Newham Sixth form College (Respondent/Defendant) v Miss Natalie Sanders (Appellant/Claimant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Tomlinson,Lord Justice Briggs |
| Judgment Date | 07 May 2014 |
| Neutral Citation | [2014] EWCA Civ 734 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 2014 |
| Docket Number | Case No: A2/2013/2718 |
[2014] EWCA Civ 734
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE McMULLEN QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Tomlinson
Lord Justice Briggs
Case No: A2/2013/2718
Mr S Gill (instructed by Public Access) appeared on behalf of the Appellant
Mr M Gullick (instructed by Berry Smith) appeared on behalf of the Respondent
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:
"For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person."
Section 4A provides in part:
"(1) Where —
(a) a provision, criterion or practice applied by or on behalf of an employer … places 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 provision, criterion or practice, or feature, having that effect…
(3) 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) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)."
Then section 18B of the Act provides in Part as follows:
"(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to —
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is practicable for him to take the step;
(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the nature of his financial and other resources …
(f) the nature of his activities and the size of his undertaking …"
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:
"50. The impairments identified have a significant adverse effect on Ms Sander's ability to carry out normal day to day activities, making for instance the generation of sufficient volition to get up in the morning and propel herself to work on time a virtually impossible task …
52. In my opinion, Ms Sanders has been working under a substantial handicap as described in the main body of my report throughout the past five years …
55. In my opinion, this episode of illness can be classified under an ICD coding of F32.11. A feature of Ms Sanders' condition has been a significant psychomotor retardation, worse in the morning, and a likely cause of her inability to get up in time to attend her employment."
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:
"16. The fact that this requires in particular the identification of the provision, criterion or practice concerned and the precise nature of the disadvantage which it creates by comparison with those who are non-disabled, was set out clearly by this Tribunal in Environment Agency v Rowan [2008] ICR 218 at paragraph 27. That guidance is worth restating:
'[…] an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with Section 4A duty must identify:
(a) the provision, criterion or practice applied by or on behalf of an employer, or
(b) the physical feature of premises occupied by the employer …
(c) the identity of non-disabled comparators (where appropriate) and
(d) the nature and extent of the substantial disadvantage suffered by the Claimant.'
Later in the same paragraph the Tribunal continues to say:
'in our opinion an Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments under Sections 3A(2) and 4A(1) without going through that process. Unless the Employment Tribunal has identified the four matters we have set out above …'
We interpose to say that of course it is not in every case that all four matters need to be identified but certainly what must be identified is (a) and (d)."
Then after citing further authority, Langstaff J concluded at paragraph 24 as follows:
"Thus, so far as reasonable adjustment is concerned, the focus of the Tribunal is, and both advocates before us agree, an objective one. The focus is upon the practical result of the measures which can be taken. It is not — and it is an error — for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer's thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reasons."
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...
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