Travis v Electronic Data Systems Ltd (EAT/0476/03)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAURICE KAY,LORD JUSTICE KEENE,LORD JUSTICE WALL,LORD JUSTICE NEUBERGER |
| Judgment Date | 26 August 2004 |
| Neutral Citation | [2004] EWCA Civ 880,[2004] EWCA Civ 1256 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 August 2004 |
| Docket Number | A1/04/0681 |
[2004] EWCA Civ 1256
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE EMPLOYMENT TRIBUNAL
(RIMER J)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Keene
Lord Justice Wall
Lord Justice Neuberger
A1/04/0681
MISS SUZANNE McKIE (instructed on behalf of Messrs Henmans, 116 St Aldates Oxford OX1 1HA) appeared on behalf of the Appellant
MR RICHARD LEIPER (instructed on behalf of Woodfine Batcheldor Solicitors, 16 St Cuthberts Street, Bedford MK40 3JG) appeared on behalf of the Respondent
This appeal raises what is, in the end, a relatively short point, namely how much detail an Employment Tribunal has to go into when determining what were the reasonable steps which an employer should have taken to perform its duty to a disabled person under section 6 of the Disability Discrimination Act 1995 (the " DDA") . I use the phrase "in the end" because other issues have been canvassed during the course of the progress of this case through the Employment Tribunal and then the Employment Appeal Tribunal (the "EAT") but those other issues are no longer live ones now.
This is an employer's appeal from a decision of the EAT, sent to the parties on 17th March 2004. By that decision the EAT upheld a finding by an employment tribunal that the respondent, Dr Travis, had been discriminated against for a reason relating to his disability. It also upheld (although only in part) the Tribunal's decision that the respondent had also been unfairly dismissed. There is no appeal or cross-appeal on the EAT's decisions in respect of unfair dismissal.
The facts of the case are fully and helpfully summarised in the Tribunal and EAT decisions, and I shall seek to confine myself therefore to those which are of the greatest relevance for present purposes.
Dr Travis is a highly qualified software engineer. He began his employment with the appellant in effect in February 1990, but from May 1994 onwards he had three periods of time when he was absent from work through illness, namely schizophrenia. The third of those periods began in June 1997. He was off work from then until, in August 1999, he requested to return to work. It then emerged that his IT skills were out of date, he having not employed them during the period when he was off work ill. There was an added complication, namely that his security clearance had lapsed. Much of the appellant company's work was of a secret nature, being done for the Ministry of Defence.
As a temporary measure he was employed to carry out work for a Mr Richardson on software in connection with a particular project. This was not revenue producing work, in the sense that it was not directly billable to an account or a client of the appellant.
In September 1999 the Ministry of Defence asked for a medical report on him to assist in determining whether or not fresh security clearance should be provided. The report, produced in October of that year, showed that, although Dr Travis was fit to return to work, he suffered from a disability, namely schizophrenia. In November 1999 his security clearance was partially reinstated. It was to be reviewed in twelve months' time. In the meanwhile he continued to work on the non-revenue producing project.
The Employment Tribunal found that the constraints on security clearance meant that it was difficult to get him back into that part of the appellant company's business known as EDS Defence, much of whose work was of a very highly classified nature.
From the fourth quarter of 1999 the appellant company engaged in a major restructuring exercise, known as 'Breakaway'. Its object was to review and in effect to make redundant all those staff who were non-revenue earning. That was to be the sole criterion for making staff redundant, and in the event some 1,700 staff were in due course made redundant over the following months. The respondent, Dr Travis, was at risk because he came into this category, namely non-revenue earning, in the post that he was at that time filling.
He was not told at the time that he was at risk of redundancy, but the resourcing manager, Ms McCartney, gave evidence that she was looking from November 1999 onwards to find him a permanent role with the appellant. The Tribunal commented that there was no documentary evidence to demonstrate any such efforts until in fact February 2000. Also, and in particular, the Tribunal found that there was no evidence of any kind of effort by the appellant to train Dr Travis in any respect.
In February 2000, one of the appellant's project managers, Mr Ralph, did interview the respondent in connection with a project known as 'Tamper Package 2'. However, Mr Ralph concluded that the respondent's skills in the relevant area were not current and his depth of knowledge of the areas of interest was not sufficient. Consequently Dr Travis was rejected. Mr Ralph gave evidence to the Tribunal that had he been aware that the respondent only had limited security clearance he would have ruled Dr Travis out from the outset.
By 21st February 2000 the appellant was actively considering making Dr Travis redundant, and he was told of this on 3rd May. Finally, a letter was sent on 30th May to say that attempts to find redeployment within EDS had proved unsuccessful, and he was given formal notice of termination due to redundancy, with the last day of employment to be 8th June 2000. The Tribunal found that the only apparent effort made at that stage during May by the appellant to find an alternative role was a series of emails sent by Ms McCartney to three other managers in the company, enclosing Dr Travis's CV and asking whether there were any alternative roles available. It will be borne in mind of course that at this stage still there had been no retraining of Dr Travis to bring his IT skills in any way up to date.
Before the Tribunal it was not in dispute that Dr Travis suffered from a disability and that he had been dismissed. The Tribunal found that the arrangements made by the appellant company placed Dr Travis at a substantial disadvantage in comparison with those who were not disabled, the arrangements being those arising in consequence of the 'Breakaway' redundancy exercise in respect of non-fee earning posts. The substantial disadvantage arose in connection with applying for fee-earning posts because of his lack of security clearance and his rusty skills. Both of those were the direct result, said the Tribunal, of his illness and his absence from work. So far no error of law is said to arise from the Tribunal's approach.
The appellant was thus under a duty by virtue of section 6(1) of the DDA "to take such steps as is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect", that is to say the substantial disadvantage. The Tribunal correctly noted that there was discrimination if the employer failed to comply with that section 6 duty in relation to Dr Travis, subject to any justification being established for the failure: see section 5(2) .
The Tribunal set out in full the terms of section 6(4), to which I shall return in due course, and it then said this at paragraph 47 of its determination, Dr Travis being referred to at that stage as the applicant:
"The Tribunal in arriving at their decision found that it was common ground in this case that the applicant was a disabled person within the meaning of the Act. On the applicant's return to work in October 1999, the respondents were clearly aware of that fact. They had a medical report which they had commissioned. They were conscious of the fact that the applicant lacked sufficient security clearance because of his illness and also that his skills were rusty, he not having practised them due to the duration of that illness. Notwithstanding that, however, they made no effort to provide him with any form of training, beyond the 'on the job' training he was required to undertake himself whilst being slowly reintroduced to work under Mr Richardson's 'wing'. The Tribunal did not accept the respondent's argument that training is something which the respondents might only have considered with the benefit of hindsight. They had the benefit of medical advice and had made their own assessment of his capabilities and training was an obvious option."
The Tribunal found that the appellant company did not sufficiently consider alternatives to dismissal and what steps might reasonably have been taken to assist Dr Travis in those circumstances. It concluded that the appellant had not taken all reasonable steps to stop the disadvantage and that that failure had not been justified and thus there was a breach of the section 6 duty.
Before the EAT it was contended on behalf of the appellant that the Tribunal had failed to explain sufficiently what section 6 steps should have been taken. The EAT rejected that argument. It noted the Tribunal below's finding that Dr Travis's disability was manifested in the fact that his skills were out of date and in his lack of security clearance. The EAT said that it followed in principle from that finding that the employer was under a duty to make reasonable adjustments directed at stopping Dr Travis suffering that disadvantage and in particular that he should have been provided with training so as to update his skills. The EAT, presided over by Rimer J, then said this of the Employment Tribunal's decision:
"It is correct that it [the Tribunal] did not identify more precisely what...
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E.s. As Parent And Legal Representative Of L.s. V. K. School
...detail about what adjustments there might have been (see the decision of the Court of Appeal in Electronic Data Systems v Travis [2004] EWCA Civ 1256, paragraphs 22 and 23)." It was not for the Appellant to identify in minute detail the reasonable steps the school might have taken but rathe......