Appeal No.	EAT/1097/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 May 1999
Judgment delivered on 17 September 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR W MORRIS
MISS D WHITTINGHAM

KENT COUNTY COUNCIL	APPELLANTS

MR A MINGO	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A KORN
(of Counsel)
Instructed By:
Ms F Williams
Solicitor
Kent County Council
Legal & Secretariat
County Hall
Maidstone
Kent ME14 1XG
	
For the Respondent	MS H WILLIAMS
(of Counsel)
Instructed By:
Mr L Gluck
Legal Officer
UNISON
1 Mabledon Place
London WC1H 9AJ	

	MR JUSTICE MORISON (PRESIDENT):	Kent County Council appeals from the judgment given at a Tribunal sitting at Ashford on 20 July 1998 that the applicant, Mr Mingo, had been unlawfully discriminated against contrary to sections 5(1) and 5(2) of the Disability Discrimination Act 1995 and had been unfairly dismissed.

1	The background facts in this matter can be taken from the Tribunal’s judgment.  The applicant had been employed by the Council as an assistant cook since 25 April 1992 at the Thanet Day Opportunities Centre.  On 25 March 1996 he sustained an injury to his back and after trying to continue working, he went on sick leave from 22 April to 6 May 1996.  The applicant returned to work but due to refurbishment he did not return to the kitchens but instead assisted the Day Care Officers in looking after clients at the Centre.  He eventually returned to work in the kitchen on 13 May 1996 but due to the increasing severity of the symptoms of his back injury he went on sick leave from 31 May to 1 July, and was advised by his GP that it was unlikely that he could return to work in the kitchen and later certified that the applicant would be fit for work, providing it did not include heavy work or lifting.

2	On 10 June the applicant was visited by his Manager, Mr Gerlack and a Personnel Officer, Mr Aitchison.  No suggestion was made that the applicant would lose his job though it was agreed that he would be referred to the Occupational Health Department.

3	The applicant returned to work on 1 July 1996 as a supernumerary helper at the Centre, assisting the students attending the Centre.  On 31 July 1996 he was examined by Dr Fernandez at the request of the Occupational Health Department and it was recommended that the applicant be re-deployed.  Dr Fernandez commented:

“His current job as an assistant cook is unsuitable in the sense that if he returns to this post, it is almost inevitable that his medical problem will recur … I understand that he is currently employed as a classroom assistant which to date has not produced any exacerbation of his medical problem, and, if this was an option, I would consider as a suitable one for him in the light of redeployment.” 

4	On 2 August 1996 the Senior Occupational Health Advisor formally recommended that he be re-deployed.  Unfortunately a number of administrative steps to assist in the re-deployment did not occur and the Tribunal found that the applicant formed the view that the Personnel department was doing nothing to help him obtain employment.  

5	Under the Council’s Central Clearing House procedures the applicant was classified as a Category B re-deployee and he was told that there was no flexibility about his classification.  It is this classification and the procedures surrounding it that is a principal issue in this appeal.  The procedures were designed to match internal job vacancies within the Council with existing re-deployees.  Category A re-deployees were those at risk, or under notice of, redundancy.  Category B staff consisted of, inter alia, “staff to be deployed on incapability/ill-health.”  The order of treatment was such that Category A staff were the best placed to obtain re-deployment:

“When applying for a post which is graded no higher than the grade of their redundant post they [Category A staff] must be interviewed unless the manager has very good reasons as to why they were unsuitable … They have priority consideration for suitable alternative employment and must be seen before, and without regard to the abilities of, other non-category A applicants.
…
Although Category B staff are given the same access to the Central Clearing House, they are not entitled to preferential treatment in relation to other internal applicants (although their particular circumstances should be taken into account when assessing their application).”

6	A new Clearing House procedure was introduced in or about November 1996.  Under the new procedure Category A staff were defined as before, but a new category was introduced to cover staff with a disability.  They were defined as the following:

“staff who are covered by the Disability Discrimination Act and where a reasonable adjustment cannot be made to their present post to accommodate their disability.”

7	Staff to be re-deployed on incapacity/ill-health grounds, other than those covered by the Disability Discrimination Act, were defined as Category B staff.  The order of treatment of staff still appeared to place Category A staff on a different level to others, as the descriptive paragraph read:

“If no suitable candidates have been found from the above categories then before looking at the other categories these staff must be considered providing they are applying for a post at a level no higher than the post in which they have been employed.”

8	The Tribunal found that the reference in that section to “categories” was a reference to Rochester and Gillingham ‘at risk’ staff, who were placed virtually on a par with Category A staff.

9	The Tribunal noted that the applicant, having originally been categorised as Category B, was not re-categorised as “staff with a disability” under the Disability Discrimination Act when the new procedures were introduced.

10	During September 1996 the applicant applied for a post as a Care Support Officer with the Young Offenders Team.  Although he was marked as “appointable reserve” he was rejected for the post and was told by one of the interviewers that he would have been appointed had he been a category A re-deployee.

11	On 14 November 1996 the applicant was advised of the Council’s incapability procedure.  Prior to this the Tribunal found that the Council had done nothing to find him alternative employment, apart from allowing him to continue his supernumerary post at the Centre.  

12	In December the applicant applied for a post as Trading Standards Officer’s assistant.  He was told it was not suitable as it involved heavy lifting, but the Tribunal found that no attention had been paid by the Council as to whether adjustments could have been made to the duties of the post so that the applicant would have been suitable. 

13	The applicant enquired about the post of Day Centre Officer which he saw advertised at the Centre where he was working.  The Tribunal accepted that the applicant did not apply because he had been advised not to partly because of the risk of assault by clients.  In or about February 1997 the applicant learned of a vacancy in the Finance Department but was told that it was reserved for Category A re-deployees.  In March 1997 the applicant saw an advertisement for the post of Care Manager Assistant, but upon making enquiries he was informed that the post was ringfenced to Category A domiciliary employees only.

14	During March 1997 the applicant’s supernumerary post at the Centre came to an end, but he continued to work on other jobs.  On 15th May 1997 an incapability hearing was held under the Council’s incapability procedure, as a result of which the applicant was dismissed with effect from 6 July 1997.  His subsequent appeal was dismissed.

15	The Tribunal heard evidence that in the year June 1996 to June 1997, 105 out of 1,100 Category A staff were re-deployed (9.45%) whereas only 2 out of 45 Category B staff were re-deployed (4.34%).

16	Having set out the law, facts and the parties’ arguments in commendable detail the Tribunal set out their conclusions.  In relation to the claim under section 5(1) of the Act, they found that in the light of Clark v Novacold Ltd [1998] IRLR 420 as it was then decided by the Employment Appeal Tribunal, Category A staff, whether disabled or not, were appropriate comparators.  The Tribunal were satisfied that the applicant received less favourable treatment by being categorised as a Category B re-deployee, and by being retained in that Category when the revised procedures were introduced.  The applicant did not face a “level playing field” when applying for vacancies as they were ringfenced for Category A staff.  The statistics produced by the Council emphasised the fact that a Category A re-deployee had more than twice as much chance of obtaining re-deployment than a member of staff in Category B.   The introduction of the new re-deployment procedures, whilst accepted as a genuine effort to come to terms with the Disability Discrimination Act, still amounted to “institutional discrimination against people with a disability.”  The Tribunal rejected the argument that the differential treatment could be justified for financial reasons.  The applicant’s claim under section 5(1) of the Act was therefore upheld.

17	The Tribunal went on to find that sections 5(2) and 6 applied to the circumstances in which the applicant was dismissed.  As a result of his disability the applicant was no longer able to fulfil the requirements of his job, so it was incumbent upon the Council to take reasonable steps to alleviate that disadvantage through adjustment.  The Council failed to take reasonable steps to prevent the dismissal of the applicant, particularly in the way that they had unreasonably regarded him as unsuitable for alternative, internal positions.  The Tribunal considered that the Council could have appointed the applicant as Day Centre Officer, as, although that would have been a promotion, he had been carrying out very similar duties since he returned to work on 1 July 1996.  In relation to the Trading Standards Officer’s assistant post, the Tribunal found that it was a position suitable for the applicant, but no consideration had been given to what adjustments in the duties of the post, such as lifting, could be made to accommodate the applicant.  In relation to both the posts, the Tribunal considered whether the Council took such steps as were reasonable in order to comply with the requirement in section 6 of the Act and made the following findings:

“It is clear that there is no evidence that they considered any of the adjustments set out in section 6(3) in relation to the Trading Standards Officer’s assistants post … 
…
…Mr Gerlack was concerned about whether the making of adjustments would be fair to the other Day Centre Officers, and does not seem to have considered the Council’s duties under the Act to make adjustments, if possible for persons such as Mr Mingo with a disability…We find that the Council did not take reasonable steps to make adjustments in these two instances … There is no evidence of any attempt by the Respondents [the Council] to make a financial assessment of costs under section 6(4)(c).”

18	The third matter before the Tribunal was a complaint of unfair dismissal.  Relying on Mansoor v Secretary of State for Education and Employment (1997) (unreported), the Tribunal found that as the Council had unlawfully discriminated against the applicant under the Act, the Council could not, therefore, be acting reasonably.  The Tribunal did not set out in detail the other submissions made on this issue, other than to state that the Council totally failed to do anything to assist the applicant in his search for re-deployment between August and November 1996, which was crucial as there was an ever-increasing number of Category A re-deployees.  Accordingly the Tribunal found that the Council had unfairly dismissed the applicant on the basis of his incapability.

19	The Council has appealed the findings of the Tribunal.   It is most convenient to set out the relevant legal provisions and then to set out the arguments in relation to each ground of appeal.  

The Disability Discrimination Act 1995

“5(1)	For the purposes of this Part, an employer discriminates against a disabled person if –
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified. 
(2)	For the purposes of this Part, an employer also discriminates against a disabled person if –
(a) he fails to comply with a section 6 duty imposed upon him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.
(3)	Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
(4)	For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.
…
6(1)	Where – 
(a)	any arrangements made by or on behalf of an employer, or
(b)	any physical feature of premises occupied by the employer,
place 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 arrangements or feature having that effect.”

1. Finding of less favourable treatment.

On behalf of the Council Mr Korn argued that the Tribunal erred in finding that the applicant had been discriminated against contrary to section 5(1) of the Act.  As the reason for the less favourable treatment must relate to the disabled person’s disability, it was contended that the Council’s knowledge of the disability was a central issue.  As the Tribunal did not consider whether the Council knew at the time that the applicant was disabled, its conclusion was wrong in law. 

The Tribunal also erred in identifying Category A re-deployees as appropriate comparators.  The Tribunal should have identified the proper comparator as either an employee who was suffering from a non-disabling form of incapacity or an employee who was unable to perform the duties carried out by the applicant for reasons which were unrelated to their disability.  The finding that there was “institutionalised discrimination” was also attacked as an error of law as under the revised procedure disabled staff were treated more favourably than those unable to perform their work due to incapacity or illness.  

Ms Williams on behalf of the applicant submitted that the grounds raised by the Council were without merit and there was no error of law in the judgment and no perverse findings of fact.  She argued that the Council could not raise the issue of its state of knowledge in relation to whether the applicant was disabled as they had accepted the Tribunal’s finding of 15 December 1997 that he was disabled within the Act and that issue was not before this Tribunal.  In any event, there was sufficient evidence before the Tribunal that the Council did have knowledge of the applicant’s injuries and treated them as disabling.

It was argued that the Tribunal’s approach to the matter of the Category A comparator could not be faulted.  The Tribunal did not have to consider whether the applicant could compare himself to another employee who was incapable of performing their duties.  The “like with like” approach was rejected by the Court of Appeal in its reconsideration of Clark v Novacold Ltd (1999) The Times 1 April, and held that comparison was to be made with others to whom the applicant’s treatment does not apply, whether or not their circumstances are different.  The applicant was therefore entitled to compare himself to those who were re-deployed for reasons other than incapacity, ie: Category A re-deployees.  

2. Finding of no reasonable adjustments.

The second ground of appeal was that the Tribunal erred in finding that the applicant had been discriminated against contrary to section 5(2) of the Act.  Mr Korn reiterated that at the time of the dismissal the Council did not know or accept that the applicant was disabled.  It was argued that it was reasonable of the Council not to consider the applicant for the post of Day Centre Officer as it was a substantial promotion and the applicant was not properly qualified for the position.  The Tribunal also erred in finding that the Council failed to make reasonable adjustments when the Tribunal accepted that they were unable to reach a conclusion on whether adjustment would have made any difference. 

The finding - that the Council failed to investigate the possibility of making reasonable adjustments regarding the Trading Standards Officer’s assistant position - was inconsistent with the evidence that the applicant would not accept a position which involved travelling.  Furthermore, the Tribunal’s drawing of a comparison between the applicant and a pregnant employee was fundamentally flawed.  

On the issue of reasonable adjustment, Ms Williams argued that this was a question of fact for the Tribunal and there were no grounds for a claim of perversity.  The Tribunal was entitled to consider that the Council, in not considering the applicant for certain appointments, failed to consider whether any reasonable adjustments could be made to those jobs.  Likewise, the Tribunal’s finding that the Council failed to take reasonable steps in order to prevent the dismissal of the applicant, was a finding of fact which could not be interfered with.

3. Finding of unfair dismissal.

It was argued that the Tribunal erred in concluding that a dismissal in breach of sections 5(1) and/or 5(2) of the Act necessitated a finding that the dismissal was unfair.  In any event the Tribunal gave inadequate reasons for its finding of discrimination and therefore made a finding which was perverse.

In response, it was argued on behalf of the applicant that the Tribunal correctly approached the statutory test in section 98 of the Employment Rights Act 1996, by asking itself whether the dismissal was for a potentially fair reason and if so, whether the employer acted reasonably in dismissing.  The Tribunal therefore approached the matter correctly and, following the authority of Mansoor, no error of law was disclosed.  The Tribunal made extensive findings of fact in the applicant’s favour and preferred his evidence to that given on behalf of the Council.  In its conclusion, the Tribunal set out in sufficient detail its relevant findings of fact, the arguments submitted by the parties, and why it concluded that the Council had not acted reasonably.

20	Having carefully considered the issues before us, we consider that Ms Williams is right with regard to each argument presented to this Court.  

21	On the question of the Council’s knowledge of the applicant’s disability, we do not feel that the Council are entitled to raise this issue before this Court as it was not a matter canvassed before the Tribunal.  The Council did not appeal the Tribunal’s decision of 15 December 1997.  In any event, we accept that the Council had knowledge of the applicant’s disability.  Ms Williams directed our attention to the Chairman’s Notes of Evidence of Ms Askew who appeared on behalf of the Council and said the following in evidence:

“I did approach the hearing on the basis that Mr Mingo was disabled.  I had it at the front of my mind.”

22	Given that statement, it is disingenuous of the Council to now argue, as they do, that they did not have knowledge of the applicant’s disability at the time of dismissal.  It is clear that the reason why the applicant was dismissed was because of his disability.

23	We reject Mr Korn’s submission that the Tribunal’s consideration of comparators was erroneous in the light of the Court of Appeal’s judgment in Clark.  The Tribunal are to be forgiven for relying on the Employment Appeal Tribunal’s decision in Clark, but that reliance does not vitiate the decision in any way.  It seems to us that the Tribunal were entitled to consider that the re-deployment procedures of the Council did not adequately reflect the statutory duty on employers under the Act.  The Council’s policy was to give preferential treatment to redundant or potentially redundant employees.  That meant that those with disabilities were relatively handicapped in the system of re-deployment.  

24	The structure of the Act is such as to require employers to take reasonable steps to accommodate disabled staff, or those who become disabled in the course of employment, as set out in section 6 of the Act and in the light of the statutory guidance and Code of Practice.

25	Whilst we have no doubt that the Council endeavoured to act in accordance with its own procedures, we agree with Ms Williams’ submission and with the Tribunal’s conclusion that they did not give effect to the employer’s obligations under the Act.

26	Had the Council’s policy permitted the applicant to be treated as a Category A re-deployee, on the facts found by the Tribunal, he would have been re-deployed and not dismissed.  On that basis the Tribunal were quite entitled to conclude that the Council had been guilty of unlawful discrimination.

27	Having arrived at that conclusion, it seems to us that the Tribunal were entitled to find that the dismissal had been unreasonable and unfair.  The Tribunal made findings of fact in favour of the applicant and preferred his evidence in preference to that given on behalf of the Council.  They stated that they accepted the arguments presented by Ms Williams and came to a unanimous decision that the applicant had been unfairly dismissed.  This is not a decision with which we can find any error of law.

28	Given our findings in this judgment the Council’s appeal is dismissed.