Appeal No. UKEAT/0049/04

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 19 October 2004

 
Before
THE HONOURABLE LORD JOHNSTON
MISS S B AYRE
MISS G B LENAGHAN

 

MRS ELIZABETH MURCHIE SIMPSON	APPELLANT

 

 
WEST LOTHIAN COUNCIL	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellant	Mr B Napier, Queen’s Counsel
Instructed by-
UNISON Scotland
14 West Campbell Street
GLASGOW   G2 6RX

 	

 
 
For the Respondent

 

 

 

Ms A Jones, Solicitor
Of-
Messrs Maclay Murray & Spens
Solicitors
3 Glenfinlas Street
EDINBURGH   EH3 6AQ

 

 

 

 

 

 

 

 

SUMMARY

DISABILITY DISCRIMINATION

Disability – reasonable adjustment

 

 

 

 

 

 

 

 

LORD JOHNSTON:
 
1.	The appellant in this case is profoundly deaf.  She was formerly employed by the respondent as a teacher.  She finally resigned her employment, apparently suffering from depression, which might or might not have been connected with what she complains about the way she was treated in the workplace.
 
2.	She brought a claim alleging disability discrimination which was dismissed and against that decision she now appeals.
 
3.	The case turns around whether or not in terms of section 5(2) of the Disability Discrimination Act 1995 (“The Act”) the employer should have made a reasonable adjustment in respect of the appellant’s condition, in particular by providing Deafness Awareness Training for other employees.
 
4.	There was a separate issue under section 5(1)(a) but that no longer arises.
 
5.	The substance of the decision of the Employment Tribunal is as follows:-
 
“In the opinion of the Tribunal the reasonable adjustments must relate to the person’s disability.  It is not sufficient that the person suffers from another condition, which may be related to the disability, but is secondary to it, for the obligation to arise.  There was no obligation on the respondents to make reasonable adjustments in relation to the depression suffered by the applicant, which was certainly related to her disability but which did not, in itself, by concession of Mr Hunter, amount to a disability.
 
The gist of the applicant’s complaints was that the respondents did not provide deaf awareness training nor transfer her to another post within their organisation.  The Tribunal accept that a reasonable adjustment could be transferring a disabled person to fill an existing vacancy.  Indeed, this is envisaged in Section 6 of the Act. It is not accepted, however, that the provision of deaf awareness training was a reasonable adjustment envisaged by the Act.  In any event, the Tribunal formed the view that the meeting in September 1999 was a genuine attempt by the respondents to provide such training.  It was according to the applicant’s evidence her colleagues who did not wish to participate in this training.
 
In order to succeed in her claim, the Tribunal would require to accept that the provision of this Deaf Awareness Training both related to the applicant’s disability and came within the scope of Section 6(2)(b) of the Act.  Section 6(2) provides that the obligation referred to in Sections 6(1) (supra) will only arise in relation to Section 6(1)(a) in relation to – (a) arrangements for determining to whom employment should be offered: (b) any term, condition or arrangements on which employment, promotion or transfer, training or any other benefit is ordered or afforded.
 
The Tribunal is of the opinion that the provision of Deafness Awareness Training does not fall within the scope of the legislation.  While Deaf Awareness Training would of course be something which an employer in such circumstances should consider offering to its employees in the interests of best practice it would be stretching the provisions of the Act to suggest that this is a reasonable adjustment which an employer should make.  In any event, when such training is suggested to relevant employees and they make it clear that they do not wish to participate in this training, it would not be reasonable of an employer to force them to take part.  Indeed, were an employer to force the issue in such circumstances, it is possible that more harm than good would be done to relations between staff.  An employer cannot force employees to become aware of issues of equality if they do not wish to participate.
 
It is not disputed that in the words of Mr Murphy, the first meeting in September 1999 was a “disaster”.  However, this in itself does not amount to less favourable treatment of the applicant on the ground of her disability, or that there was a failure to make reasonable adjustment.  The requirement of Deaf Awareness Related Training related to the applicant’s depression, not her deafness.  She may have been upset at the outcome of the meeting, but she was not treated less favourably on the grounds of her disability.  An effort was being made by the respondents to deal with the issues which the applicant had indicated were preventing her from returning to work and which were exacerbating her depression.  The fact that this was not successful does not in itself amount to less favourable treatment.  In any event Mr Murphy followed up the initial September 1999 meeting with a further meeting at which it appears to be common ground the staff were more receptive.
 
In the opinion of the Tribunal while the Act envisages an employer making a reasonable adjustment by providing training to the disabled person, it does not envisage forcing other employees to become aware of the issue concerning the person’s liability.  The respondents in the circumstances of the present case did take what steps were reasonable in the circumstances by organising the first meeting and (then when the outcome of that was not satisfactory) arranging a second meeting shortly there afterwards to address the applicant’s problems.
 
It should be mentioned in passing that the Tribunal noted that the first of these two meetings took place in September 1999, some two years before the applicant in fact resigned from her employment.  The applicant also spoke to the effect that around the time of this meeting she became depressed with her colleagues and had little expectation thereafter.  As the applicant was continually off work and as she was expressing cynicism and hostility towards Longridge School there seems to have been little point in trying to arrange further Deafness Awareness Meetings against the general background.”
 
6.	Mr Napier, Q.C., appearing for the appellant, pointed to certain inadequacies in the Tribunal’s approach on some fringe matters, not least in relation to the lack of findings in fact and the apparent lifting from the written submissions of the respondents substantial parts of those submissions as their own conclusions.
 
7.	Be that at it may, Mr Napier’s primary position was that the Tribunal had gone far too far in holding, as they apparently do, that the provision of Deafness Awareness Training does not generally fall within the scope of the legislation.  He said they should have concentrated on the particular case, and, in particular, concentrated properly as to whether or not in terms of section 6(4) of the legislation such training should properly be regarded as a reasonable adjustment that should have been taken by the employer.
 
8.	Miss Jones, valiantly sought, on behalf of the respondent, to support the Tribunal’s position, not least upon the basis, she submitted, by the time that the second apparent meeting had taken place on the issue of deafness, to put it in her own words the appellant had “effectively given up on the school and its staff”, and thus the adjustment if otherwise requisite would have made no difference after that date.
 
9.	She also suggested that an issue of time bar arises having regard to the approach adopted by the appellant.
 
10.	We have no hesitation in accepting the submissions of Mr Napier.  We consider the Tribunal did go far too far in dismissing out of hand any connection or any possible connection between a reasonable adjustment and the provision of Deafness Awareness Training.  We say provision, because, obviously, the employer cannot force the employees to partake in a scheme but they must, in our view, at least, in theory, make such available if it is otherwise to be regarded as a reasonable adjustment.
 
11.	It therefore seems to us that the real issue in this case is not whether, in general terms, Deafness Awareness Training can be regarded as a reasonable adjustment but rather whether in the particular context of this case in terms of section 6(4) it did amount to a reasonable adjustment that should have been taken.
 
12.	In these circumstances on this short point this appeal is allowed.  Regretfully the matter will have to be remitted to another Tribunal to reconsider the issue which we think applies, namely, section 6(4) and its relevance to the provision or otherwise of Deafness Awareness Training.  To keep the matter open we should specifically state that it is open, if appropriate at the second hearing if it takes place, for the respondent to raise the issue of time bar.
 
13.	In these circumstances the appeal is allowed and the case is remitted to a newly constituted Tribunal for a further hearing within these confines.