Elaine Robinson v Department for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lord Justice Haddon-Cave,Lady Justice Macur |
| Judgment Date | 07 July 2020 |
| Neutral Citation | [2020] EWCA Civ 859 |
| Date | 07 July 2020 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2019/2083 |
[2020] EWCA Civ 859
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE KERR
UKEAT/0021/BA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Macur
Lord Justice Bean
and
Lord Justice Haddon-Cave
Case No: A2/2019/2083
Rachael Robinson, lay representative, for the Appellant
Tom Kirk (instructed by Government Legal Department) for the Respondent
Hearing date: 25 June 2020 (via Skype for Business)
Approved Judgment
This appeal concerns a claim made by Mrs Robinson, the Appellant, for discrimination arising from disability pursuant to s 15 of the Equality Act 2010 (“ EA 2010”). She appeals from the order of Kerr J, sitting in the Employment Appeal Tribunal (“EAT”), dated 23 July 2019, by which he allowed the Respondent's appeal against the decision of the Employment Tribunal (“ET”) sitting at Huntingdon (Employment Judge James, sitting with Mr T Wilshin and Mrs L Gaywood), dated 23 October 2018. On 25 November 2019, Henderson LJ granted permission to appeal to this court. Mrs Robinson (whom I shall call “the Claimant” or “the Appellant”) was represented before us, as she had been in the ET and EAT, by her daughter Ms Rachael Robinson. Mr Tom Kirk appeared for the Respondent (“the DWP”), as he too had done in the ET and EAT.
The facts
The Claimant worked for the DWP as an Administrative Officer without difficulty from 1992 to 2014. Her role in the latter part of that period was computer-based and required her to use specialist debt management software called “Debt Manager”.
On 1 November 2014, the Claimant suffered what was later diagnosed as a hemiplegic migraine. She developed blurred vision in her left eye, which substantially affected her ability to undertake day-to-day activities and made it impossible for her to work on a computer using Debt Manager.
In November 2014, the DWP changed its computer hardware, which reduced the screen resolution on the computers and further impacted on the Claimant's ability to see the monitor clearly. The Respondent undertook a risk assessment and its workplace adjustment team recommended that Mrs Robinson use screen magnification software. The team encountered a considerable number of technical difficulties when it tried to adapt the software to accommodate the Claimant's needs. This lasted a lengthy period. There was a series of problems with: (a) the incompatibility of the screen magnification software, called “Zoom Text”; (b) the Debt Manager programme which the Claimant had to use; and (c) a new computer called “Thick Client” which the Respondent tried to build for the Claimant. Even when Zoom Text and Debt Manager worked together to any extent, Mrs Robinson could not see all she needed to see because of the magnification, which could cause migraines.
The Claimant worked under considerable stress because of these difficulties. She took some leave of absence in July 2015 and more leave at later dates. There were discussions as to whether the leave should be classed as “special leave” or annual leave, and the Claimant later took sick leave. The difficulties continued throughout 2015 and into 2016, during which time the Respondent commissioned an occupational health assessment report from its Reasonable Adjustments and Support Team (“RAST”).
In March 2016 the Claimant lodged a grievance about the way the Respondent had responded to her needs. In the same month she agreed to work in a paper-based role, though both parties hoped that this would be temporary whilst the difficulties were resolved.
In July 2016 a report was published upholding the Claimant's grievance. The report was by Dave Offer, assisted by Melanie Truelove, both of the HR Mediation and Investigation Service of the Respondent. They wrote that two issues had been raised in the Claimant's grievance:-
“DWP failed in its duty of care to protect Elaine Robinson from undue stress that has had a detrimental effect on her health and wellbeing.
DWP failed to provide Elaine Robinson with a workstation that accommodated her needs as set out in the recommendations of the Reasonable Adjustment Support Team and Occupational Health Service, within a reasonable time scale.”
The “overall findings” of the report, strongly relied on by the Claimant, were as follows:-
“Returning to Elaine's grievance and the two particular issues she raised, it was suggested in the witness evidence that Elaine's annual leave and sick leave caused some of the delay in getting the requested adjustments in place. Whilst this may be true to some extent the evidence shows that:-
• The major reason for the delay during the period March 2015 — November 2015 was the failure to obtain the correct model of computer, compounded by subsequent confused and ineffective communications about the nature of the ensuring problems that were arising.
• The major reason for the delay during the period November 2015 — March 2016 was the failure to get Elaine on the rollout schedule for delivery of enhanced transformed equipment. This was compounded by the fact that it took over two months to establish that this was the case.
Additionally, had the business enlisted support from IT Technology as soon as Elaine went sick in August 2015 her absence from the rollout schedule for the new equipment would have been established and perhaps rectified before she returned to work in November 2015.
It was suggested in the witness evidence that Elaine was stressed by her health issues and this must have been a contributory factor in her subsequent depression. Whilst the investigators do not doubt the validity of this comment, they also consider that the various problems described in this report can only have increased Elaine's stress and anxiety and it would be reasonable to assume they played a tangible part in her subsequent depression.
The investigator believes that the various delays and errors that occurred were the result of mistakes and/or process failures rather than any individual behaving in an inappropriate or negligent manner. Accordingly, they consider that individual culpability is not an issue in this case. However, this does not alter the fact that a year after ZoomText was recommended it was still not in place neither does it diminish the impact various events had on Elaine.
The investigators believe that it is clear that following the workplace assessment in March 2015, Elaine was not provided with a computer that incorporated all of the recommended adjustments within a reasonable time period. They also believe it is clear that the various problems that arose had a detrimental effect on Elaine's health and wellbeing.
Accordingly, the investigator considers that both of the issues raised by Elaine happened as described.”
Mrs Robinson subsequently brought a second grievance seeking an apology and compensation. She received an apology but no compensation. She appealed the second grievance decision but was unsuccessful.
She filed an ET1 claim form on 15 August 2017. At the time of the ET hearing, she continued to work for the Respondent. She applied for early retirement in May 2019 and retired with effect from 31 August 2019.
The Employment Tribunal decision
The Claimant brought two complaints before the ET: first, discrimination arising from a disability contrary to s 15 of the Equality Act 2010; and second, a failure to make reasonable adjustments contrary to s 20 of the same Act.
In her particulars of claim, the Claimant had identified four instances of unfavourable treatment contrary to s 15 (“allegations (a) to (d)”): (a) her removal from the Debt Management department; (b) the Respondent's failure to deal with the Claimant's grievances fully and in a timely manner; (c) the Respondent's failure to implement the reasonable adjustments recommended by Occupational Health and RAST; and (d) the Respondent's failure to provide work suitable for the Claimant's skills, capability and to allow for future development.
The ET made detailed findings of fact in paragraphs 6 to 55 of its judgment. I will set out in full its conclusions at paragraphs 56 to 67:
“56. In considering a claim under s 15 Equality Act 2010 I [sic] must consider whether the Claimant has established that she has suffered unfavourable treatment and that that treatment is because of something arising in consequence of her disability. I have noted the outcome of the first grievance notified on 22 July 2016 which stated:
DWP failed in its duty of care to protect Elaine Robinson from undue stress that had a detrimental effect on her health and wellbeing.
DWP failed to provide Elaine Robinson with a work station that accommodated her needs, as set out in the recommendations of the RAST and Occupational Health Service, within a reasonable timescale.
57. The first paragraph of the grievance outcome represents an acceptance by the Respondent that it has caused unfavourable treatment to the Claimant, namely protecting her from undue stress which had a detrimental effect on the Claimant's wellbeing. It is clear that the root cause of the Claimant's problems was her disability and arose out of the consequences of that disability, namely the Claimant's inability to use the normal computer hardware and software provided by the Respondent.
58. The Tribunal considered whether the unfavourable treatment was a proportionate means of achieving a legitimate aim and is satisfied that it was not. It is also clear that the Respondent was aware of the disability. The Tribunal has been referred to a number of instances of claimed unfavourable treatment. The Respondent suggests that the Claimant has wrongly asserted that she was removed from the debt management department. She was not removed from the department but she was removed from...
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