THE HONOURABLE MR JUSTICE KEITH
1.
The Claimant, Mrs Glenda Rodriguez-Noza, comes from the Philippines. She was employed by the Respondent, the Abertawe Bro Morgannwg University
Health Board (“the Board”), as a staff nurse at the Princess of Wales Hospital,
Bridgend (“the hospital”), from 9 August 2001 following a recruitment drive in
the Philippines. On 31 July 2009, she gave notice of her resignation from her
employment, and her employment came to an end on 3 September 2009. By the time
of her resignation, Mrs Rodriguez-Noza had brought two separate claims in the employment
tribunal. The first, which she brought on 15 December 2008, was a claim of
race discrimination, and the second, which she brought on 3 April 2009, was
another claim of race discrimination together with a claim of disability
discrimination. Following her resignation, Mrs Rodriguez-Noza brought a third
claim in the employment tribunal. That was on 22 October 2009. That claim too
consisted of claims of race and disability discrimination, but it also included
a claim of unfair dismissal on the basis that her resignation had amounted to
her constructive dismissal. Her claims were heard by an employment tribunal (Employment
Judge John Thomas presiding) at Cardiff over five days in November 2010, but
all her claims were dismissed.
2.
Mrs Rodriguez-Noza filed a notice of appeal with the Employment Appeal
Tribunal. It was drafted by herself. She is not a lawyer, and it was not
drafted as crisply as a lawyer would have drafted it. It referred only to what
Mrs Rodriguez-Noza described as “discrepancies” in the dates given in the tribunal’s
judgment, and to her complaint that the proceedings in the tribunal had not
been recorded. The only other thing which it did was to attach a copy of the
written submissions she had made to the tribunal. It did not set out any
grounds of appeal by reference to any errors of law which the tribunal was
supposed to have made. Not surprisingly, Judge McMullen QC decided that the notice
of appeal did not contain any grounds of appeal which had any reasonable
prospect of success, and in accordance with rule 3(7) of the Employment Appeal
Tribunal Rules, no further action was to be taken on the notice of appeal.
3.
Mrs Rodriguez-Noza was dissatisfied with that, and she asked for the
question whether her appeal should proceed to be reconsidered at a hearing.
The hearing took place before Judge David Richardson on 10 August 2011. On
that occasion, Mrs Rodriguez-Noza was represented by Ms Nabila Malik under the
ELAAS Scheme. Ms Malik formulated a number of grounds of appeal, but Judge
Richardson did not think that any of them were arguable with the exception of
two possible grounds of appeal relating to the claim of disability
discrimination. Accordingly, apart from those two possible grounds, he ordered
that no further action be taken on any of the original grounds of appeal or on
any of the new grounds of appeal formulated by Ms Malik, but in order to decide
whether the two possible grounds relating to the claim of disability
discrimination were arguable, he directed that the employment tribunal be asked
two particular questions. We shall come to those questions later.
4.
Following the receipt of the tribunal’s answers to those questions,
Judge Richardson ordered that there be a preliminary hearing of the appeal.
The preliminary hearing took place on 10 October 2012 with Judge Peter Clark
presiding. By then amended grounds of appeal had been drafted by Ms Malik. They
related to the two possible grounds of appeal identified by Judge Richardson at
the previous hearing, but at the hearing presided over by Judge Clark, Ms Malik
sought to add additional grounds of appeal. She was not permitted to do so.
However, the Employment Appeal Tribunal decided on that occasion that the two
possible grounds of appeal identified by Judge Richardson should proceed to a
full hearing. This is the Employment Appeal Tribunal’s judgment following that
hearing.
5.
There are a couple of things we should add before we consider the merits
of the appeal. Mrs Rodriguez-Noza is now representing herself again. In a
letter she wrote to the President of the Employment Appeal Tribunal, she said
that she had “discharged” Ms Malik as “it appears she is not on my side”. The
reason why she was writing to Langstaff P was because the Registrar had refused
her request to be allowed to rely on fresh evidence on the appeal and to re-amend
her grounds of appeal. She had also requested the Registrar to order the
attendance of various witnesses, and to order the Nursing and Midwifery Council
to respond to her request that a number of nurses who had been her colleagues
at the hospital be investigated for their fitness to practice. Langstaff P
considered those requests, but he refused them all.
6.
Mrs Rodriguez-Noza has complained about the way members of staff at the
Employment Appeal Tribunal have dealt with her correspondence. Those complaints
were considered by the Registrar and rejected. She also requested the
Registrar to order that the appeal be stayed or the hearing fixed for today be
postponed so that she could prepare a bundle of documents which included the
fresh evidence she wanted to call as well as her correspondence with the
Employment Appeal Tribunal and its staff. That application was also refused by
the Registrar on the basis that the documents she wished to include in the
bundle had not been before the employment tribunal, and were not relevant to
the only two grounds of appeal which the Employment Appeal Tribunal would be
addressing. The consequence is that the only bundle of documents which has
been prepared for the appeal is the bundle of documents prepared by the Board’s
solicitors.
7.
We should add that Mrs Rodriguez-Noza yesterday repeated her request for
a postponement of today’s hearing on the same grounds as before. She added
that she would not be able to come to today’s hearing because there was
yesterday not sufficient time for her to book her transport and accommodation.
That renewed application for a postponement of today’s hearing was placed
before me yesterday. I did not think that a postponement of today’s hearing
should be granted. Mrs Rodriguez-Noza could have made arrangements for coming
to London before yesterday, and she had had ample time to prepare a bundle of
documents incorporating the documents she wished the Employment Appeal Tribunal
to see, provided, of course, that it was appropriate for the Employment Appeal
Tribunal to look at them. In the event, Mrs Rodriguez-Noza has come to today’s
hearing, and we have been pleased to see her.
8.
With that introduction, we turn to the appeal itself. Although the two
grounds of appeal cover relatively narrow points, it is necessary to put them
into their factual context. Mrs Rodriguez-Noza initially worked on surgical ward
7 before moving to surgical ward 8 in 2003. There was evidence which the tribunal
evidently accepted of her very high clinical standards, her dedication, her
caring nature and her popularity with her colleagues. However, by 2006 Mrs
Rodriguez-Noza was starting to have time off work with stress and depression.
She had a month off in July 2006 which she attributed to the improper refusal by
the ward sister to authorise the scrubbing of a cubicle which had been occupied
by a patient infected with MRSA. Mrs Rodriguez-Noza had further time off from
16 July 2007. When she returned to work the following November, she did not
work on surgical ward 8 but worked first on the urology ward and then on the orthopaedic
ward. She was then off work from 15 February 2008, and she never returned to
work again. Her sick pay ended on 19 October 2008.
9.
In the meantime, Mrs Rodriguez-Noza had raised a formal grievance on 30
May 2008 in which she claimed that she had been harassed, bullied and
victimised. It was not considered under the grievance procedure (which was for
the resolution of grievances which could be resolved relatively quickly and
informally) but under the Dignity at Work Policy, because it was thought that
if her grievance was upheld, it might result in disciplinary action being taken
against those members of staff who Mrs Rodriguez-Noza had complained about. As
it was, her grievance was rejected in September 2008, as was a further
grievance which she had raised in February 2009 complaining of the handling of
her earlier grievance. She appealed against the rejection of her later
grievance. She was told on 27 July 2009 that that appeal had been dismissed,
and it was a few days later that she submitted her resignation.
10.
In its decision, the tribunal considered each of the incidents in which
according to Mrs Rodriguez-Noza she had been treated as she had because of her
ethnicity. Not only was there the incident relating to the scrubbing of the
cubicle. There were incidents relating to a disagreement between Mrs
Rodriguez-Noza and the ward sister about the care plan for a patient with pancreatitis,
the posting of Mrs Rodriguez-Noza’s name on a message board, the use of coarse
language about her by a registrar, the cancellation of a review into her
performance, the instructions she received on occasions to serve food to
patients and the unavailability of counselling for her. The tribunal also dealt
with her complaints about how her grievances had been handled, about the
Board’s delay in dealing with them, and about the wards which she had worked in
after she returned to work in November 2007, her complaint being that she had
not been given enough work to do. For the most part, the tribunal found that
the Board had treated Mrs Rodriguez-Noza properly and fairly. The tribunal
rejected the claim that she had been harassed, bullied and victimised. The tribunal
was critical of the fact that her name had been put on the message board in
connection with a minor mistake concerning blood transfusion policy, but it
found no evidence of a racial motive for that. If there was anything which
could have been described as less favourable treatment, it had not been on racial
grounds. When it came to her claim of unfair dismissal, the tribunal found
that there had not been any fundamental breach of her contract of employment,
saying that where there had been elements of discord between Mrs Rodriguez-Noza
and other staff, that had arisen because of what the tribunal described as Mrs
Rodriguez-Noza’s “misperception of the ‘rough and tumble’ of professional life”.
11.
Against that background, we turn to the claim of disability
discrimination. The facts relied upon in Mrs Rodriguez-Noza’s ET1s were as
follows. In April 2007, Mrs Rodriguez-Noza went to see Annette Sage, the senior
nurse manager in the Board’s Occupational Health Department. She told Ms Sage
that she felt bullied, harassed and discriminated against. Ms Sage diagnosed
her as suffering from work-related stress, and said that she would review Mrs
Rodriguez-Noza at four to six weekly intervals “to provide support for her to
deal with her current stress levels” and would refer her for counselling.
After she went on sick leave on 17 July 2007, she was examined by Dr Mansouri,
a specialist registrar in occupational medicine. He recommended a gradual
return to work with an “increased level of support and professional supervision”.
Following her return to work in November 2007, Dr Mansouri said that Mrs
Rodriguez-Noza was fit for work provided that the “relationship difficulties”
at work were reasonably resolved, and he repeated her need for an “increased
level of support and professional supervision”. Prior to 15 February 2008 when
she went on the prolonged period of sick leave from which she did not return to
work, Mrs Rodriguez-Noza did not receive, so she said, the counselling which
she was to be referred for. Dr Mansouri saw her again on 20 February 2008.
Following that consultation, he said that she thought that his advice about the
provision of support and supervision had not been followed.
12.
Mrs Rodriguez-Noza’s claim of disability discrimination was formulated
in her second ET1 as follows:
“On 20 March 2008 [Mrs Rodriguez-Noza] was referred by her GP to
the Community Mental Health Team. [Mrs Rodriguez-Noza] has developed work-related
stress and depression. This condition has lasted over 12 months and has had a
substantial adverse affect on her ability to carry out normal day to day
activities. [Mrs Rodriguez-Noza] therefore believes she is a disabled person
as defined by the Disability Discrimination Act (DDA) 1995. [Mrs
Rodriguez-Noza] believes the [Board] has discriminated against her in breach of
the DDA by failing to make reasonable adjustments - she considers that
providing the increased level of support and supervision recommended by Dr
Mansouri would have been a reasonable adjustment.”
The reference to reasonable adjustments was a reference to
section 4A(1) of the 1995 Act which required an employer to take such steps as
were reasonable to prevent any provision, criterion or practice which the
employer applied from placing any disabled worker at a substantial disadvantage
in comparison with persons who were not disabled.
13.
The tribunal dealt with Mrs Rodriguez-Noza’s claim of disability
discrimination in the following way. In para. 6 of its judgment, it said:
“It is accepted by the [Board] that [Mrs Rodriguez-Noza] was a
disabled person from May 2008. Following a discussion between [Mrs
Rodriguez-Noza] and the Panel, it was agreed that so far as the disability
claim is concerned, all matters were open to challenge and that it was not
simply a claim limited to reasonable adjustments.”
The tribunal’s conclusion on the claim of disability
discrimination appears in paras. 60 and 61 of its judgment, which read as
follows:
“60. The disability claim is one in which [Mrs Rodriguez-Noza]
must be the subject of a provision criterion or practice [applied] by the [Board]
which placed [Mrs Rodriguez-Noza] at a substantial disadvantage in comparison
with persons who are not disabled. The statutory provisions are found at Section
[4A] of the Disability Discrimination Act 1995.
61. In these circumstances the employer is to take such steps as
is reasonable in all the circumstances to prevent that. It has not been
identified for us what the condition provision or criterion [sic] is
that Mrs Rodriguez-Noza says has been breached and which then gives rise to the
duty. All we can see is that there was a need for her as an absent employee to
eventually return. In any event we are satisfied that even if the duty had
arisen, which we do not think it did, all the reasonable adjustments were
made. There were very, very regular health reviews almost monthly up until the
date of her resignation. There was an extended period allowed to Mrs
Rodriguez-Noza for her to remain an employee though unpaid, and finally there
was the continuing encouragement and availability of counselling to her.
Against that background we know having read the evidence that it was Mrs
Rodriguez-Noza who was saying I cannot come back to work yet. In those
circumstances we do not think that there has been failure, even if there had
been a duty arising to take the appropriate steps.”
So although the tribunal had said in para. 6 that it would not
treat Mrs Rodriguez-Noza’s claim of disability discrimination as “limited to
reasonable adjustments”, that is the only feature of the claim of disability
discrimination which it addressed. However, that cannot be relied upon as a
ground of appeal, because the Employment Appeal Tribunal expressly decided on
10 October 2012 that it could not be.
14.
The questions which Judge Richardson wanted the tribunal to answer were
set out in para. 1 of his order of 10 August 2011. First, did the tribunal
reach any conclusion about the date on which Mrs Rodriguez-Noza became a
disabled person for the purposes of the Disability Discrimination Act 1995?
If so, what were the tribunal’s conclusions and why? Secondly, why did the tribunal
find, as it said at the beginning of its judgment that it had, that no duty had
arisen to make reasonable adjustments?
15.
The employment judge responded to the first question by saying that the tribunal
had found that Mrs Rodriguez-Noza had been a disabled person from June 2008
since that was what the Board had conceded, but not before then: although Mrs
Rodriguez-Noza had been suffering from a “mental impairment”, namely work-related
stress, which was what Dr Mansouri had said her absence from work from 16 July
2007 had been attributable to, she had not established that it had had a
substantial adverse effect on her day-to-day activities. The employment judge
noted that Dr Mansouri had said that following her return to work, Mrs
Rodriguez-Noza had enjoyed her work, having undertaken the full range of duties
without any reported problems. He also referred to a report in the trial
bundle dated 31 March 2008 from Dr Stephen Madelin, which recorded “a history
of fluctuating amounts of anti-depressant drugs”, and noted an inability on Mrs
Rodriguez-Noza’s part to work because in his view her distress and unhappiness
about working for the Board was so deeply ingrained. Finally, the employment judge
referred to a later report from Dr Mansouri dated 10 November 2008 in which he
said that Mrs Rodriguez-Noza
“… has been diagnosed with a long standing common mental health
problem for which she receives appropriate medical treatment through her family
Doctor and is also under the care of other support services. Her perceived
work related issues that you are aware of have had an impact on her mental
wellbeing. Regrettably her symptoms have not altered significantly over the
past few months and I am unable to add anything to her treatment plan that can
be valuable.”
The employment judge ended by saying:
“We concluded that even though there was minimal evidence of
substantial adverse effect on her day to day activities, we accepted that,
looking back from [Dr Mansouri’s report of 10 November 2008] over a
period of ‘past few months’ … by June 2008 … there must have been a point reached
over the passage of time from 16th July 2007, when her condition
would have satisfied the statute definition and whilst it was a matter for the
Tribunal’s judgment, we accepted the concession made by the [Board].”
16.
The employment judge’s answer to the second question is far more
opaque. The answer was this:
“The finding by the panel of no duty arising on the part of the [Board]
in Paragraph 61, we accept cannot be correct. The provision criterion or
practice applied by the [Board] was that [Mrs Rodriguez-Noza] was required to
return to work. Any application for a review on that issue could only have
been allowed. Our thinking was whether or not the [Board] had in fact
discharged its duty (see … below).”
What the employment judge then went on to do was to purport to
answer what he thought were other questions which the Employment Appeal
Tribunal had asked. In fact, the Employment Appeal Tribunal had not asked any
further questions. Para. 2 of Judge Richardson’s order of 10 August 2011 had
simply said:
“Except insofar as it concerns the questions – (1) [f]rom what
date [Mrs Rodriguez-Noza] was a disabled person (2) whether the [Board] made
reasonable adjustments], [t]he appeal remains subject to Rule 3(7) of the
Employment Appeal Tribunal Rules 1993 and is in effect dismissed.”
Wrongly believing that the tribunal was being asked whether it
had found that the Board had made reasonable adjustments, the employment judge
went to say this:
“Seeking to take care not to give evidence in these responses we
took into account the following medical reviews of the 18th
September 2008, 30th September 2008, 21st October 2008,
20th November 2008, 18th December 2008, 2nd
February 2009, 13th March 2009, 9th April 2009, 21st
May 2009 and the 22nd June 2009 as being genuine and practical
attempts in accordance with the medical advice of Dr Mansouri to reintegrate [Mrs
Rodriguez-Noza]. Further, this reflected the kind of attitude shown by the [Board]
in considering the graduated return on reduced hours with an offer of a choice
of wards. This of course being prior to our finding of the date of
disability.”
17.
The first ground of appeal identified by Judge Richardson and then by
Judge Clark was whether the tribunal had erred in law in simply accepting the
Board’s concession that Mrs Rodriguez-Noza had been disabled from May 2008
without investigating whether she had been disabled before then. The second
was whether the tribunal had misdirected itself as to what provision, criterion
or practice might have placed Mrs Rodriguez-Noza at a substantial disadvantage
in comparison with persons who were not disabled, and whether the tribunal had
erred in law in concluding, if it did so conclude, that the Board had taken
such steps as were reasonable to prevent whatever provision, criterion or
practice had been applied to her from having that effect.
18.
We can dispose of the first ground of appeal relatively quickly. Anyone
reading the tribunal’s judgment would have been forgiven for thinking that the
Tribunal had simply accepted the Board’s concession that Mrs Rodriguez-Noza had
been disabled from May 2008 without investigating whether she had been disabled
before then. The period during which she was disabled was dealt with in para. 6
of its judgment, and what the tribunal said there speaks for itself. However,
in our opinion, what it said in response to the first question it was asked
makes it clear that the tribunal had in fact found that Mrs Rodriguez-Noza had
only been disabled since May 2008. There is a discrepancy between the date
given in para. 6 of the judgment (May 2008) and the date given in the answer to
the first question (June 2008), but nothing turns on that. It looks as if, but
for the Board’s concession that Mrs Rodriguez-Noza had become disabled by June
2008, the tribunal may well have found that she had not even become disabled by
then, because there was what the tribunal described as “minimal evidence of [a]
substantial effect on her day-to-day activities”. But in the light of the employment
judge’s answer to the first question the tribunal was asked, there can be no
doubt that, having investigated the matter for itself, the tribunal had found
that Mrs Rodriguez-Noza could only be proved to have become disabled in 2008.
Having read with care the points which the employment judge made when answering
the first question the tribunal was asked, we think that that was a conclusion
which was reasonably open to the tribunal to reach.
19.
The more difficult question relates to the second ground of appeal. The
first issue there is whether the tribunal made any finding about whether
the Board had applied a provision, criterion or practice to Mrs Rodriguez-Noza
which was capable of having placed her at a substantial disadvantage in
comparison with persons who were not disabled, and, if so, what that provision,
criterion or practice was. The tribunal said in para. 61 of its judgment that
Mrs Rodriguez-Noza had not identified any “condition provision or criterion” [sic]
which she said had been “breached”, which we take to mean that she had not
identified any provision, criterion or practice which had placed her at a
substantial disadvantage in comparison with persons who were not disabled and
whose effect the Board had had to take steps to prevent.
20.
When one looks at the various ET1s, we are inclined to agree. Mrs
Rodriguez-Noza made it clear what steps she was saying the Board had had to
take, namely referring her for counselling and providing her with an increased
level of support and supervision to neutralise the substantial disadvantage
which she had been placed under. But she never said what it was which had put
her under that substantial disadvantage. Having said that, though, it was the tribunal
itself which identified in para. 6 of its judgment what it thought the
provision, criterion or practice had been, namely the “need for [Mrs
Rodriguez-Noza] as an absent employee to eventually return”, or to put it in
the way in which the employment judge did when answering the Employment Appeal
Tribunal’s questions, “[t]he provision criterion or practice applied by the [Board]
was that [Mrs Rodriguez-Noza] was required to return to work”. We do not know
what the evidence was about Mrs Rodriguez-Noza being required by the Board to
return to work. We had been under the impression that once she had become
disabled, she had not been required to return to work during her last period of
time off work, especially after her sick pay had ended. After all, her
employment came to an end when she resigned following the dismissal of her
appeal against the rejection of her second grievance rather than because she
was dismissed for not being able to return to work. However, since the tribunal
found that she had been required to return to work, and since the Board does
not challenge that finding, we have to proceed on the assumption (which is, of
course, favourable to Mrs Rodriguez-Noza) that it is correct.
21.
In approaching the case in that way, we have not overlooked the
following finding in para. 44 of the tribunal’s judgment:
“There was never any question of her not being able to
return to Ward 8 or to return to Ward 8 on reduced hours, or whatever Ward on
reduced hours. It was her choice. There was no insistence from the
[Board] as to how the return to work should be managed.”
But it is apparent from paras. 41-43 of the tribunal’s judgment
that that finding was made in the context of Mrs Rodriguez-Noza’s return to
work in November 2007, which was many months before the tribunal was to find
that she had become disabled. At the very least, that is a possible reading of
what the tribunal was saying. If that is right, it does not undermine the
tribunal’s express finding, in the context of a claim of disability
discrimination when that disability began in May or June 2008, that she had
been required to return to work following her disability.
22.
The next question is whether the tribunal made any finding about
whether the requirement on Mrs Rodriguez-Noza to return to work had placed her
at a substantial disadvantage in comparison with persons who were not
disabled. The Board’s case, as succinctly articulated by Mr Julian Allsop, is
that the tribunal must have found that the requirement on her to return to work
had not placed her at such a disadvantage. If it had, there would have been a
duty on the Board to take reasonable steps to prevent the requirement from
having had that effect. For the tribunal to have said that the Board had not
been under such a duty, the tribunal must have concluded that the duty had not
been triggered, and that can only have been because it had concluded that the
requirement had not placed Mrs Rodriguez-Noza at a substantial disadvantage in
comparison with persons who were not disabled. Such a conclusion would have
been justified because, to quote from para. 13 of Mr Allsop’s skeleton argument, “[a]n absent employee who did not share her
disability but who had been absent from work on sick leave … [when Mrs
Rodriguez-Noza had been absent] would have been similarly affected”. That was
said to have been borne out by the decisions of the Employment Appeal Tribunal
in Royal Bank of Scotland v Ashton [2011] ICR 632 and Newcastle
upon Tyne Hospitals NHS Foundation Trust v Bagley [2012] EqLR 634.
23.
We do not agree. In the employment
judge’s answers to the Employment Appeal Tribunal, the employment judge himself
said that the tribunal had been wrong to say that there had been no duty on the
Board to take reasonable steps to prevent the requirement on Mrs Rodriguez-Noza
to return to work from placing her at a substantial disadvantage in comparison
with person who were not disabled. The employment judge acknowledged that the tribunal’s
“thinking” was whether the Board had discharged that duty, which can only have
meant that the tribunal had found that such a duty had been owed to Mrs
Rodriguez-Noza by the Board. This was not a case of the tribunal impermissibly
going beyond that which the Burns/Barke procedure permits, which
is limited to clarifying what it said and, if necessary, supplementing or
providing reasons for what it had previously said. The employment judge was
not saying in his answer that the tribunal was then saying what it had
not intended to say before, namely that although it had originally thought that
the Board had not been under a duty to take reasonable steps to prevent the
requirement on Mrs Rodriguez-Noza to return to work placing her at a
substantial disadvantage when compared with people who were not disabled, it
had changed its mind, and it had subsequently thought that it had been under
such a duty. The employment judge was saying that the tribunal had always
thought that the Board had been under a duty to take those steps, but that the
tribunal had expressed itself badly, and what more accurately reflected its
thinking at the time of the promulgation of the original decision was that the
Board had been under a duty to take such steps, but that it had
discharged that duty. At the very least, that is a possible reading of what
the tribunal was doing. The difficulty for us is that the tribunal did not then
go on to say what the substantial disadvantage was which Mrs Rodriguez-Noza
faced in comparison with persons who were not disabled. That is important
because it is only when you know what that substantial disadvantage was that
you can assess whether such steps as the Board took to prevent the requirement
on Mrs Rodriguez-Noza to return to work having that effect were reasonable.
24.
That brings us to the next issue which is whether the tribunal made any
findings about precisely what steps the Board had taken to prevent the
requirement on Mrs Rodriguez-Noza to return to work placing her at a
substantial disadvantage when compared with persons who were not disabled, and
whether those steps were reasonable. That again is something which we just
cannot tell. We know from the answer which the employment judge gave what
medical reports the tribunal took into account. We know that the tribunal
found that those reports showed that there had been “genuine and practical
attempts … to re-integrate” Mrs Rodriguez-Noza into the workplace. We also
know that the tribunal thought that those attempts had been consistent with the
consideration shown to Mrs Rodriguez-Noza about her working fewer hours and
working on wards which enabled her to work in a less pressurised environment.
But these observations do not tell us what the tribunal found had been the
steps which the Board had in fact taken to get her back to work once she had
become disabled in May or June 2008. The tribunal did not say what the “genuine
and practical attempts” were. We cannot tell what they were from the various
medical reports which the Tribunal referred to because no copies of any of them
have been provided to us. We acknowledge, of course, the finding which the
Tribunal made in its original decision in para. 61 of its judgment:
“There were very, very regular health reviews almost monthly up
until the date of her resignation. There was an extended period allowed to Mrs
Rodriguez-Noza for her to remain an employee though unpaid, and finally there
was the continued encouragement and availability of counselling to her.”
But monitoring her ability to return to work (which was what
conducting “very, very regular health reviews” on her must have been about) and
keeping her on the staff, if not on the payroll (which was what the extended
period being allowed to her for her to remain an employee although unpaid must
have been a reference to) did not amount to steps taken to get her back to
work. Indeed, the tribunal did not say how the continuing encouragement and
availability of counselling was made to her, nor did it expressly deal with her
case that what Dr Mansouri had said she needed was an increased level of
support and professional supervision.
25.
Moreover, even it were possible for us to identify what steps the tribunal
had found had been taken by the Board to prevent the requirement on her to
return to work placing her at a substantial disadvantage when compared with
persons who were not disabled, we have not been able to see the basis on which
the tribunal found that such steps had been reasonable. The tribunal must have
come to the conclusion that those steps were reasonable, of course, for it to
have dismissed the claim of disability discrimination, but the absence of any
reasons for its conclusion that such steps as the Board took were reasonable means
that we are not able to assess for ourselves whether it was open to the tribunal
to reach the conclusion which it did.
26.
So what course should we take? We really have only two options. The
first is to refer the case back to the tribunal with a series of specific
questions designed to tease out the information which is not apparent either
from the tribunal’s judgment or the previous answers it has given. With some
reluctance, we have decided that that would not be an appropriate course for us
to take here. If our reading of the answers given by the employment judge is
correct, the tribunal has accepted that it expressed itself incorrectly in its judgment
when it said that the Board had not been under any duty to take reasonable
steps to prevent the requirement it had imposed on Mrs Rodriguez-Noza to return
to work from placing her at a substantial disadvantage when compared with
people who were not disabled. It would, with the advantage of hindsight, have
been helpful for the tribunal then to volunteer what it had found on (a) what
the substantial disadvantage for Mrs Rodriguez-Noza had been, (b) what steps
the Board had taken to neutralise its effect, and (c) what the basis had been
for the tribunal’s finding that such steps as the board had taken had been
reasonable. But we can understand why, when requested to answer questions put
by the Employment Appeal Tribunal, an employment judge is anxious to ensure
that no information is volunteered over and above that which the tribunal has been
expressly asked for. The worry here, though, is that the employment judge
attempted to volunteer the information in (b) and (c), but did not do so
sufficiently clearly to enable us to form a view about the proper outcome of
this appeal. Having attempted to deal with the issues which the case raised
twice, first in its judgment and then by answering the questions it was asked
by the Employment Appeal Tribunal, we do not think that the tribunal should be
asked to do so for a third time. Apart from anything else, our sense is that
the parties may have less confidence that the tribunal will have considered the
case with the scrupulous fairness and the intellectual rigour which is required
of it. We have no doubt, of course, that that is how the tribunal would
attempt to approach any further questions asked of it, but we are less sure
that the parties would see it that way.
27.
In the circumstances, the only alternative is to allow the appeal against
the dismissal of Mrs Rodriguez-Noza’s claim of disability discrimination, and
to remit the claim to a differently constituted tribunal to consider that claim
afresh. By way of reassurance for Mrs Rodriguez-Noza, we confirm that it will
be open to her and the Board to call such evidence as they wish on her claim of
disability discrimination provided that the evidence is relevant, and the tribunal
will not be bound by any of the findings made by the earlier tribunal in
connection with the claim, including the tribunal’s finding on when she became
disabled. Of course, the hearing of the claim of disability discrimination
will not last anything like as long as the previous hearing because the only
claim to be considered will be the claim of disability discrimination. We
greatly regret the inconvenience and expense which this will put the parties to,
but in our judgment that is what fairness requires.
28.
We direct that a transcript be prepared of this judgment for three
reasons. First, Mrs Rodriguez-Noza will need to be able to study why we have
allowed her appeal. Secondly, it is important that the tribunal which decided
the case knows why the appeal was allowed so that it approaches similar cases
more appropriately in the future. Thirdly, the tribunal which hears the case
afresh will need to know what Mrs Rodriguez-Noza’s claim is now limited to and
the issues which it will have to address on her claim of disability
discrimination.
