Appeal No. EAT/101/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 April 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR J R CROSBY
MR P R A JACQUES CBE

MR D WIGHT	APPELLANT

THE EAST RIDING OF YORKSHIRE COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P KIRTLEY 
(of Counsel)
Instructed By:
Messrs Graham & Rosen
Solicitors
8 Parliament Street
Kingston upon Hull
HU1 2BB	
For the Respondent	MR N WRAY
(of Counsel)
Instructed By:
East Riding of Yorkshire
Council Legal Services
County Hall
Beverley, East Riding of
Yorkshire
HU17 9BA	

JUDGE PETER CLARK:
1.	By a decision with extended reasons promulgated on 7 August 2000 (the liability decision) an Employment Tribunal sitting at Hull under the chairmanship of Mr P A Morris dismissed the Applicant’s complaint of unfair dismissal but upheld his complaint of direct disability discrimination contrary to section 5(1) of the Disability Discrimination Act 1995 (DDA) brought against his former employer, the Respondent Council.  Neither party has appealed that decision.  By a further decision, promulgated with extended reasons on 27 November 2000 (the remedies decision) the Tribunal awarded the Applicant, Mr Wight, compensation of £2000 plus £137.32 interest in respect of that unlawful discrimination.  Against the quantum of the award the Appellant now appeals and against part of the Tribunal’s reasoning in the remedies decision, the Respondent has entered a cross-appeal. 

The Liability Decision
2.	Between 9 September 1991 and his dismissal effective on 21 November 1999, the Appellant worked as a labourer engaged in roofing work within the Respondent’s Direct Service Organisation Department (DSO).

3.	In 1998 his partner in the roofing work in which he was engaged transferred and later retired from the Respondent’s service.  Thereafter the Appellant experienced bullying at work which resulted in his developing irritable bowel syndrome (IBS).  He complained to management about that bullying.  He was off work from about July 1998 until, in April 1999, he was dismissed in breach of the Respondent’s procedures.  Following intervention by his trade union he was then reinstated and transferred to work which was physically appropriate, in that he was located near to toilet facilities, but did not address the underlying psychological problem, IBS being described as “the archetypal psychosomatic disorder”, namely that he continued to work in close proximity to those people about whom he had complained of bullying.  He became clinically depressed.

4.	The Respondent received a final medical report from Dr Innes, the Occupational Health Physician, dated 9 September 1999, which contained that doctor’s opinion that the Appellant was “currently unfit for work and unfit for redeployment.”  The Tribunal noted that Dr Innes was not asked at that stage for a prognosis of when the Appellant might be fit, what steps the Respondent might take which would enable him to return to work, nor was he asked to consider the position under the terms of the DDA.  The Respondent then proceeded to dismiss the Appellant on grounds of ill-health capability by notice dated 28 September which took effect on 21 November 1999.

5.	Dealing with the disability complaint the Tribunal was first required to resolve the issue as to whether or not the Appellant was disabled within the meaning of section of 1 DDA.  They found that he was.

6.	The next question was whether he had been treated by the Respondent less favourably than others who were not disabled by reason of his disability (section 5(1)(a)).  Again the Tribunal found in favour of the Appellant.  That less favourable treatment consisted of the second dismissal in November 1999, (see section 4(2)(d)), in addition to the first dismissal, (although any complaint in respect of that first dismissal was time-barred), subject to the defence of justification under section 5(1)(b).  It is important to note here section 5(3):

“Subject to sub-section (5), for the purpose of sub-section (1) treatment is justified if, but only if, the reason for it is both material… and substantial.”

Section 5(5) provides:

“If in a case falling within sub-section (1) the employer is under a section 6 duty in relation to the disabled person, but fails without justification to comply with that duty, his treatment of that person cannot be justified under sub-section (1) unless it would have been justified even if he had complied with a section 6 duty.”

7.	Since there is no appeal against the liability decision we must accept it.  Looking at the Tribunal’s reasoning, at paragraph 2(i) of their liability reasons, they appear to be saying this:
Since the Respondent made no attempt to determine what adjustments might be made in very broad terms in order to enable the Appellant to return to work for the Council, there was a failure to make adjustments under section 6 which, by virtue of section 5(5) read with section 5(3), precluded the Respondent from successfully raising the defence of justification under section 5(1)(b) of the Act.  It followed that the section 5(1) complaint succeeded in relation to the second dismissal in November 1999.

The Remedies Decision
8.	The Tribunal accepted, for the purposes of assessing compensation, that the relevant act of discrimination was the second dismissal.  The Appellant claimed compensation under 2 heads:
(1)	damages for injury to feelings and
(2)	loss of earnings following the second dismissal.

9.	Under the first head the Tribunal awarded the sum of £2,000 plus interest.  Under the second head they awarded nothing.  Their reasons for making no award for loss of earnings are contained in paragraph 3 of the remedies reasons.  We should set that paragraph out in full:

“The Tribunal is satisfied on the evidence of the Applicant that, by the time he was notified of his dismissal by letter dated 28 September 1999 and by the time that termination had occurred on 21 November 1999, the Applicant was unable to accept any offer of employment from the Respondent because he had formed to view that the Council was not to be trusted and that if that was a medical condition it was a specific phobia which was work related and was not in fact a disability under the Act.  The result is that had the Respondent addressed the matter of disability discrimination and taken steps to see what adjustments could be made, on the evidence of the Applicant given today, it is clear that he would not have been able to take up any other job with the Council and in consequence any loss of earnings does not flow from the discriminatory act which is dismissal on grounds of ill health, which happened in this case to be a disability under the Act, but from an opinion that the Applicant had formed which was specifically work related in consequence of which he is not entitled to any damages in respect of loss of earnings.  There was something inevitable in the fact that he would be out of work and not earning.  That was not related to his statutory disability as such.”

The Cross-Appeal
10.	This is no longer pursued by Mr Wray and we therefore dismiss it.

The Appeal
11.	Mr Kirtley submits that in declining to make any award for the Appellant’s lost earnings consequent upon the unlawfully discriminatory dismissal and in limiting the award for injury to feelings to the final act of dismissal, adding insult to injury as the Tribunal put it, they failed to apply the tortious principles referred to in section 8(3) DDA.  We accept that submission.  

12.	In so doing we do not rest our decision on the factual distinction drawn between the DSO and the Council generally so far as the Appellant’s loss of trust and confidence is concerned.  It is clear to us that he lost confidence as a result of what may properly be described as the discriminatory treatment culminating in his dismissal.  Although it is right to say, as Mr Wray submits, that there was here no complaint under section 5(2), that does not render any failure by the Respondent to make reasonable adjustments under section 6 immaterial to the complaint under section 5(1).  It is an inevitable consequence of the Tribunal’s rejection of the Respondent’s defence of justification under section 5(1)(b), on the facts of this case, that the Tribunal was satisfied that the Respondent had, for the purpose of section 5(5), failed without justification to comply with their duty to make reasonable adjustments under section 6.  The relevant adjustment was an offer of transfer to a post within the Respondent’s organisation away from the environment in which bullying by other workers had caused the Appellant’s disability.

13	In these circumstances his eventual loss of confidence was related to, not independent of the discrimination under section 5(1), itself rendered unlawful in part by the failure to make reasonable adjustments by virtue of section 5(5).  It is thus material to the assessment of loss flowing from the statutory tort.

14.	Equally, we reject Mr Wray’s submission that the Tribunal’s finding of a fair dismissal under the Employment Rights Act 1996 somehow negates any loss flowing from the dismissal under DDA.  The statutory torts are different, although each arises out of the same act, the relevant dismissal.

15.	The correct approach, in our judgment, to the question of loss under section 8(3) is this; what are the chances, if the Respondent had complied with its statutory duty under DDA, that the Appellant would have retained his employment?  In practice that means, on the facts of this case, what are the chances that if reasonable adjustments had been made he would have recovered his health so as to be able to return to work with the Respondent in some other position?  That question will depend upon a combination of a finding as to the proper adjustment to be made and a finding on medical evidence as to whether or not he would have recovered sufficiently to take up an alternative post.

16.	Further, we accept Mr Kirtley’s submission that the Tribunal artificially restricted compensation for injury to feelings to the single act of the second dismissal.  In our judgment it was for the Tribunal to assess the effect of the Respondent’s actions related to their treatment of the Appellant’s disability which culminated in the unlawful act, that is the final dismissal.

17.	In these circumstances we shall allow this appeal and remit the remedies issue only to a fresh Tribunal for rehearing, given the findings of the first Tribunal on liability.  At that remitted hearing the question of compensation under both heads will be at large.  Each party will be at liberty to call such evidence, including medical evidence, as he sees fit to answer the questions which we have posed.