Newham Sixth Form College v Sanders

LORD JUSTICE LAWS: This is an appeal with permission granted by Christopher Clarke LJ on 19th December 2013 against a decision of the Employment Appeal Tribunal presided over by His Honour Judge McMullen QC of 2nd July 2013. By that decision the EAT set aside the finding of the Employment Tribunal (the "ET") to the effect that the respondent employer had discriminated against the appellant in breach of section 4A of the Disability Discrimination Act 1995 ("DDA") by failing to make reasonable adjustments during her employment in the latter part of 2007. The ET's judgment, to which I will refer as "the liability judgment", was sent to the parties on 11th September 2012. The EAT also set aside the ET's subsequent remedies judgment by which it made an award of £216,108.92 to the appellant.

The respondents are a sixth form college with over 350 staff and some 3,000 students. The appellant joined the college on 2nd July 2007, when she was about 25, as an A-level tutor. Her working week was some 36 hours: ten hours tutoring, 16 hours developing the college's tutorial programme, and ten hours preparation, marking and administration. She was required to attend at the college premises at 8.45 am during term, when the students were there, and at 9 am at other times. There was a procedure to be followed if an employee was going to be late: that was to telephone the college to give warning of the fact.

The appellant's employment did not survive the probationary period. She was dismissed on 20th December 2007, with effect as I understand it from 28th February 2008, but was not required to work out her notice period.

The appellant had suffered from a depressive illness since 2005 and it was at length conceded that she was disabled by reason of mental impairment. Section 3A(2) of the DDA 1995 provides:

Then section 18B of the Act provides in Part as follows:

The appellant's case was that because of her disability she was unable to get to work on time with any regularity. Because of her timekeeping record, disciplinary proceedings were instituted in August 2007. A number of meetings followed. At length, on 20th December 2007 the respondents wrote to the appellant dismissing her on the basis that they could not continue to accommodate her continual lateness and she had constantly failed to comply with their reporting procedures. These reasons reflected the two "PCP" (that is, provision, criterion or practice, the language of section 4A(1)) which the appellant says should have been the subject of reasonable adjustments under sections 4A and 18B, namely the requirement to attend work regularly at 8.45 and the requirement to telephone if she was going to be late or absent.

It is convenient at this stage just to set out the following passages, which have been relied on in the appellant's submissions in writing, from a joint medical report prepared by Dr Jeffrey Roberts and dated 27th July 2010. It was put before the ET but not the EAT:

The learning on the subject of reasonable adjustments and section 4A of the DDA was collected by Langstaff J in RBS v Ashton [2011] ICR 632 in the EAT. The judgment cites the earlier EAT decision of Environment Agency v Rowan [2008] ICR 218. At paragraphs 15 to 16 of Ashton, Langstaff J said this:

I apprehend that this is the first case in which this jurisprudence has fallen for consideration in this court, and I would simply say that the reasoning set out in Rowan and Ashton seems to me, with respect, to be entirely correct.

The essence of the respondents' case, and of the conclusions of the EAT below, is that the ET in this case failed to follow the stepped approach commended in Rowan and failed also to make the objective assessments required in particular by paragraph 24 of Ashton.

In its decision, the ET set out at some length the circumstances of the appellant's employment and its termination: see paragraphs 7 to 40. It then proceeded to consider a series of adjustments which had been advanced by the appellant. These included flexible working arrangements, doing some work at home, sharing the appellant's work with another employee or employees, treating the appellant's bad timekeeping as disability absence, changing the reporting procedure to allow it to be done by e-mail or text and allowing absence for rehabilitation assessment or treatment. The ET found (paragraph 53) that this last suggestion would not count as a reasonable adjustment, but it accepted that any or all of the others might constitute reasonable adjustments, giving short reasons in each case. Its overall conclusion on the measures proposed is set out at paragraph 56 as follows:

The stepped approach commended in Rowan and endorsed in Ashton requires, among other things, that the ET identify the nature and extent of the substantial disadvantage to which the disabled person is placed by reason of the PCP in question. Unless that is done, the ET cannot make proper findings as to whether there has been a failure to make reasonable adjustments.

Here the respondents say that the ET failed to undertake any proper analysis of the nature and extent, in particular the extent, of the substantial disadvantage in question; and they made no finding as to the state of the respondent employer's knowledge specifically concerning the nature and extent of the substantial disadvantage. They failed also, it is said, in any event to make a proper assessment of the reasonableness of the proposed adjustment.

In my judgment these three aspects of the case -- nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustments -- necessarily run together. An employer cannot, as it seems to me, make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and the extent of the substantial disadvantage imposed upon the employee by the PCP. Thus an adjustment to a working practice can only be categorised as reasonable or unreasonable in the light of a clear understanding as to the nature and extent of the disadvantage. Implicit in this is the proposition, perhaps obvious, that an adjustment will only be reasonable if it is, so to speak, tailored to the disadvantage in question; and the extent of the disadvantage is important since an adjustment which is either excessive or inadequate will not be reasonable.

In this case I have concluded that the ET's judgment betrays no enquiry into the extent of the difficulties, the substantial disadvantage, to which the requirements of attendance at 8.45 in the morning and of phoning in to warn of late arrival exposed the appellant, nor is there any distinct finding as to the respondents' knowledge of their extent. It is in effect simply accepted that the various proposals advanced on the appellant's behalf could have been implemented, and so it is concluded they should have been. There is therefore no reasoning to support the conclusion that in light of the respondents' knowledge, this or that adjustment would have been neither excessive nor inadequate but would have been apt to deal with the nature and extent of the appellant's difficulties, and for that reason should have been adopted. These shortcomings are, I fear, compounded by the terms of paragraph 58 of the ET decision which I have read. Unless we are to conclude, which to my mind is clearly impossible, that the observations there to be found were not intended to have any relevance to the basis of decision, it seems to me inescapable that the ET have fallen into the very error which paragraph 24 of Ashton insists is to be avoided: "it is irrelevant to consider the employer's thought processes or other processes leading to the making or failure to make a reasonable adjustment".

The appellant, through Mr Gill of counsel, for whose assistance we are very grateful, seeks to support the ET's decision. He submits that the criticisms advanced by the respondents and the EAT in the end have no force. He says that the evidence as to substantial disadvantage was not disputed (see paragraph 45 of his skeleton), that the nature of the substantial disadvantage was self-evident (paragraph 46), that the ET's conclusions as to the reasonableness of the proposed adjustments disclose an "implicit finding" as to substantial disadvantage, and that that appears inter alia from paragraph 56 of the decision which I have read (see paragraphs 49 and 50 of his skeleton). It is also said that there is "an implicit finding" as to the state of the respondents' knowledge (paragraph 58). As to reasonableness, Mr Gill does not in his skeleton address in terms paragraph 58 of the ET's decision.

This morning Mr Gill has submitted that it was clear to the ET what was being contended for. He submitted in particular that the appellant had explained at the disciplinary meeting on 17th December 2009 her difficulties in relation to the second PCP, the requirement to telephone in. He referred to other passages in the evidence, including the appellant's own witness statement. He submits that the ET judgment includes, however implicitly, findings as to the state of the respondents' knowledge concerning the appellant's difficulties or the lack of such knowledge.

Now, it is of course right that it was common ground that the appellant suffered from depression and was disabled within the meaning of the DDA, and as Mr Gill submitted to us, the ET had before it descriptions by the appellant herself of her difficulties. At paragraph 42 of the decision (one of the passages relied on by Mr Gill as disclosing a finding of knowledge on the respondents' part) the ET said this:

In this dignified letter there is, however, arguably nothing as to the extent or gravity of the appellant's difficulties in getting to work on time: facts which might inform the question what a reasonable adjustment might be. Moreover, there is very little more in a GP's letter of 4th October 2007, which has this:

In short, it must be arguable that the extent of the appellant's disadvantage was far from self-evident. That is something that may have to be gone into further in due course, but it seems to me it means that cases such as Jennings [2013] Eq LR 326 do not assist Mr Gill.

There was of course much more in the joint medical report of 27th July 2010 which I have cited, but as far as I can see that is nowhere referred to in the liability judgment, and of course given its date comes well after the period in which the relevant events took place.

In all the circumstances, notwithstanding Mr Gill's careful and tenacious efforts on behalf of the appellant, I am not persuaded that the conclusions I expressed earlier as to the deficiencies in the ET decision are in the least undermined. Moreover, this is not a case where we should ask the ET for further reasons. They have failed to grapple with a central question: the fit between any proposed adjustment and the extent of the appellant's disadvantage.

In the circumstances I would dismiss the appeal for the reasons I have given, essentially to the effect, in agreement with the EAT, that the liability judgment is flawed for want of proper reasoning in accordance with Rowan and Ashton.

There are three postscripts.

First, the respondents have put in a respondent's notice seeking to criticise the remedies judgment. If my Lords agree with my conclusions on the appeal, the respondent's notice is moot. I merely indicate that for my part I can see no basis on which the remedies judgment, which was at no stage appealed to the EAT, could properly be the subject of any argument in this appeal. Had Ms Sanders' appeal been allowed and both the ET's judgment accordingly restored, the respondents' recourse would presumably have been to seek leave to appeal the remedies judgment to the EAT out of time.

Secondly, it is to be noted that the appellant was debarred from taking part in the respondents' appeal to the EAT for breach of orders or directions which the EAT had earlier made. As I have said, the joint medical report of 27th July 2010 was not placed before the EAT by the respondents. It is true that in refusing a review application by the appellant, Judge McMullen expressly acquitted the respondents of having made "misleading submissions", and I by no means accuse them of having done so. It is true also that on my reasoning on the appeal the terms of the joint medical report can have made no difference to the result. But I think it clear that it should have been put before the EAT.

Thirdly, there was an application for a protective costs order. That was advanced by Mr Gill at our invitation at the beginning of the hearing this morning. The application was first made on 28th April 2014. It is said that the appeal is from a no costs jurisdiction tribunal and the appellant has no funds. This application is far too late. As to its substance, there is no question here of the appellant being denied access to justice. Mr Gill is here on her behalf and the court is very grateful to him. There is no case for a PCO.

In the result, if my Lords agree, it seems plain to me that the case will have to be remitted to the different constitution of the ET. It is in many ways a lamentable result: the case is an old one; this lady, apart from the effects of her disability on her timekeeping, has it seems been an admirable employee of the college; and it is a great pity that a further hearing must take place.

LORD JUSTICE TOMLINSON: I agree.

LORD JUSTICE BRIGGS: I also agree.