Appeal No.	EAT/1197/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 2002
Judgment delivered on 1 May 2002

Before
MR COMMISSIONER HOWELL QC
DR D GRIEVES CBE
MR W MORRIS

MRS M E OAKLEY	APPELLANT

WAKEFIELD & PONTEFRACT COMMUNITY
HEALTH SERVICE NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR J ASHWORTH
(of Counsel)
Instructed By:
Messrs Chadwick Lawrence
29/31 Commercial Street
Morley
Leeds LS27 8HX	

MR COMMISSIONER HOWELL QC:

1	This is an appeal by Mrs Margaret Elysia Oakley against the decision of the Leeds Employment Tribunal issued on 14 August 2001 dismissing her claims of unfair dismissal and disability discrimination. At the conclusion of the preliminary hearing, having heard counsel on her behalf, we concluded that we were not satisfied there were any sufficiently arguable grounds in law to warrant our directing that the case should go forward to a full inter partes hearing, and we accordingly unanimously dismissed her appeal.  This reserved judgment explains the reasons, which we were unable to give in detail at the time because of the pressure of our court list on that day.

2	Mrs Oakley was employed by the Respondents, the Wakefield and Pontefract NHS Trust, from 11 September 1995 to 7 September 2000 as a Health Visitor.  Her duties involved visiting patients in the Respondents’ geographical area and included a considerable amount of driving to and from the various GP practices to which she was attached, and also going to visit the patients themselves.  There was never any complaint about the quality of her work, but both she and the Respondents were unfortunate in that she had an unusually high level of sickness absence over the years, due to a variety of injuries and illnesses identified in the evidence and the Tribunal’s findings.  Among these was a long-term problem with her back. There is no doubt or dispute that this was both serious and genuine, and caused her difficulties, in particular with such things as driving, because of the pain and discomfort she suffered from having to sit in one position for any substantial length of time.  

3	However, as recorded by the Tribunal, her continuing difficulties with her back were not the reason for her dismissal.  That took place because the Respondents concluded that even apart from these, the general level of her sickness absences was so high that she was and was likely to remain unable to provide an acceptable regular level of attendance to maintain the necessary service to the Respondents’ patients so that, without accusing her of any deliberate exaggeration, they had to terminate her contract of employment.  Having considered the evidence the Tribunal recorded, as a finding of fact, that they were satisfied that her underlying back problem had been excluded as a factor when the decision was taken to confirm the termination of her contract; and that the reason for her dismissal, characterised in the Respondents’ Notice of Appearance dated 7 December 2000 as “Capacity / Some other substantial reason” had fallen within the statutory definition of capability in section 98(2) Employment Rights Act 1996 and had been a potentially fair reason for dismissal.  They further held that the decisions taken to dismiss her and to confirm her dismissal had in each case been within the band of reasonable responses of an employer, since what they referred to as her actual and continuing propensity for absence was substantially greater than any reasonable employer could accept.  Consequently they held her dismissal to have been fair.

4	The Tribunal then turned to give separate consideration to her complaint that her dismissal had amounted to an act of discrimination against her as a disabled person and that the Respondents had failed to take into account and explore reasonable adjustments under section 6 Disability Discrimination Act 1995.  They first held that the Applicant had satisfied them that she was within the definition of a disabled person under that Act, relying on her unchallenged evidence as to the difficulty she experienced in carrying out day-to-day activities.  However, they rejected her complaints that she had suffered discrimination contrary to the Act, either in her dismissal or in the Respondents having failed to make any reasonable adjustments required of them, for reasons which appear so far as material from the following passages in paragraphs 24 and 25 of their Extended Reasons:

“24  We then considered whether the Applicant had been the subject of unlawful discrimination in respect of her dismissal. …  If there was discrimination, it would be unlawful under s.4(2)(d) of the Act.  The issue which seemed crucial to this Tribunal was whether the treatment of the Applicant was ‘for a reason which related to the disabled person’s disability’.  That disability, in this case, is clearly put by the Applicant as relating to her lower back problem.  The only medical evidence before the Tribunal was that contained in Dr Beaumont’s reports [Dr Beaumont was the Respondents’ Occupational Health Service Advisor].  It is a matter of fact as to whether the decision to dismiss the Applicant and the subsequent decision to uphold that decision were made for reasons relating to the Applicant’s disability.  We find as a fact that they were not so made.  The reason the Applicant was dismissed was because she had failed to attend for work on a regular basis in relation to matters other than her back problem.  At every stage, the absences that might be thought to relate to the back problem were entirely discounted.  Although, therefore, there was less favourable treatment, that was not for a reason related to the disability and does not come within s.5(1) of the 1995 Act.  …  . 
25  We then turned to consider whether the Respondent failed to comply with its duty under s.6 of the 1995 Act. …  The only matter that was brought to the attention of the Respondent, either by Dr Beaumont or the Applicant or both, was the Applicant’s difficulties in respect of driving.  The Respondent took note of that and made allowance for it in the manner that we have set out above [this related to earlier findings by the Tribunal as to changes in working arrangements and not requiring her to drive for periods in excess of 15 minutes, all of which had been accepted by the Respondents].  The Applicant appears to us to have accepted that adjustment without demur.  There is no evidence whatsoever that the Applicant raised any other issues with the Respondent.  It seems to us, both as a matter of common sense and of law, that an employer is only required to make such adjustments as are requested of it by the employee.  It is the employee who knows what changes might be required to enable her to overcome the difficulties caused by the disability.  In the absence of any request, we do not consider there was any obligation on the part of the Respondent to carry out any further adjustments.  It follows that the Respondent has complied with its duty under s.6 to take such steps as are reasonable.  The very word ‘reasonable’ imports some liability on the part of the Applicant to indicate to the Respondent what, if any, changes might be made.  We also rely upon the words ‘in all the circumstances of the case’.  That phrase seems to us to allow us to consider the lack of any request by the Applicant for any changes over and above those actually made.”

5	Mrs Oakley seeks to appeal against the rejection of both her claims, on grounds set out in a lengthy Notice of Appeal submitted by solicitors on her behalf dated 24 September 2001 and developed on her behalf by Mr Ashworth, who appeared on the appeal hearing before us, with the aid of a 17-page skeleton argument.  For present purposes the contentions advanced may be grouped as follows.  First, the Tribunal misdirected themselves by applying too narrow a definition of “impairment” under section 1 Disability Discrimination Act 1995 and in identifying the Applicant’s back condition as the sole such impairment giving rise to disability for the purposes of the Act.  Secondly, no reasonable Tribunal could have concluded on this evidence that a respondent Health Authority equipped with medical and occupational health reports had acted reasonably or without discrimination in dismissing the Applicant as they did, and in failing to define and make further reasonable adjustments as an alternative to dismissal or otherwise.  Thirdly, the Tribunal had misapplied the law in holding that the Respondents’ failure to consider or make further reasonable adjustments was not a breach of the requirements of section 6 of the Act because she had not asked for any further adjustments to be made.  Fourthly, the Tribunal had failed to consider relevant requirements of the 1996 Code of Practice on disability discrimination, in particular the provisions requiring an employer to be flexible and paragraph 6.21 stating that “Dismissal … of a disabled person for a reason relating to the disability would need to be justified and the reason for it would have to be one which could not be removed by any reasonable adjustment”.  Fifthly, the Tribunal had reached what was said to be a “contrary” (which we take to mean perverse) conclusion in holding the Applicant’s dismissal fair by reference to what it called a “propensity” for absence, which was a word carrying adverse implications.  

6	As already indicated we were not persuaded that any of these contentions showed an arguable ground to warrant a full hearing of the appeal.  The Tribunal’s decision does not show that they misdirected themselves in any way as to the proper meanings of “impairment” and “disability” for the purposes of the 1995 Act, and their identification of her long-term back problem as the only aspect of her condition bringing her within the protection of the Act was not only justified, but the only reasonable finding on the case as made out before them.  The Applicant’s back condition was consistently and repeatedly identified throughout her own Originating Application document as the single condition amounting or giving rise to long-term impairment (see paragraphs 2, 5, 6, 9, 10, 13.1); and was the only condition identified in the evidence or findings recorded by the Tribunal capable of falling within the statutory definition.  Mr Ashworth was unable, when we asked him, to identify any evidence that had been before the Tribunal that could have possibly led them to any other conclusion.

7	We are similarly unable to accept it as arguable that the Tribunal’s reasoned conclusion holding the dismissal to have been fair and non-discriminatory because, as they found as a fact, it had been for separate reasons not related to the Applicant’s disability, was perverse.  As the Tribunal expressly recorded, the Applicant’s back condition had been excluded as a factor in the decisions taken to dismiss her, and we can see no basis in law either for challenging that as a finding of fact or for questioning the conclusions the Tribunal drew from it.  Thirdly, although we accept as a general proposition that the question of what steps are reasonable in all the circumstances of the case for an employer to have to take under section 6 Disability Discrimination Act 1995 does not depend only on whether the employee has put forward specific suggestions about what he or she wants done, we have not been persuaded that the way the Tribunal formulated their conclusion on the issue of “reasonable adjustments” in the context of this case discloses any material error of law to warrant our directing a full hearing.  Again Mr Ashworth acknowledged that apart from the matters dealt with in the evidence and the earlier parts of the Tribunal’s decision, where the suggestions of Dr Beaumont about the arrangements that should be made to assist the Applicant with her driving difficulties had all been accepted by the Respondents, there had been no evidence before the Tribunal or indication put forward by or on behalf of the Applicant of any possible further adjustment that might or ought to have been considered as reasonable in the circumstances.  In that context, and with an Applicant who was herself a Health Visitor having, of course, the most direct knowledge of the nature of her own condition and what was required to deal with it, the Tribunal’s approach to what was required is not in our view open to challenge as a matter of law.  So far as we can see there was nothing before them, by way of either evidence or contention, which could have led any reasonable Tribunal to the conclusion that there had been any breach of section 6.

8	Fourthly the contention that the Tribunal erred in failing to refer to the Code of Practice appears to us equally unarguable, since the suggestion of a breach of paragraph 6.21 quoted above depends on the dismissal having been for a reason relating to the disability, and on the findings of the Tribunal this one was not.  Finally, we were unable to see that there was any arguable ground for saying that the Tribunal’s conclusion on unfair dismissal was invalidated by their use of the word “propensity”:  both the conclusion of fact and the use of this word to describe the situation of an employee habitually absent from work for longer periods and at more frequent intervals than were reasonably acceptable were, as we have already indicated, justified on the evidence and facts found.

9	For those reasons, this appeal is dismissed.