Appeal No. EAT/0206/03 RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 July 2003

Before
HIS HONOUR JUDGE PROPHET
MR G LEWIS
MR G H WRIGHT MBE

MISS C H NICHOLS	APPELLANT

THE GOVERNORS OF KINGSLEY SCHOOL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR O HYAMS
(of Counsel)
Instructed by:
Messrs Brain Barr Solicitors
Enfield House
Bury Old Road
Manchester M7 4QX	
For the Respondent	MR B UDUJE
(of Counsel)
Instructed by:
Northampton County Council Legal Services
PO Box 104
County Hall
Northampton NN1 1AW	

HIS HONOUR JUDGE PROPHET

1	Miss Nichols, who is a teacher, submitted an application to the Employment Tribunal at Leicester in January 2002 complaining in Box 1 of the application of “unfair dismissal, unfair treatment, Disability Discrimination Act breaches and personal injury by causing stress and anxiety”.  She named as her representative the Professional Association of Teachers.

2	In the Notice of Appearance the Respondent denied that they had dismissed Miss Nichols and set out in some detail Miss Nichols’ attendance record consequent upon sickness, and what had been done by them to endeavour to accommodate her difficulties in the light of the problems which her prolonged absences were causing for the school.

3	The denial of dismissal led to the Employment Tribunal holding a hearing on 7 May 2002 to consider a preliminary issue as to whether the Employment Tribunal could consider the merits of a complaint of an unfair dismissal if the application was submitted prior to Miss Nichols having been dismissed by her employer.

4	Although we do not have in our papers a copy of the Employment Tribunal judgment following that hearing, it is clear that the Employment Tribunal decided that the complaint of an unfair dismissal had been submitted prematurely and therefore could not proceed.

5	There was presumably nothing to have prevented Miss Nichols’ advisors then submitting a further complaint of an unfair dismissal once Miss Nichols had received her notice, but it seems from the judgment of the second Employment Tribunal hearing that that was not done.

6	That second hearing, in October 2002, was under the chairmanship of Mr J A Threlfell with Mrs Harper and Mr Khan as the lay members.  Because of the outcome of the first hearing and the absence of any further application that Tribunal could deal only with the complaint of disability discrimination as set out in the Originating Application.  According to paragraph 3 of the Employment Tribunal’s reasoning, that complaint rested, under the provisions of the Disability Discrimination Act 1995, upon an alleged failure by the employer to make an adjustment to the hours of work of Miss Nichols, consequent upon what has been accepted was her disability under the Disability Discrimination Act 1995; i.e. chronic fatigue syndrome (sometimes know as ME).  This was identified as applying to Miss Nichols in August 2001 and thereafter.

7	On that basis the Employment Tribunal had to go through a two-stage process in order to ascertain under sections 5 (2) and 6 of the Disability Discrimination Act 1995 whether there had been any failure by the employer to make an adjustment to her hours of work and, if so, whether the employer could justify such a failure.

8	The Employment Tribunal dealt essentially with that matter in paragraph 26 of their Extended Reasons which read as follows:

26	“Following the further December medical report, which suggested that she may be able to do two mornings a week from January, the respondent was able to make changes to create a teaching post of two mornings a week.  That was offered to the applicant.  The applicant decided not to take it, but did not explain what was wrong with it.  We consider that the respondent, once again, had taken such steps that were reasonable in the circumstances.  The post complied with the medical advice.  In the absence of any response from the applicant to show why that step was not suitable, we are satisfied that the respondent had complied with his duty under section 6 to take reasonable steps for the possibility that the applicant might return and it would [be] placing a higher standard than that of reasonable steps to suggest that other proposals should have been put forward.”

Having reached that conclusion, it was not necessary for the Employment Tribunal to move to the second stage which would have been justification.
9	We should however mention that from paragraph 27 it seems that the Employment Tribunal accepted that alternatively an argument on Miss Nichols’ behalf that there was a breach of section 5 (1) of the Disability Discrimination Act 1995 could be sustained.  They then moved on to deal with justification in that respect and found that it was a justified breach.

10	However, the Notice of Appeal to this Tribunal dated 23 January 2003 only challenges the Employment Tribunal’s finding in paragraph 26, i.e. that there was no failure to take reasonable steps by way of adjustments under section 6 of the Disability Discrimination Act 1995.

11	That appeal was directed by His Honour Judge McMullen on 14 February 2003 to be a full hearing before the Employment Appeal Tribunal and we have convened today for that full hearing.  The Appellant is represented by Mr Hyams of Counsel and the Respondent by Mr Uduje of Counsel and we are indebted to both of them for their helpful submissions to us.

12	Mr Hyams has not submitted a Skeleton Argument, as ordered by the Employment Appeal Tribunal, relying on the Notice of Appeal to form his skeleton submission.

13	The first point we have to deal with is Mr Hyams’ reliance on Cosgrove v Caesar & Howie [2001] IRLR 653, which was not quoted by the Tribunal in its reasons.  Mr Hyams says that the decision of the Employment Tribunal was contrary to the ruling in that case.  However, as Mr Uduje says, that case was concerned with an employer who had given no thought at all to making some adjustments in order to meet the problems raised by the employee’s disability.

14	That is a different situation to that in Miss Nichols’ case.  Where, as in her case, the employer has proposed adjustments to accommodate the needs of the employee, it must be a matter for the judgment of the Employment Tribunal to determine whether those proposals meet the test of taking such steps as are reasonable, or whether more was required of the employer to meet that test.  We know from paragraph 26 that in this particular case the Employment Tribunal reached the conclusion that further steps were not called for to meet the employer’s duty.  Insofar, therefore, as Mr Hyams has relied on Cosgrove, we are not persuaded that that case raises a ground of appeal which would justify our allowing this appeal.

15	We then turn to paragraph 6 (2) of the Notice of Appeal which argues perversity.  We are sure Mr Hyams recognises perversity is a difficult hurdle for him to overcome.  We are satisfied that having heard all the evidence the Employment Tribunal would have had fully in mind all matters including matters of timing as referred to by Mr Hyams in paragraph 6 (2).  We are unable to conclude that the Employment Tribunal’s judgment in respect of adjustments was either irrational or perverse in respect of those matters.

16	Ground 6 (3) of the Notice of Appeal is also a perversity argument.  The same high hurdle would have to be overcome.  The challenge is to the statement in paragraph 26 that the offer from the employer “complied with medical advice”.  Again that does seem to us to have been a matter for the judgment of the Employment Tribunal, particularly as the evidence did not indicate that the employer was ruling out further adjustments if Miss Nichols’ health improved.  The proposed adjustment essentially dealt with the offer of two mornings a week as compared with her contractual full-time position, in an endeavour to get Miss McNichols initially back to work.

17	However, Mr Hyams has also raised with us, and is entitled to do so, an issue which is not dealt with expressly in the reasons (see paragraph 6 (4) of the Notice of Appeal).  That is because the proposed adjustment did not merely include an adjustment to working hours but also incorporated a proposal to dismiss Miss Nichols.

18	There is a paragraph in the Code of Practice relating to disability discrimination which deals with the retention in employment of disabled employees: see paragraph 6 (20).

19	Mr Hyams refers to Clark v Novacold Ltd [1999] ICR 951 where Mummery LJ emphasises the need for Employment Tribunals to refer to relevant parts of the Code of Practice and that that duty is not necessarily met by a reference to their having generally referred to the Code.  That is particularly so where the relevant paragraph of the Code of Practice could well have some impact on the case.  Mr Uduje accepts that paragraph 6 (20) is a relevant part of the Code for the Employment Tribunal to have considered in this particular case.  It so happens, however, that neither of the representatives here today is aware of whether that matter was put before the original Employment Tribunal, or referred to during the hearing.

20	Our view on this, therefore, is that we will allow the appeal on this limited point only, this being necessary for the parties to be satisfied that the Employment Tribunal has fully considered all relevant matters relating to the position of Miss Nichols in her particular circumstances.

21	What we shall do therefore is to remit the matter to the same Employment Tribunal to consider and indicate, after hearing such representations from the parties’ representatives as they wish to advance to that Tribunal, whether their consideration of paragraph 6 (20) of the Code of Practice would lead them to any different conclusion to that which they originally reached.  It may be, of course, that it will not, but that is a matter for the Employment Tribunal.

22	Accordingly, the appeal is allowed to the limited extent indicated above.