Appeal No.	 EAT/359/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 March 2002
Judgment delivered on 19 April 2002

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR B V FITZGERALD MBE
MR B GIBBS

MRS S FARLEY	APPELLANT

THE PRISON SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR GARY MORTON
(of Counsel)
Instructed By:
Messrs Pattinson & Brewer
Solicitors
1-2 Bridge Street
York Y01 1DD	
For the Respondent	MR ANDREW HOGAN
(of Counsel)
Instructed By:
The Treasury Solicitor
Queen Anne’s Chambers
28 Broadway
London SW1H 9JS	

MR JUSTICE HOLLAND:

1.	This is an appeal from the decision of an Employment Tribunal sitting at Lincoln, which decision together with Extended Reasons was sent to the parties on the 5th February 2001.  The issue is disability discrimination.  The decision was that Mrs. Sharifa Farley as Applicant had not been the subject of unlawful discrimination by her erstwhile employers, the Prison Service, contrary to Section 4(2) Disability Discrimination Act 1995 so that her complaint to that effect was dismissed.  She appeals.

The Appellant

2.	Mrs. Farley is aged 47.  Since 1986 she has been a victim of ME, that is, she is a victim of chronic fatigue syndrome.  This condition was not the subject of specific definition in the evidence put before the Tribunal, but by way of a report of the 17th November 2000 provided by an independent expert, Dr. Stephen Conway, it is apparent that this is a condition that is variable in terms of symptoms: at times wholly disabling, at other times with no functional significance.  When it is disabling the condition impacts adversely upon mobility, upon the capacity to lift or carry, and upon memory and concentration.  The condition is permanent and she is in receipt of a Disability Living Allowance for life.

3.	Of particular importance for present purposes is the advice of Dr. Conway to the effect that, for a victim of this syndrome, minor ailments can have an enhanced effect in terms of symptoms and of the period necessary for such to abate.

Unsatisfactory Attendance Procedures

4.	For employees of the Prison Service, Conditions of Service include what are described as Unsatisfactory Attendance Procedures.  These are centred upon the mandatory ‘Trigger Point’: “Action under the following procedures can be initiated only when a member of staff has incurred 7 days or more sickness absence over a 6 month period in more than one period of absence.”  What is triggered is a graded series of warnings (Oral, First Written and Final Written) and dismissal, subject to appeal.

5.	Chronology

a.	25th April 1997.  Mrs. Farley applied in writing for a post as a part time administrative assistant with the Service at Lincoln Prison.  By way of her application form she represented herself as disabled and identified the nature of her disability as ME.  She added, “I can no longer work full time permanently within a highly pressurised sales environment.  However my disability no longer has any practical effect on my ability to perform the duties required for this vacancy.”  Elsewhere she answered the question “any other illness or disease?”  With the response “Yes, ME – but I have learnt to cope with it and not overdo things.  There have been no relapses since 1995.”

b.	23rd June 1997.  She was appointed to this post on a probationary basis.

c.	7th July 1998.  Nine days absence during the preceding six months through three absences triggered the application of the Unsatisfactory Attendance Procedure - each absence being self-certified with gastric infection or food poisoning cited.  She was seen by the EO, Inmate Administration, Jane Charles, and given the first stage Oral Warning, which warning was confirmed in a letter of the 9th July.  This letter includes “You explained that as an ME sufferer your recovery rate was slower than the average person and you asked if this would be taken into consideration.  I told you that whilst sympathetic to your condition, the criteria for sick monitoring applied to all staff.”

d.	10th February 1999.  Her appointment was confirmed after an extended probationary period.

e.	1st April 1999.  She was seconded to a full time position again as an administrative assistant but, at own request, she was allowed to ‘act up’ in the next, that is, higher grade.

f.	12th April 1999.  Mrs. Farley wrote to Mr. B. Harvey, Head of Management Services, complaining about the extension of her probationary period, in particular as an arguable breach of the Disability Discrimination Act 1995.  Her letter includes:

“The Sickness Monitoring management system would be classed as an ‘arrangement’, under the Act.  The trigger points place certain disabled persons, such as myself, at a significant disadvantage, in comparison to non-disabled staff, as we are more likely to incur sick leave, as a result of the nature of the disability.  Once we exceed the trigger point, we are subjected to additional management scrutiny – the fear of this often results in such people attending for work when not fully fit (as I have had to do) or, alternatively, having to take annual leave or accrued hours to cover time off.
I maintain that, had proper consideration been given to the nature of my disability and any adjustments required under Section 6 of the DDA, it would have been reasonable for the Prison Service to have agreed higher trigger points under the Sickness Monitoring system.  This, in turn, would have resulted in my attendance during the Probationary period being adjudged satisfactory and therefore, I would not have had my Probation extended.
For the future, I would ask that consideration is given to allowing a higher trigger point, (may I suggest an extra 5 days over that stated during a 6 month period) or, alternatively, discounting any absences relating to my disability from the calculations towards the trigger points.”

g.	7th May 1999.  Mr. Harvey replies:

“The trigger point you refer to is simply the minimum level at which formal action can be taken.  It is then for the relevant line manager(s) to consider what course of action is appropriate.  Paragraphs 11.7 – 11.11 of the Staff Handbook give further information about this.  
There is therefore no need to set a different trigger point on an individual basis and indeed it would be impracticable to do so, the need and scope for any allowance or adjustment will form part of the consideration of individual cases by line management.”

h.	6th July 1999.  Following a further period of sickness absence, there was another interview with Jane Charles:

“Started off by asking Sharifa how she was – she said that she still wasn’t feeling well and that her doctor had offered her a sicknote for a fortnight, which she turned down.  I told her that if the doctor said she was unfit to work that she shouldn’t be here and queried why she was.  She said that she was concerned that she would trigger a sick warning if she had any more time off and that she would rather be here feeling under the weather than have the additional stress of worrying about triggering a warning.
I explained why the sick monitoring was in place, at which point she brought up the fact that she felt as a registered disabled person, she should be treated differently – I explained that in my view this would be discrimination and that it was not up to me to decide whether she could have more sick leave before triggering a warning – I suggested that if she wanted me to get specialist medical advice from BMI that she could volunteer for a medical, she said that there was no way she would agree to a medical because she had to have many medicals in the past.  I explained that although there was no pressure to have one at this point, unless she felt it would help her case, that if she ever got far enough down the warning process that she would have to have one.  At this point Sharifa said that she would rather leave than have another medical, that not all doctors believe in ME and that she might be seen on a ‘good day’.  I explained that her own doctor would be contacted in this instance and her notes made available, but this did not pacify her.  She went on to say that she was registered disabled for life and this should be sufficient, she said that she was not angry with me but with the procedure, and she said that the union had confirmed to her that she should be given a special allowance.  I suggested that she brought in all the paperwork confirming her disability and that we would put her concerns to the Governor or Deputy Governor.”

i.	5th October 1999.  Dr. M.J. Charlson, an occupational physician, by a letter gave the Prison Service advice regarding Mrs. Farley on the basis of the medical history as communicated to him by her General Practitioner.  He advised “her sickness absences since she has been at work are due to minor ailments of a recurring nature which one could not categorically state are related to chronic fatigue syndrome.”  He went on:

“The information that I have cast significant doubt as to whether Mrs Farley does meet the criteria for protection under the Disability Discrimination Act 1995.  If, as I suspect, she does not meet the criteria for protection under the Act, then there is no legal requirement for the Prison Service to make adjustments to her working conditions.  If Mrs. Farley does have protection under the Disability Discrimination Act 1995 then one of the adjustments that line management may wish to consider would be to allow her more sickness absence than would normally be expected to accommodate absences directly related to her disorder.  However I do not believe that the type of minor ailments that have caused sickness absence for Mrs Farley over the last 2½ years could be defined as directly related to her chronic fatigue syndrome.”

j.	17th November 1999.  It is made clear to Mrs. Farley that there were concerns as to the performance of her duties whilst ‘acting up’, which concerns were (as the Tribunal found) unrelated to her health.

k.	1st December 1999.  Mrs Maltby as EO Inmate Administration wrote to Mrs. Farley:

“This letter follows our meeting on 1 December 1999 in the presence of Mr. Hutson.  I discussed your attendance record in the 3 month period since the oral warning given to you on 9 July 1998.
I pointed out that you had incurred a total of 20 days sick absence over the past 16 months in 4 absences and that this was a matter of considerable concern to the establishment.
You told me that you had had a viral infection for the last 4 months and it had brought on an attack of ME.  Mr Hutson informed you that as an aid to reducing any pressure placed on you by substituting at the higher grade, it had been decided to return you to your substantive grade forthwith.
I would take this opportunity to remind you that the services of the staff welfare officer were always available to assist with any personal or domestic problems.
I now put in writing the warning given to you at our meeting; your record of attendance is unacceptable and must improve.  Your attendance will be carefully monitored over the next 12 months and I expect to see a significant and substantial improvement over the next 3 months.  If this improvement does not occur, or if any improvement is not sustained over the next 12 months, we shall have no alternative but to proceed to a final written warning.
I should make clear that failure to improve your attendance record will call into question your suitability to remain in the Service and that, if further action has to be taken, this could result in your dismissal.”

	There are findings by the Tribunal that this constituted the First Written Warning as prescribed by the Unsatisfactory Attendance Procedure and that the return to the substantive grade “was intended to be a positive, sympathetic action by management to assist Mrs. Farley and was not a detrimental or discriminatory step.  Although it would have resulted in a loss of income the promotion was an acting-up temporary arrangement.”

l.	13th December 1999.  Mrs. Farley having drawn the attention of the Governor to her concerns, the Prison Service sought to have her medically examined.

m.	3rd February 2000.  No such examination having yet taken place because Mrs. Farley declined to travel for such, she tendered her resignation “due to the pressure and stresses placed upon me by her senior line management throughout my struggle over the past two years in trying to get them to recognise that I am covered by Disability Discrimination Act …”

n.	11th February 2000.  The ET1 claiming Disability Discrimination.

Disability Discrimination Act 1995

6.	Relevant to this complaint are the following:

Section 4(2).  It is unlawful for an employer to discriminate against a disabled person whom he employs–
	(d) by dismissing him, or subjecting him to any other detriment.

5(1).  For the purposes of this Part, an employer discriminates against a disabled person if-
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified.

(3) … for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

6(1).  Where-
		(a) any arrangements made by or on behalf of an employer, …
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements … having that effect.
(6)  Nothing in this Section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know …
(b) … that that person has a disability and is likely to be affected in the way mentioned in subsection (1).

The Decision of the Employment Tribunal

7.	The decision appears from paragraph 34 of the Extended Reasons:

“As we have indicated at the outset, the nub of this matter in out view turns upon section 6(6)(b).  We find that the Prison Service management did have knowledge from the outset that Mrs Farley suffered from ME.  However, they did not have knowledge that this amounted to a disability in her case for the purposes of section 1 of the 1995 Act.  Moreover and in particular they did not have knowledge of the effect of the ME upon the normal day-to-day sickness conditions which are covered by her sickness record and the length of time that she would need to recover.  The highest level at which their state of knowledge came was expressed in the letter from Dr Charlson dated 5 October 1999.  It follows from that conclusion that there was no section 6 duty on the Prison Service to make adjustments in relation to the application to Mrs Farley of the sickness monitoring procedures and the trigger for their implementation.”

Judgment

8.	Neither the Notice of Appeal nor the supporting skeleton argument focussed upon paragraph 34, preferring to raise other more peripheral points.  That said, we as a Tribunal have given our own anxious consideration to the reasoning as deployed in paragraph 34 in the light of the terms of Section 6(6).  In the result we make the following observations:

a.	The issue was not as to whether or no Mrs. Farley was a ‘disabled person’ within the ambit of the 1995 Act, but as to whether the Prison Service were under the Section 6 duty to make adjustments – effectively as to their conduct of their Unsatisfactory Attendance Procedure.

b.	The question depended upon whether the Service had knowledge, actual and constructive that Mrs. Farley was by reason of her disability adversely affected by the non-discriminatory conduct of this Procedure.

c.	What was the knowledge, actual and constructive of the Service?  Upon the findings of the Tribunal, the Service did have some actual knowledge, that is, that which Mrs. Farley herself had contended to them as to the way in which ME apparently impacted upon the degree and duration of her minor ailments and as to the consequent impact upon arrangements made by the Service with respect to unsatisfactory attendance.  That said, the Tribunal further found, expressly or by inference, that that intimation as coming from a lay, interested source was itself inadequate to fix the Service with actual knowledge sufficient to make it subject to a Section 6 duty; and that for such intimation to have that effect it must be confirmed by medical opinion – the Service without such confirmatory opinion “could not reasonably be expected to know” whether what she was saying was valid.  In the event, say the Tribunal, the medical opinion vouchsafed to them at the material time was not sufficiently confirmatory to fix them with adequate knowledge – yet further, this time by inference, the Service did not have constructive knowledge of the different and better opinion seemingly to be obtained elsewhere, certainly from Dr. Conway.

d.	It is apparent the Dr. Charlson did not specifically address the point raised by Mrs. Farley as to the impact of ME upon the degree and duration of minor ailments, nor was he pressed to do so by the Prison Service.  Could the Tribunal infer that if pressed he would have confirmed her contentions, as did Dr. Conway?  Could the Tribunal have concluded that the Service thereby had constructive knowledge of confirmatory medical opinion?  Could the Tribunal be said to have misdirected itself by failing to advert to this line of reasoning?  We raise these concerns because they were to our minds on reading the papers: in the event we are satisfied that we cannot utilise them to fault the approach of the Tribunal as set out in paragraph 34.  Essentially, the Tribunal made its findings on the evidence put before it and in the light of the submissions then made upon such.  It was with that material that they acted as the industrial jury and even now no clear criticism is forthcoming as to their approach to the Section 6(6) issue.  Had our concerns been before the Tribunal, further and different fact finding would have been needed: for example, did Dr. Charlson agree with Dr. Conway so as to be the potential source of a like opinion?

9.	In the overall result no effective challenge to the reasoning deployed in paragraph 34 has been put before us and we are satisfied that our own initial concerns could not serve to impugn the Tribunal’s conclusion on the main issue as reflecting an error of law.  We turn to a point that was raised before us: by reference to Sections 4(2) and 5(1), was not Mrs. Farley made the subject of discrimination for reasons relating to her disability, effectively as arguably appears from the letter of the 1st December 1999?  Were not the apparent decisions of the Tribunal to the contrary perverse?  Thus, submits Mr. Morton, the letter appears to acknowledge that ME had contributed to the sickness absence that was triggering this First Written Warning – and indeed there is a finding of fact by the Tribunal that the last seven days of the relevant absence had been ME related.  Given the inherent detriment implicit in the giving of such a warning, is it not apparent there is here disability based discrimination against her?  Further, is there not disability based discrimination in returning her to the substantive rank?  How could the Tribunal find to the contrary, absent perversity?

10.	With respect to the reversion to the substantive grade there is a clear finding of fact to the effect that such did not amount to a detriment per Section 4(2).  That decision was arrived at in the light of evidence received, inter alia, from the person responsible for the decision, Mr. Hutson.  Nothing was put before us to suggest the perversity that would serve to render an apparent finding of fact an actual error of law.

11.	With respect to the issuing of the First Written Warning, we agree that ME ostensibly made some direct input to the absences that constituted a trigger, but it was no more than a contribution and a single absence of seven days could not have impacted in isolation upon the Unsatisfactory Attendance Procedure.  Mr. Morton points to the Tribunal’s finding in paragraph 32, “nor was she disciplined under the sickness monitoring procedures on account of her ME”, and submits that that finding will not stand with the letter of the 1st December 1999.  We agree that the finding is open to the criticism that it is ‘broad brush’ but that which can be set against it does not serve to negative its essential thrust.

Conclusion

12.	Mrs. Farley readily secures our sympathy but she does not persuade us that an obviously careful decision by the Employment Tribunal reflects an error of law.  The appeal is dismissed.

13.	By way of postscript we should record that Mr. Hogan on behalf of the Respondents pointed out that before the Tribunal he had submitted that were it against him on the issues so far raised then he would argue justification as a defence.  In the event that defence was not needed and no doubt for that reason there is no reference to the point in the Extended Reasons.  Ever cautious he made a like submission to this Tribunal: we too have made findings that in the event make the point otiose.