Appeal No. UKEAT/43/01

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

AT THE TRIBUNAL
On 28 August 2001

Before

THE HONOURABLE LORD JOHNSTON

MISS S B AYRE

MISS A MARTIN

JOHN DEXTER CALLAGAN						APPELLANT

GLASGOW CITY COUNCIL						RESPONDENTS

Transcript of Proceedings
SEAL DATE 11.9.01

JUDGMENT

	APPEARANCES

For the Appellant	Mr A Philp, Solicitor
Of-
Messrs Ross Harper
Solicitors
Sun House 
58 West Regent Street
GLASGOW   G2 2QZ

	
For the Respondents	Mr I D Truscott, Queen’s Counsel
Instructed by-
Glasgow City Council
Legal Services
City Chambers
George Square
GLASGOW   G2 1DU

LORD JOHNSTON:

1.	This is an appeal at the instigation of the employee against the decision of the Employment Tribunal dismissing his application both in respect of allegations of disability discrimination in terms of the Disability Discrimination Act 1995 (“the Act”) and unfair dismissal.

2.	The background to the matter is that the appellant was continuously employed by the respondents from 11 January 1993 until his dismissal on 3 September 1999.  He held the position of Residential Childcare Worker within their Social Work Department.

3.	In 1995 the appellant alleged that he had been the victim of an assault by an inmate of the Home where he worked and he alleged a further incident occurred in 1996 when he had been involved with a physical assault by another inmate.  These incidents imposed strain upon the appellant and he went off work.

4.	Thereafter the sickness record of the appellant seriously deteriorated giving rise to concern to the extent that he was given a verbal warning in 1996 for failing to follow reporting absences procedures.

5.	In April 1997 the respondents wrote to the appellant expressing concerns as to his absence record and offering certain meetings in order to try and assist the matter.  The Tribunal records that the appellant did not co-operate nor did he continue to follow the correct reporting procedures as far as absences were concerned.  He received a written warning there anent in November 1997.  Thereafter the appellant’s work attendance record remained poor but the respondents continued to make efforts to try and ascertain whether he was fit for work and what work he could do.  In due course, the appellant involved a trade union official on his behalf but nothing seems to have come of that particular involvement.  Eventually, after the appellant had failed to attend further meetings in 1999, the appellant was effectively given an ultimatum that unless he attended a meeting to discuss the position, his employment position was in jeopardy.  On 14 September 1999 the respondents wrote to the appellant referring to his current period of absences, his failure to co-operate with the department and, given his apparent inability to return to work, his employment was being terminated with effect from 3 September 1999.  The appellant did not appeal against that decision.

6.	The appellant’s medical problems were featured in various reports and documents but it appeared generally that he was suffering from a combination of stress and depression.  What is important, however, is that the findings of the Tribunal were such, that as at the date of the termination of his employment, he was not fit to return to work nor was there any suggestion as to when he might be likely to do so.

7.	Against that background, the Tribunal first considered whether or not it was established the appellant suffered from an impairment which met the definition of disability in terms of the legislation.  They found that the test was met and the respondents accepted this position taking no cross-appeal in that respect.  Accordingly, having determined that the applicant is a disabled person within the meaning of the legislation, the question for determination was whether or not discrimination was established.  The detriment incurred by the appellant was his dismissal and, accordingly, the Tribunal then proceeded to consider the questions they were required to answer.

8.	They go on as follows:

“In the case of Clark –v- Novacold 1999 IRLR 318 the Court of Appeal provided important guidance as to the meaning of discrimination under the Act.  The effect of the Court’s decision is to make it easier for a disabled person to establish less favourable treatment as there is no longer any need to identify an able-bodied competitor who has or would have been treated differently.  Shortly stated the Court pointed out that the definition of ‘Disability Discrimination’ in terms of Section 5 (1) is fundamentally different to the definitions of direct Sex and Race Discrimination laid down in the Sex Discrimination Act 1975 and the Race Relations Act 1976.  A comparison is not necessary.  Whether discrimination has occurred turns on the answer to the following four questions:-

(1)	why was the disabled person treated in the way that he or she was?  In the present case there is little doubt that the answer to that question is because the applicant was off work due to illness.
(2)	Did that reason relate to his or her disability?  It is clear that the reason for the applicant’s absence did relate to his disability
(3)	If it did, was he or she less favourably treated than someone to whom that reason did not or would not apply?  It is obvious that if the applicant had been at work and able to carry out the main functions of his job, he would not have been dismissed.
(4)	If he or she was discriminated against was the treatment nevertheless justified?  It is apparent that for the foregoing reasons the applicant was discriminated against.

The onus then rests with the employer to justify the dismissal.  According to Section 5(3) treatment is justified, if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.  In the case of Baynton-v- Saurus General Engineers Ltd 1999 IRLR 604 it was held that in applying the test of justification the Employment Tribunal must carry out a balancing exercise between the interest of the disabled employee and the interest of the employer.  In the case of:
O’Neill –v- Symm & Co Ltd 1998 IRLR 233
It was held that it is necessary for an employer to know that a person is disabled, or at least to know that the person has the material features of disability, to be liable for disability discrimination.  However, subsequently in the important case of:
	H J Heinz Co Ltd –v- Kendrick 2000 IRLR 144, 
helpful guidance was given on the approach to be taken to employers’ knowledge of disability. The EAT upheld the Tribunal decision that the terms of Section 5 (1) (a) did not require the employer to have knowledge of the disability as such.  The correct test for determining whether treatment was related to disability was objective and did not depend on the subjective view of the employer.  If it was otherwise there would be difficulties in establishing that there had been discrimination in cases involving employers who failed to recognise or acknowledge the obvious.  It is now clear that if an employer is aware, either directly from the employee, or, through a medical advisor, that the employee’s condition could potentially be the result of a disability, that knowledge would be sufficient to provide the employee with protection under the Act.  However, whether or not discrimination is actually established will depend on whether or not the employee is disabled within the meaning of the Act.  In the case of Heinz, (Supra) the Employment Appeal Tribunal, also considered the question of justification and the threshold for establishing justification under Section 5 (3).  The Court held that in view of the statutory language of Section 5 (3), which provides that treatment, is “unjustified” (rather than “can be” or “maybe justified”) if the reason for it is both material and substantial to the circumstances.  Treatment must be taken to be justified in the case of direct discrimination if the requirements of materiality and substance were made out.  In the present case the reason given for the applicant’s dismissal relates to his prolonged period of absence.  Even at the date of his dismissal it was not known when he would be fit enough to resume employment.  The Tribunal also noted that the Code of Practice suggests that it would not be justified to dismiss a disabled employee who has “little more” sick leave than other employees are allowed or whose productivity is “very little” and no more than others.  The Tribunal is satisfied that another employee who did not suffer from a disability but who had such a prolonged period of absence through sickness would also have been at similar risk of dismissal.

However, before reaching a decision as to whether or not the Respondents have succeeded in establishing the defence of justification it is necessary for the Tribunal to consider whether the duty of making appropriate adjustments applies.  Section 6 of the Act imposes a duty on an employer to make adjustments.  The duty is important as an employer cannot justify less favourable treatment of a disabled person, in circumstances where there has been without justification, a failure to make reasonable adjustments, unless it can be shown that the treatment was justified even if the duty had been met.  (Section 5 (5).  As brought out in the case of Clark (Supra) the unjustified failure to meet the duty is itself an act of discrimination.  In the present case one of the matters complained of by the applicant was the alleged failure by the Respondents to make adjustments.  It is unnecessary to rehearse the terms of Section 6 at length as the applicant’s sole complaint in this regard was an alleged failure by the respondents to provide him with part-time work.

The Tribunal noted that following various meetings with the applicant, Mr McCaw, had prudently taken the time to write setting out what matters had been discussed.  It was his evidence that the applicant at no time ever asked for a part-time post.  Other witnesses called on behalf the respondents supported him.  There was no evidence before the Tribunal that the letters sent by Mr McCaw were challenged by the applicant or Mrs Robertson.  On this issue where there was a conflict of evidence the Tribunal had no hesitation in concluding that the applicant had not requested part-time employment.  Indeed, had he done so we are satisfied that his request would have been accommodated without undue difficulty.  As suggested by Ms Morris discussion is a two way process.  If a successful outcome is to be achieved input is required from both parties.  It seemed to the Tribunal that the respondents demonstrated a genuine willingness to meet with the applicant, and, consider various options that might assist him in returning to work his health permitting.  Conversely, and even allowing for the applicant’s incapacity, had he been better motivated, in the opinion of the Tribunal, he could have done more to discuss the situation with the Respondents and keep them better informed of his wishes. We would add that even if part-time employment had been asked for by the applicant, and, made available by the respondents, it could only have been attempted if the applicant was well enough to resume his employment albeit initially in a restricted capacity.  The applicant’s own evidence did not suggest that he was well enough to have returned to work even in a part-time capacity – which was not so very different from a phased return – and would at least have retained his salary grade.  For the reasons stated the Tribunal unanimously concluded that the treatment of the applicant was justified.  Accordingly, his complaint brought under the Act must be dismissed.”

9.	The submissions to us were substantially as recorded by the Tribunal but a number of authorities were referred to in the hearing as follows:-

Baynton v Saurus General Engineers Ltd [1999] IRLR 604
H J Heinz & Co v Kendrick [2000] IRLR 144
Quinn v Schwarzkopf Ltd [2001] IRLR 67
Morse v Wiltshire County Council [1998] ICR 1023
Fu v London Borough of Camden [2001] IRLR 186
Clark v TDG Ltd t/a Novacold [1999] IRLR 318
Jones v Post Office [2001] IRLR 384
British Gas Services Ltd v McCaull [2001] IRLR 60
Ms Veronica Cosgrove v Messrs Caesar & Howie EAT/1432/00

10.	In the final analysis, the issue to be determined by this Tribunal was very narrow, it being accepted that the Tribunal had applied its mind to the right questions set out on page 16 of the decision which we have recorded including a finding of discrimination.  The sole argument before us, therefore, turned on the issue of justification in terms of section 5(3) of the Act which, paraphrasing, requires the Tribunal to be satisfied that the reason or reasons for the discriminatory act being justified are both material and substantial in the circumstances.  A useful analysis of this section is to be found in the judgment of Lady Justice Arden in Jones supra.  From that case, we consider that there requires obviously to be a causal connection between the discriminatory act and the justifying circumstances which must be material in the sense of relevant while substantial means simply more than de minimis.  It is important to note from the Jones case that the justification need not depend upon the Tribunal being satisfied that all possible protection has been given to the employee.  We refer particularly to paragraph 43 of the decision.

11.	It is also important to note, in our opinion, given that the discriminatory act relates to treatment, that is to say, how the employer treats the employee, knowledge of disability is not necessarily an essential element.  Accordingly, in so far as this Tribunal may have suggested in Quinn v Schwarzkopf supra that justification can never occur if the employer is ignorant of the fact of disability at the relevant time, that goes too far.  That case was primarily concerned with an attempt by the employer to claim justification ex post facto which had not featured at the time of the relevant discriminatory act which was in fact a dismissal.  Obviously the fact the employer did not know that disability exists might affect the justification issue but does not preclude it.  It follows that we do not consider that Quinn assists the appellant in this case.  What matters therefore is to analyse the treatment meted out by the employer.  In this case this was dismissal which can be a discriminatory act (Morse supra) but the reason for the dismissal in this case as far as the employer was concerned was the sickness record, failure to respond by correct reporting procedures and, more importantly, the failure substantially to respond to the employer’s various attempts to try and accommodate the employee to the extent of retaining his employment.  It is also very important to bear mind that upon the evidence found proved by the Tribunal at the time of dismissal the employee was not fit for work nor was it known when he was likely to be so.

12.	In these circumstances we consider that the Tribunal reached a correct decision on this issue, the reasons for dismissal being as set out and are both material and substantial and are directly related to it.  In this respect therefore justification is made out.

13.	The Tribunal however went on quite rightly to consider the questions raised by section 6 of the Act in relation to reasonable adjustment and this was really the nub of the appellant’s position before us, namely, that the employer should have offered part-time work to accommodate the appellant and by failure to do so they had not complied with section 6.  That in turn led to a breach of section 5 which in turn led to the dismissal.  So ran the argument.

14.	The difficulty about this approach, is that upon the particular facts of this case, although the appellant asserted before the Tribunal that he had asked for part-time work and had been refused it, his evidence in that respect was not accepted and, indeed, was expressly disbelieved, the version of the employer being preferable to the Tribunal, namely, that the issue of part-time working had never arisen.  On that basis we do not consider against the particular facts of this case, that there was any duty on the part of the employer, ex proprio motu, to offer part-time working against the background of the sickness record and absence record and also the fact that the appellant was not fit for any form of working at the relevant time.  It is also highly significant to our mind that if the appellant had co-operated properly with the various efforts made by the employer to accommodate him, the question of part-time working might well have arisen and might, for all we know, have been the solution.  In this respect therefore we consider the appellant was to some extent the author of his own misfortune and certainly the circumstances do not in this particular case create a duty on the part of the employer in relation to the question of part-time working in the context of reasonable adjustments.  We therefore accept the reasoning of the Tribunal in this respect.

15.	With regard to the appeal against the finding rejecting the claim for unfair dismissal, we have no hesitation in accepting the reasoning of the Tribunal against the background which we have set out in the context of justification.  Indeed it might almost be perverse to hold that the decision to dismiss in the relevant circumstances was not at least a reasonable response open to the employer.  We recognise the submission that the whole situation must be looked at in the context of the actual illness or disability but that does not detract in this particular case in our view from both the reasons for justification and the reason for dismissal, which were established to the satisfaction of the Tribunal.

16.	In these circumstances this appeal will be refused.