Appeal No. UKEAT/0999/03/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 September 2004
Judgment delivered on 22 October 2004

Before
HER HONOUR JUDGE WAKEFIELD
MR C EDWARDS
PROFESSOR P D WICKENS OBE

MS H BALL	APPELLANT

LONDON BOROUGH OF WALTHAM FOREST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR N WOODHOUSE
(of Counsel)
Instructed by:
Messrs Faradays Solicitors
117-119 Seven Sisters Road
Finsbury Park
London N7 7QG	
For the Respondent	MISS C D'SOUZA
(of Counsel)
Instructed by:
London Borough of Waltham Forest
Legal and Democratic Services
Town Hall
Forest Road
London E17 4JA	

SUMMARY

Disability Discrimination

Disability discrimination – whether employer had complied with section 6 duty.

HER HONOUR JUDGE WAKEFIELD

1.	This is an appeal by Miss Helen Ball against that part of a decision of an Employment Tribunal sitting at Stratford in September 2003 by which her claim to have been discriminated against under section 5 (2) Disability Discrimination Act 1995 in the period July 2001 until her dismissal in October 2002 was found not to have been substantiated.  The Employment Tribunal also found that there had been unlawful discrimination for failure to comply with a section 6 duty in the period prior to July 2001 and that the Appellant had been unfairly dismissed.

2.	The Appellant also seeks an order for costs in the sum of £204.45 in respect of a cross-appeal mounted by the Respondent and later not pursued.

3.	The grounds of appeal as set out in the Notice of Appeal are that the conclusions of the Employment Tribunal in respect of 3 matters upon which they found that the Respondent had not acted unreasonably in the context of the section 6 duty to make adjustments, are perverse.  In the event that the appeal were to succeed on those grounds, there is a further ground of appeal regarding the finding that the Appellant had not been discriminated against by being dismissed, such dismissal having been justified within the meaning of section 5 (3) of the 1995 Act.

4.	The Extended Reasons for the decision, sent to the parties on 22 October 2003, are lengthy and very detailed as to the chronological factual background to the complaints.  For the purposes of this appeal the most relevant facts, which are also undisputed, are the following:

The Appellant was employed by the Respondent from 22 March 1999 as a Systems Analyst Programmer working in premises known as Laurel House.  On 13 October 2000 the Appellant and other members of her team were moved from the ground to the first floor of that building.  From first starting work in the open plan offices on the first floor the Appellant developed eye pains and headaches, later diagnosed as photosensitive migraine.  Various assessments of the Appellant’s working environment were made and stratagems to ameliorate the difficulties she was experiencing were tried, but from October 2000 the Appellant was periodically off work sick; and after 8 November 2000 never in the event worked for the Respondent again.

The Respondent, however, was from October 2000 seeking to enable and assist the Appellant to return to work and in June 2001 new lighting was installed in the first floor offices.  That lighting included individual switches for each employee to control the level of lighting at the individual workstations.  That new lighting was, the Employment Tribunal found, of suitable levels and by 5 July 2001 the Respondent was held to have complied with the section 6 duty.  However, the Respondent was found to have discriminated against the Appellant, contrary to section 5 (2) of the Act, in the pre-July 2001 period because of the delay in not carrying out the work to replace the lighting somewhat earlier.

In August 2001 the Appellant was first expressing concerns to her doctor that the new lighting might not be evenly dispersed.  The Respondent was made aware of these concerns that same month.  On 2 January 2002 the Appellant, not having returned to work in the meantime, visited Laurel House to collect a Christmas present.  In consequence of her experiences during that visit she informed the Respondent that the working environment was still not suitable for her since the light levels were uneven, some employees having the lights on in the office and some not.  

The Appellant was eventually dismissed in October 2002 following various meetings with the Respondent concerning her medical condition, her difficulties with the workplace and grievances.

5.	After setting out in paragraphs 17 to 21 of the Extended Reasons the situation in which the Appellant and the Respondent found themselves after July 2001, and having referred to the principles enunciated in the case of Mid-Staffordshire General Hospital NHS Trust v Cambridge [2003] IRLR 566, the Employment Tribunal continued in paragraphs 22 to 24 of the Extended Reasons as follows:

“22.	Taking these matters into account, we have decided that the manner in which the lights were operated on the First Floor of Laurel House were a substantial disadvantage to the Applicant.  Dr Barrie is quite clear that it is the cause of the migraines, and this was not disputed.  Despite our concerns about her report, this conclusion was clear.  We do not find that the lighting itself was a substantial disadvantage to the Applicant.  The evidence before us, though limited, shows no connection between the lights themselves and the migraines after July 2001.  All the evidence points to the connection being the mode of operation, with some lights on and others off.  This is not a fine distinction.  The Applicant’s evidence shows that it was the unevenness which caused her migraines after that date.  It was therefore the duty of the Respondent to take such steps as are reasonable in all the circumstances of the case to prevent this disadvantage.  The Applicant’s suggestion for an appropriate step, was the obtaining of a report relating to the whole office.  We cannot see how that would help.  It would have produce [sic] readings which we can readily predict; - it would be lighter where individuals have their lights on and darker where they have them off.  The obtaining of such a report would not propose how the Applicant’s susceptibility to photosensitive migraines should be addressed.  That is a medical problem.  We accordingly find that the obtaining of such a report, is not a step which would have the effect of preventing the disadvantage, namely the causing of photosensitive migraine to the Applicant.  We also find that it is not such an assessment as suggested in Mid-Staffordshire.  That case envisages that such assessments would assist the employer in deciding what steps would need to be taken to satisfy its obligations under Section 6.  It would not have served that purpose in this case.  The unevenness of lighting was obvious.  What was needed was advice on how to prevent this having an adverse effect on the Applicant.  Sadly, Dr Barrie, the only expert on the matter from whom we had evidence could not assist with recommendations upon how to achieve this.  We do not even know that there is a step which could resolve the problem.  The obtaining of such a report was, therefore, not a reasonable step which the Respondent should have taken.  We do not find them in breach of a Section 6 duty in this respect.

23.	This however is not the end of the matter, because the problem might have been resolved by an instruction to everyone on that Floor to leave their lights on at all times.  This would certainly have given an evenness of lighting across the whole Floor.  This was not, however, a course which the Applicant ever advocated, no doubt, for the reasons which she had expressed to Dr Barrie.  This was also the Respondent’s view.  It follows from this that it was not a step which it was practicable for the Respondent to take.  Everyone must have realised this since no-one gave the suggestion any consideration.  We accordingly find that this is not a step which it was reasonable for the employer to take.
24.	No other suggestion was put to us as to how the lighting across the whole floor could have been evened other than this.  There are, therefore, no other steps which the Respondent could have reasonably have been expected to consider.  Delay is not an issue in relation to this aspect of the matter as it was with the former, since we have found that there were no reasonable steps which the Respondent could have taken.”

6.	It is argued on behalf of the Appellant that the decision as to there being no further steps after July 2001 which it was reasonable for the Respondent to have to take in order to comply with a section 6 duty is perverse in respect of the following 3 matters:

(i)	The failure to obtain an assessment of the entire office environment;
(ii)	The failure to require all workers in the office to work with their lights switched on;
(iii)	The failure to obtain medical advice as to any steps which could be taken to prevent the uneven lighting from having an adverse effect on the Appellant.

7.	As to obtaining an assessment of the entire office environment, the Employment Tribunal said in their paragraphs 18 and 19:

“18.	The Applicant’s specific request in relation to this issue, was that an assessment should be carried out of the whole office.  We find it difficult to see how this would assist – the problem was obvious and was that some employees had their lights on and others off.  It did not require a further report to show this.  It is quite clear to the Tribunal that one of the Applicant’s main objectives throughout this period was to show that she had suffered an industrial accident.  That is a matter which is entirely immaterial for this Tribunal, although it might have great relevance to a claim for personal injury in the Civil Courts.  Such a report would only have indicated the relative levels of light.  It would not have shown how those relative levels affected the Applicant, a person suffering from photosensitive migraine.  The report would therefore not have been very helpful to her case.  What would have been more relevant would have been a report from a medical expert who could connect the relevant lighting with the Applicant’s condition and suggest ways of preventing the onset of her migraine.  That, however, was not what the Applicant requested.  When the Applicant did arrange a report, it did not specifically state that there was a problem with the lighting.  It referred to the adjacent lights not being on, but made no comment about the overall impact on the Applicant.  This report was prepared on the instructions of the Applicant’s solicitors and, presumably, those instructions, which we did not see, would have requested that the expert investigated those matters which those solicitors required to be looked into.  It may be that no instructions were given to assess the whole floor, or, alternatively, the expert did not consider it appropriate.  It is not for the Tribunal to guess.  What is clear, is that the report shown to us, does not state that there are lighting problems either at the Applicant’s workstation, or over the whole floor.  We find ourselves entitled to find, on the basis of this joint report, that there were no physical deficiencies with the lighting on the First Floor.  This does not of course mean that it did not cause the Applicant difficulties – that is a different issue.
19.	The Mid-Staffordshire decision suggests that the employer has an obligation to carry out an assessment.  In this case the Respondent had carried out several.  Some had revealed sub-standard lighting which the Respondent had then proceeded to remedy.  We do not see that the requirement to carry out an assessment is a continuing requirement each time a disabled person finds a further difficulty.  It is quite clear from the conversations recorded in the transcript of the Part 3 investigation that the Respondent thought that the assessments which they had carried out were sufficient, even though they only related to the individual workstation.”

8.	We find this analysis and the conclusion as regards this alleged failure unimpeachable.  This is not a case such as was Mid-Staffordshire of the employer having given no thought to any necessary adjustments or failing to commission any assessments of the working environment in order to assess the Appellant’s problems.  Since October 2000 there had been 6 workstation assessments including 3 by workers in occupational health and 1 by a worker in health and safety.  By the time of the Appellant’s dismissal, the contents of the Croner Consulting Report were known, since they were discussed in the Stage 3 meeting (see the Extended Reasons 3.51).

9.	The Appellant had also made it absolutely clear that her condition was triggered not only by the office in which she would be working but by the lights in the whole of Laurel House.  She had refused to work again anywhere in that building (see paragraphs 3.48 and 3.39 of the Extended Reasons).

10.	The fact that Mr Smith, in an internal email on 24 January 2002, suggested that “the workstation assessment should be expanded to take account of the entire office environment so that the best arrangements for all the lights and blinds can be determined” is not conclusive as to that being a reasonable step in the context of a section 6 duty.  In any event, it appears that those who prepared the Croner Consulting report did conduct such experiments (see paragraph 3.48 of the Extended Reasons), all of which the Appellant rejected as a solution to her problems.

11.	On the second point, as to instructing all employees to work with their lights on, the Employment Tribunal said at paragraphs 3.32 and 20 of the Extended Reasons the following:

“3.32	The Applicant told us that her difficulty was that the alternating darker and lighter positions within the office caused her migraines.  This arose because some employees like brighter lighting than others.  In particular, Nick whose work station adjoins that of the Applicant, preferred not to have his overhead lighting on.  Other workers also preferred to have their main lights off.  No attempt was made to enquire of Nick, or the others, whether they would be prepared to have the overhead lighting on so that there would be uniformity of light within the office.  The Applicant accepted, as did other witnesses, that it would be unlikely that the other employees would forego their preferences and turn on their lights to assist the Applicant.
…
20.	What is relevant to this situation, is the Respondent’s failure to address the issue of the pooling.  We have found that the Respondent was aware of the exact nature of the Applicant’s complaint about this.  It could have been resolved, quite straightforwardly, by requiring all employees to keep all the lights on the floor on at all times.  However, the Applicant herself accepts that this would not have been a step which would have been practicable, because, without doubt, one or a number of the Applicant’s colleagues would have objected.”

12.	We accept of course that it was not conclusive as to the reasonableness of such a step that the Appellant did not herself advocate it: see for example Cosgrove v Caesar & Howie [2001] IRLR 653 where Lindsay J giving judgment in the EAT said:

“7.	There will, no doubt, be cases where the evidence given on the applicant’s side alone will establish a total unavailability of reasonable and effective adjustments.  But it does not seem to us to follow that because a former secretary, long absent from the firm and clinically depressed to the point of disability and her general practitioner also (the latter, at least, being unlikely to know what office or other practicabilities were open to the employer) could postulate no useful adjustment, that the section 6 duty on the employer should, without more, be taken to have been satisfied.”

13.	The conclusion on this aspect of the Employment Tribunal, as already quoted in their paragraph 23, we find to be an entirely proper one in the light of the evidence before them and their correct analysis of the legal principles.

14.	As to the third point regarding the reasonable steps to accord with the section 6 duty, we have likewise not been persuaded that the decision of the Employment Tribunal that a further medical report was not required was in any way perverse.  Dr Barrie, Consultant Neurologist, had recently been instructed by the Appellant’s solicitors and had prepared a full report which was before the Employment Tribunal.  Of that report they said, in paragraph 21 of the Extended Reasons:

“21.	It is also a matter of importance, that the Applicant’s medical advisers have never provided specific details identifying the exact cause of the Applicant’s problem.  All of the reports and letters refer to it in general terms.  This is particularly noticeable in the detailed report which Dr Barrie has submitted to the Tribunal.  Whilst she details the history of the matter, she does not identify the different circumstances before and after the installation of the new lights.  She does not mention, in her history, that the first complaint was only about glare.  Later in the report, she refers to unevenness of light, but her failure to distinguish between the two types of complaint causes us to have concern about the extent upon which we can rely upon her report.  We appreciate that she refers to the unevenness of lighting, which appears to be what she considers to be the main area of complaint.  So far as we are aware, she has not visited the premises.  We are also concerned to note her references to “abnormal” and “incorrect” lighting.  Both seem to be an exaggerated description, although we accept that the lighting initially was inadequate.  After June 2001 the lighting was not incorrect or inadequate, although the method of operating it might be.  She appears to recognise this, since she records:
“However, although she repeatedly asked for even lighting, her colleagues, unfortunately, stated that even lights would be too bright for them.”
For these reasons, we do not find that we can take Dr Barrie’s report as confirmation that the lighting installed in June 2001 was inappropriate in itself.  The mode of operating it was what caused the Applicant problems.  Dr Barrie was also unable to offer any suggestions as to how the situation should be corrected.  When asked this question, she says:
“It is outside my expertise to comment on what sort of lighting would prevent the Applicant from developing photosensitive migraine”.”

15.	We are satisfied that there was a proper basis for the Employment Tribunal to have found that the commissioning of yet another medical report was not a reasonable step for the Respondent to have taken.  It must be borne in mind that the employer’s section 6 duty is to take reasonable steps – it is not an absolute duty to find a solution.

16.	Turning then to the appeal against the Employment Tribunal’s finding that the dismissal was justified under section 5 (3) of the Disability Discrimination Act 1995, in the light of our findings thus far that part of the appeal must necessarily also fail.
17.	Finally, we turn to the costs application as regards the cross-appeal.  The Employment Tribunal had found that the dismissal was unfair under section 98 of the Employment Rights Act 1996 on the sole basis of a possibility of bias by Mr Hurren who made the decision to dismiss the Appellant and who had been the person named by her in a previous ‘grievance’.  The cross-appeal was made against that part of the Employment Tribunal decision which found that the Appellant had been unfairly dismissed.  The Respondent’s Answer which set out the terms of the cross-appeal also stated:

“This cross-appeal will only be pursued if the Appellant appeals against the decision of the ET at the remedy hearing on 22 March 2004, that the Polkey reduction (on consideration of the question whether a fair procedure would have arrived at a different decision: Decision paragraph 37) should be 100%”

In the event, the Appellant did not appeal that remedy decision and the cross-appeal was therefore not pursued.

18.	The Appellant claims to have incurred costs in the sum of £204.45 in preparing to defend the cross-appeal.  It is pointed out on behalf of the Appellant that the cross-appeal was made out of time and it is contended that the conduct of the proceedings was unreasonable, in particular because “the Respondent appeared to be seeking to bully the Appellant” in order to deter her from appealing the remedy decision.

19.	We are not persuaded that in bringing the cross-appeal the Respondent was acting in any such manner as is described in Rule 34 of the Employment Appeal Tribunal Rules 1993.  There was a potential argument as to the correctness of the unfair dismissal decision.

20.	The appeal is dismissed.  The application for costs is refused.