Stockton on Tees Borough Council v Aylott
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Thomas,Lord Justice Toulson |
| Judgment Date | 29 July 2010 |
| Neutral Citation | [2010] EWCA Civ 910 |
| Docket Number | Case No: A2/2009/0720 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2010 |
[2010] EWCA Civ 910
Mrs Justice Slade
Before: Lord Justice Mummery
Lord Justice Thomas
and
Lord Justice Toulson
Case No: A2/2009/0720
UKEAT/0401/08/CEA
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Robin Allen Qc And Ms Catherine Casserley (Instructed By Equality And Human Rights Commission) For The Appellant
Mr David Reade Qc And Mr Hari Menon (Instructed By Legal Services Stockton-On-Tees Bc) For The Respondent
Hearing dates : 20 & 21 April 2010
Lord Justice Mummery :
The issues
This appeal is about how the Disability Discrimination Act 1995, as amended (the 1995 Act), should be interpreted in law and applied in practice. The course of the proceedings demonstrates that problems persist, even after 15 years' experience of the legislation. The problems are not solved by attempting to work from other discrimination legislation and the authorities on how that should be construed. Many of the problems are different in practice. Important features of the 1995 Act have no equivalent in sex discrimination and race discrimination law.
The Employment Tribunal (ET) spent 10 days listening to evidence from 20 witnesses and to legal argument on discrimination claims made by Mr Russell Aylott (the claimant) against his former employer, Stockton-on-Tees Borough Council (the Council). The claims were for direct discrimination contrary to s3A(5) of the 1995 Act, for discrimination for a reason related to a disability contrary to s3A(1), and for discrimination by failing in its duty to make reasonable adjustments contrary to s4A. There was also a claim for harassment contrary to s5.
The only aspect of the Council's actions relevant to this appeal is whether Mr Aylott's dismissal was discriminatory. The issue in this court is whether the ET correctly interpreted the 1995 Act and properly applied the provisions governing the three forms of discrimination to the circumstances of his dismissal that took effect from 8 November 2006.
It is common ground that, in respect to the complaint presented by him to the ET on 6 February 2006, the claimant has at all material times been “a disabled person” within the meaning of s1 of the 1995 Act. He suffers from bipolar affective disorder, a condition that dates back to 1973.
In their judgment registered on 26 June 2008 the ET found in the claimant's favour on all the discrimination claims and awarded him £30,686.54. They also awarded him £1,670 for unfair dismissal. On the Council's appeal to the EAT the claimant suffered a serious reversal of fortune. The EAT said that the ET erred in law in almost all every aspect of discrimination challenged by the Council and that the ET's decision was “wholly flawed.”
In a judgment handed down on 11 March 2009 the EAT remitted the discrimination claims to the ET, but did not disturb the judgment on unfair dismissal. As explained in a further judgment dated 28 November 2008 the EAT directed that, although the remitted hearing should be before a differently constituted Tribunal, they would not have to re-hear all the evidence. They would proceed on the findings of fact made by the original Tribunal, if and in so far as they are not inconsistent with the judgment of the EAT. They could hear additional evidence as required for the purpose of determining the issues remitted to them, including jurisdictional issues relating to the claimant's complaints; whether the claims were properly pleaded; whether a proper grievance had been presented in accordance with s32 of the Employment Act 2002 in relation to each allegation that was pursued as a complaint under s17 of the 1995 Act; whether each such complaint had been presented within the 3 months time limit; and, if not, whether time should be extended.
Rimer LJ granted permission to appeal. This court has no lay members, unlike the ET and the EAT where they are indispensable for the actual experience of industrial relations and of day-to-day life in the workplace that they bring to bear on the decisions. Nor is this a specialist court. These features are brought sharply into focus when the court is faced with the contradictory decisions of two tribunals both expert in the law and experienced in the practice of resolving discrimination disputes at work.
There is also before the court an application by the Council for permission to cross appeal against the decision of the EAT upholding the ET's award for automatic and ordinary unfair dismissal. Rimer LJ adjourned that application to the hearing of the appeal. At a late stage of the hearing the Council decided not to pursue its application.
The claimant is supported by the Equality and Human Rights Commission (the Commission), which would like the court to clarify aspects of disability discrimination law that impact on other cases. In particular, in the part of their judgment dealing with disability related discrimination under s3A(1), the ET applied the construction of the 1995 Act laid down by this court in an employment discrimination case, Clark v. Novacold [1999] ICR 951 ( Novacold). That case concerned what was then s5 of the 1995 Act, but became s3A(1) as a result of amendments in 2003. The day before the ET judgment was sent to the parties the House of Lords handed down opinions in a disability discrimination case in a premises management setting, Lewisham Borough Council v. Malcolm [2008] 1 AC 1399 ( Malcolm). The issues in the EAT and in this court included whether Novacold was still good law on the interpretation of the employment discrimination provisions of the 1995 Act: was it overruled, in whole or in part, by Malcolm? Is Malcolm distinguishable from Novacold and from this case? Was Malcolm wrongly decided? (This is obviously not the right court for that question) Those are just some of the questions put to the court by Mr Robin Allen QC, who appears on the instructions of the Commission putting the case for the claimant. The range of the questions explains the Commission's commitment to this appeal.
As will appear later, the significance of the Novacold/Malcolm questions is fading fast. Under new legislation they will soon cease to matter altogether for future cases. The Equality Act 2010 received Royal Assent on 8 April 2010 and will be brought into force later this year. The effect of s15 of the 2010 Act relating to “discrimination arising from disability” is that the law on disability- related discrimination, as laid down by the majority in Malcolm, will not be relevant to that kind of discrimination in employment.
There are, however, other controversial legal points of continuing relevance. They relate to the scope of s3A(5) and the selection of a hypothetical comparator by the ET; the treatment of the burden of proof in the direct discrimination claim; the scope of s4A and the identification of the reasonable adjustments that the employer is under a duty to make; and a question of causation relating to the exacerbation of the claimant's psychiatric symptoms in connection with the assessment of compensation for discrimination.
Mr Robin Allen QC accepts that, in order to retain the benefit of Mr Aylott's compensation award, success on only one of the 3 forms of alleged disability discrimination in his dismissal is sufficient. In general, the courts do less damage to this area of the law by rationing themselves to a case at a time rather than by attempting to lay down the law in advance of cases in which a legal ruling on a doubtful point is unavoidable. This judgment is confined to points which have been fully argued and on which rulings are both reasonably necessary and can be made with a reasonable degree of confidence.
Outline facts
The claimant's employment with the Council began in a non-managerial role on 3 June 2003. On 4 May 2004 he was appointed Business Support Manager. Problems in the workplace began to emerge. On 2 January 2005 the claimant submitted to the Head of Technical Services a list of 17 complaints or grievances arising from difficulties with colleagues in the Business Support Team (alleged assault, harassment, bullying and failure to have regard to his state of health). Until then the managers dealing with the claimant were unaware of his disability. He went on paid leave of absence. In February 2005 he made a request for reasonable adjustments to his working practice to help him continue working effectively. On medical advice from Dr Slade an investigation of the complaints was not pursued.
His complaints against colleagues were investigated under the Dignity at Work Procedure while he was on paid leave of absence. He returned to work on 31 May 2005. At a meeting on 3 June he stated that he stood by the specific allegations against named individuals. The allegations were investigated and in due course rejected in the Dignity at Work Report dated 13 October 2005. That Report contained a recommendation that—
“Mr Aylott does not return to employment until such time as his bipolar condition is demonstrably stabilised over a period of time. If this can be achieved, opportunities for Mr Aylott to undertake a post which plays to his knowledge and expertise should be sought within the Council. Ideally this should be one without line management responsibility for staff and should not be in the section where he was previously employed and the difficulties arose. If such a post cannot be identified or Mr Aylott's bipolar condition cannot be sufficiently stabilised,...
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