mr Foster’s return to work within the Security Department was
considered by Mr Taylor at a reconvened hearing on
10 October 2008. At that hearing, Mr Foster confirmed that he
felt well enough to return to work within the Security Department, though he
wanted to speak to his GP first. He wanted to discuss his ongoing concerns
with Mr Taylor, but Mr Taylor told him that that was outside his
remit. Mr Taylor decided that Mr Foster’s return to work within the Security
Department could start again on 20 October 2008, and that the
position would be reviewed in three months’ time. If Mr Foster wanted to
raise his ongoing concerns, he would have to do so with his line manager,
whoever that was.
11.
Mr Foster did not return to work on 20 October 2008. He
wanted to raise his ongoing concerns with his line manager, but he had been
told that that would require, as the Tribunal put it, “his consent to undergo
the process from the very beginning”, which we take to mean that he would have
to raise a fresh grievance. He was seen by Dr McGarry again on 11 November 2008,
and this time Dr McGarry reported that Mr Foster was unfit for work,
and that was when he said that he could not predict the likelihood of this “situation”
altering within the foreseeable future. By then, Mr Foster had lost all
confidence in the Trust, and he was not sure that there was anything the Trust
could have done to enable him to return to work. In the light of
Dr McGarry’s latest report, and Mr Foster’s own acceptance that he
was unfit to return to work then, Mr Taylor decided, following a
reconvened hearing on 6 February 2009, that Mr Foster’s
employment should be terminated. He did not consider any options other than
Mr Foster’s dismissal.
12.
Mr Foster appealed against his dismissal. The hearing took place on
27 October 2009. He did not claim that he was fit to return to work,
or that the Trust could do anything at that stage to facilitate his return. He
was looking for compensation and for the managers who he regarded as
responsible for the situation in which he found himself to be held accountable
for their actions. Since an internal appeal against one’s dismissal is about
getting oneself reinstated or re-engaged, and since that was not what
Mr Foster was looking for – indeed, he was acknowledging that he was not
fit to return to work – it is difficult to see how the appeal panel had any
option but to dismiss his appeal. Indeed, the appeal panel said that the
decision to dismiss him was fair and reasonable in the light of the available
medical evidence. The panel thought that the period during which attempts had
been made to redeploy Mr Foster could have been extended, i.e. beyond
September 2008, but even if it had been extended by, say, three months,
the panel thought that it was unlikely that that would have made any
difference.
13.
However, pending the panel’s final decision, the chairman made some
comments about the way Mr Foster had been treated. There was evidence
that Mr Foster had been harassed. The delay of nearly a year in
investigating his complaints had been unacceptable. There had been a “failure
to manage the sickness absence”, and the attempt “to rigidly separate the
management of the sickness absence and his return to work from the
investigation of the grievance of bullying and harassment” had been “fatally
flawed”. Mr Foster could have been offered support, and adjustments could
have been made, without compromising that investigation.
14.
Those were the facts which the Tribunal found. It was conceded that at
all relevant times Mr Foster was disabled within the meaning of the Disability
Discrimination Act 1995 (“the Act”), and the Trust did not contend that it
did not know of his disability. The requirement which was said to have placed
Mr Foster at a substantial disadvantage in comparison with persons who
were not disabled – which section 4A(1) of the Act required to be established
if Mr Foster’s claim of disability discrimination was to succeed – was not
identified in the ET1. That did not matter provided that the requirement was
identified with sufficient clarity in the Tribunal’s judgment: see Environment Agency v Rowan
[2008] ICR 218 (Judge Serota QC presiding) at [27]. As it is,
Mr James Boyd for the Trust acknowledges that it was identified by
the Tribunal at the hearing, namely the requirement that Mr Foster could
only work in the Security Department, apart from the three months when he was
on the redeployment register, during which time he could have been redeployed
to a post outside the Security Department if a suitable one had become
available. Accordingly, what the Tribunal had to address on the claim for
disability discrimination was whether that requirement placed Mr Foster at
a substantial disadvantage in comparison with people who were not disabled. If
it did, the Trust was under a duty to take such steps as were reasonable in all
the circumstances of the case – i.e. what the Act calls “reasonable adjustments”
– to prevent the requirement having that effect. The question for the Tribunal
would then be whether the Trust had complied with that duty.
15.
The Tribunal found that the requirement placed Mr Foster at a
substantial disadvantage: his disability, i.e. his stress, was the result of
working within the Security Department, and he could only be expected to return
to work there once the factors which had caused his stress had been eliminated.
There was no chance of that being done because the Trust had never thought it
necessary to explore, as part of the process to get Mr Foster back to work,
what had caused his stress in the first place. Although the Tribunal could not
find that Mr Foster’s complaint that his treatment by Mr Merrick was
justified, the fact was that Mr Foster believed, rightly or wrongly, that
he had been treated badly, and it was not disputed that it was that which had
brought on his stress. It is almost too obvious to state it, which is probably
why the Tribunal did not state it, but the Tribunal must have thought that
people who were not disabled as a result of stress were not under the
disadvantage of having to work in a department which caused them stress. There
is no challenge to that finding.
16.
When it came to whether the Trust had complied with its duty to make
reasonable adjustments to prevent Mr Foster from being at the substantial
disadvantage which he was, the Tribunal decided that it had not. The
Tribunal’s reason was that an adjustment which could have been made was to put
Mr Foster on the redeployment register in January 2008. That is also
a finding which the Trust does not challenge. What it challenges is the
Tribunal’s finding that that would have been a reasonable adjustment to
make. The Tribunal found that it would have been a reasonable adjustment to
make (a) because Mr Foster believed that that was what Mr Kerr had
promised in January 2008, and (b) in the light of Dr McGarry’s advice
to the Trust in June 2007 and March 2008. The Tribunal noted that
even when Mr Foster was on the redeployment register between June and
September 2008, his ill-health had prevented him from pursuing one redeployment
opportunity, and that by November 2008 Dr McGarry was reporting that
Mr Foster was unfit for work. The Tribunal concluded, and this is the
finding which is challenged, that if Mr Foster had been put on the
redeployment register in January 2008, when Mr Foster said that he
was ready to return to work and Dr McGarry had confirmed to the Trust that
there was no medical bar to that, there would have been “a real prospect” (para.
41) or “a good prospect” (para. 42) of him returning to work if he had been
offered appropriate support at the time and the question of his dismissal for
his ill-health had been delayed, even if he was not fit to return to work later
in the year.
17.
In fact, there was no need for the Tribunal to go as far as to find that
there would have been a good or real prospect of Mr Foster being
redeployed if he had been on the redeployment register between January and
June 2008. It would have been sufficient for the Tribunal to find that
there would have been just a prospect of that. That is the effect of
what the Employment Appeal Tribunal (Judge McMullen QC presiding) held in Cumbria Probation Board v Collingwood (UKEAT/0079/08/JOJ) at [50].
That is not inconsistent with what the Employment Appeal Tribunal (Judge
Peter Clark presiding) had previously said in Romec Ltd v Rudham
(UKEAT/0069/07/DA) at [39]. The Employment Appeal Tribunal was saying that if
there was a real prospect of an adjustment removing the disabled employee’s
disadvantage, that would be sufficient to make the adjustment a reasonable one,
but the Employment Appeal Tribunal was not saying that a prospect less than a
real prospect would not be sufficient to make the adjustment a reasonable one.
When those propositions were put to Mr Boyd, he did not disagree with
them.
18.
The criticism of the Tribunal is that it was not open to it to make the
finding which it did about Mr Foster’s prospects of redeployment if he had
been on the redeployment register between January and June 2008. It is
claimed that it was not open to the Tribunal to conclude that Mr Foster
had proved any facts from which the Tribunal could have concluded, in the
absence of any evidence from the Trust, that there was a good or real prospect
that he would have been redeployed if he had been on the redeployment register
between those dates. That submission tracks the language of section 17A(1C) of
the Act, which sets out the burden of proof in cases of alleged disability discrimination,
suitably modified to relate to the facts of the case.
19.
It is acknowledged that the Trust was a sizeable undertaking with a
large workforce, but for the Tribunal to say that there was a good or real
prospect that Mr Foster would have been redeployed if he had been on the
redeployment register between January and June 2008 was, so Mr Boyd
argued, a finding at a high level of generality. In that context, the language
of the Employment Appeal Tribunal (Underhill J presiding) in HM Prison Service v Johnson
[2007] IRLR 951 at [90] is instructive.
“We are not to be taken as saying that it was incumbent on
either the Claimant, in advancing the case, or the Tribunal, in deciding it, to
identify a precise alternative posting, with every detail worked out. The
degree of specificity required would depend on the nature of the evidence and
the issues. In some circumstances a finding that there were ‘plenty of other
jobs’ which a Claimant could have been moved to might be sufficient (at least
for liability purposes). But it is necessary that that finding be made. The
Tribunal never made a clear finding that … there was … another suitable job
elsewhere in the Prison Service or the Home Office to which the Claimant could
reasonably have been transferred ...”
20.
It is important to remember that what the Tribunal was having to do was
to decide whether in January 2008 when Mr Foster could have been put
on the redeployment register but was not, there was a chance that a post
suitable for him and at his level of seniority would have become available.
The Tribunal was having to assess that chance as it would have appeared in
January 2008. That assessment was prospective, not retrospective. That
is apparent from the language of section 18B(1)(a) of the Act, which provides:
“In determining whether it is reasonable for a person to have to
take a particular step in order to comply with a duty to make reasonable
adjustments, regard shall be had, in particular, to ‑
(a) the extent to which taking the step would prevent the effect
in relation to which the duty is imposed ...”
In that sense, the Tribunal made a clear finding of the type
which was lacking in Johnson. It did not find that there were “plenty
of other jobs”, because that would only have been known at the end of the
period, but it did find that there was a good or real prospect that a suitable
job would be available.
21. As it was, the Trust was a significant employer in the
area. The Tribunal found that it had about 15,000 employees, 5,000 or so
of whom worked at the location where Mr Foster worked. This was an
undertaking of some size. On those facts alone, it was, we think, open to the
Tribunal to find that there was a good prospect, let alone a prospect, that a
post at Mr Foster’s level outside the Security Department would have become
available, and would have been suitable for him, in the first six months of
2008.
22.
In the circumstances, the burden of proving that there was not a good
chance of such a post becoming available during that period passed to the
Trust. That is entirely understandable since the likelihood of the
availability of other posts for Mr Foster would have been far easier for
the Trust to assess than Mr Foster. In the event, the Trust did not prove
that because it called no evidence on whether posts at Mr Foster’s level
and suitable for him could have been expected in January 2008 to become
available in the next six months, and failing that, on whether any such posts
had in fact become available during that period. In that connection, the fact
that a redeployment opportunity had arisen during the three months when
Mr Foster was on the redeployment register is not insignificant. It
follows that the appeal against the finding of disability discrimination must
be dismissed.
23.
We turn to the claim of unfair dismissal. The Tribunal found that no
reasonable employer would have rigidly separated consideration of
Mr Foster’s absence from work from the reasons for that absence. No
reasonable employer would have prevented Mr Foster from making
representations about the reasons for his absence from work at the hearings at
which Mr Taylor was considering whether Mr Foster should be dismissed
for his absence due to ill-health. And no reasonable employer would have
dismissed Mr Foster before fully considering the reasons for his absence
from work, and whether, when it was in possession of the full facts, there was
any alternative to dismissal.
24.
Before turning to the challenge to those findings, we should say that
the Trust says that Mr Foster’s original grievance was not limited to his
complaint that he had been bullied and harassed by Mr Merrick. He had
made other complaints as well: a complaint that he had not been supported by
Mr Merrick’s line manager; a complaint regarding variations in
Mr Foster’s contractual hours as a result of the Working Time Regulations
and the effect which those variations had had on his pay; a complaint about how
previous allegations he had made about fraudulent behaviour on the part of some
of the Trust’s employees had been resolved; a complaint that he had not been
consulted over the effect on him of a substantial reorganisation within the NHS
nationwide; and a complaint about how Mr Merrick had harassed him in
connection with that reorganisation. Mr Foster’s original grievance has not
been included in the bundle for use on this appeal, and we therefore cannot say
whether his original grievance incorporated all these additional complaints, though
the letter of 27 September 2007 has been included in the bundle, and
that shows that two complaints were considered over and above Mr Foster’s
complaint that he had been bullied and harassed by Mr Merrick. They were
a complaint that he had not been supported by Mr Merrick’s line manager (which
was dismissed), and a complaint that he had not been paid the sums properly due
to him for weekend working (which was upheld).
25.
However, we do not consider that it is necessary for us to address those
complaints, because it is plain that the Tribunal thought that Mr Foster’s
ill-health was due to his perception of how he had been treated by
Mr Merrick. That was the topic which he had wanted to raise with
Mr Taylor. That is sufficient for the Trust’s purposes when it comes to
the basis on which the Trust challenges the Tribunal’s finding that
Mr Foster’s dismissal was unfair. The Trust’s point is that it should not
have been criticised by the Tribunal for divorcing Mr Foster’s absence
from work from the reasons for that absence, when the reasons for his absence
from work were stress supposedly brought on by the way he was treated by
Mr Merrick, when his grievance about that had been rejected, when he had
not taken that grievance to the next level of the grievance procedure, and when
he did not pursue a fresh grievance, even though he was claiming that the
harassment of him was continuing even when he was absent from work.
26.
In our judgment, that criticism of the Tribunal ignores two things.
First, it ignores the point that even though the allegations which
Mr Foster had made against Mr Merrick had been rejected,
Mr Foster believed, rightly or wrongly, that he had been bullied and
harassed by Mr Merrick, and that it had not stopped. The link between his
absence from work and the reasons for his absence still remained because
Mr Foster believed that it was the treatment of him at work which had
caused his stress, and had made it impossible for him to return to the Security
Department while Mr Merrick was still there.
27.
Secondly, the criticism of the Tribunal ignores the core point which the
Tribunal had made when it was considering the claim of disability
discrimination. Mr Taylor may have had little option but to dismiss
Mr Foster in February 2009 in the light of Dr McGarry’s view in
November 2008 that he could not say that there was any likelihood of
Mr Foster being able to return to work within the foreseeable future, and
Mr Foster’s own acceptance at the hearing before Mr Taylor in
February 2009 that he was unfit to return to work. But there was, as the
Tribunal found, a good chance that it would not have got to that stage in
February 2009 if Mr Foster had been placed on the redeployment
register in January 2008. It was the Trust’s failure to do that which had
set in train the events which resulted in Mr Foster’s dismissal in
February 2009. So when the Tribunal said that no reasonable employer
would have dismissed Mr Foster before fully considering the reasons for
his absence from work, we think that one of the things which the Tribunal was
referring to was that the Trust had not acted reasonably in dismissing
Mr Foster before considering why he had been absent from work since
January 2008, as his absence from work since then would have
been attributable to the Trust’s failure to place him on the redeployment
register if a suitable post would have become available for him between January
and June 2008.
28.
We do not think that such a finding could be regarded as perverse. It
follows that the appeal against the finding of unfair dismissal must be
dismissed as well.
