Appeal No. UKEAT/0090/12/RN

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

	At the Tribunal
	On 30 January 2013
	   Judgment handed down on 9 May 2013

Before
HIS HONOUR JUDGE PETER CLARK
MS K BILGAN
MR S YEBOAH

REDCAR AND CLEVELAND PRIMARY CARE TRUST 	APPELLANT

MISS R LONSDALE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS GEORGINA NOLAN
(of Counsel)
Instructed by:
Messrs Eversheds LLP
Central Square South
Orchard Street
Newcastle upon Tyne
NE1 3XX	
For the Respondent	MR ADAM MUGLISTON
(of Counsel)
Instructed by:
UNISON Legal Services
UNISON Centre
130 Euston Road
London
NW1 2AY	

SUMMARY
DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal

Employment Tribunal finding of failure to make reasonable adjustment and unfair dismissal upheld.  Claimant’s cross-appeal against finding that dismissal was not discriminatory also upheld.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	We have before us for full hearing an appeal by the Respondent, Redcar and Cleveland PCT and a cross-appeal by the Claimant, Miss Lonsdale against the Judgment of an Employment Tribunal chaired by Employment Judge Wade and sitting at North Shields on 3-6 October 2011.  That Judgment was promulgated with reasons on 3 November 2011.

The facts
2.	The Claimant commenced the relevant period of continuous employment with the Respondent or its predecessor on 1 January 2008 as a Senior Occupational Therapist on band 6.

3.	In August 2008 she suffered a significant deterioration in her vision.  On 29 December 2008 an Occupational Health assessment concluded that she could not, as a result of her visual impairment, continue in her existing role; redeployment to a suitable role was recommended.  The only suitable alternative was a band 4 post as Workforce Development Co-ordinator.  The Claimant commenced a trial in the alternative band 4 role on 16 February 2009 with the benefit of various adjustments at a cost to the Respondent of £6,000.  She was confirmed in the role on 1 June 2009 having applied unsuccessfully for a band 6 role in May and then a different band 4 role in June.  Her visual disability precluded her from patient interaction.  It is common ground that she was disabled for the purpose of the Equality Act 2010.

4.	In the summer of 2010 the Respondent embarked on a genuine restructuring exercise involving the deletion of posts.  By letter dated 10 August 2010 the Claimant was notified that her post of Workforce Development Co-ordinator was at risk of redundancy.  It was one of 30 posts at risk.  A process of consultation commenced on 16 August.

5.	The Respondent adopted an HR Framework to deal with possible redeployment of those employees occupying posts at risk.  At stage 1 staff whose posts were to be eliminated could apply for up to 5 posts at their present grade (in the Claimant’s case, band 4) or one post at one grade above but no higher.  The Claimant was thus limited to applying for one band 5 post.  At stage 2, staff could apply for any post in competition with their colleagues.

6.	At stage 1 the first step was slotting in, without competition, where there was a close match between the new and old posts.  Next were posts where the candidate had the required skills for and could be considered without competition; thirdly, where there was more than one candidate with the required skills, competitive interviews would take place.

7.	The Claimant’s position was that at stage 1 she was prevented from applying for the role of Staff and Patient Safety under the HR Framework because it was at band 6, two grades above her present post, although on the same level at which she had joined the Respondent prior to the onset of her disability.

8.	Having considered the Claimant’s representations the Respondent, through Ms Tempest, declined to permit her to apply for the band 6 Staff and Patient Safety role, citing the HR Framework which ‘had been impact assessed to ensure that there are no adverse effects resulting from any of the protected characteristics covered by the Equality Act’.

9.	The ET considered the Respondent’s impact assessment (paras. 14-16) and noted the Respondent’s acknowledgement of the fact that there was a responsibility to take account of disabled peoples’ disabilities even where that involves treating them more favourably than others.  However, Mr Gilligan, who chaired the panel which ultimately dismissed the Claimant, despite his diversity training and 30 years experience in clinical practice, believed that there was no duty to treat disabled people more favourably in a redundancy situation as the HR Framework acknowledged.  He had never come across a registered blind person (as was the Claimant) in a clinical post.

10.	On 15 November 2010 the Claimant was given notice of dismissal, that notice expiring, following an extension, on 31 December.

11.	On 20 November the Claimant appealed against her dismissal.  On 23 November she expressed interest in the band 6 Patient and Staff Safety role.  On 29 November a colleague, then a band 6 HR Adviser, also expressed interest in that role.  That person also suffered from a disability, which affected her driving intermittently.  The ET found (para. 19) that her expression of interest form was, on the face of it, completed more comprehensively than was the Claimant’s.

12.	An appeal hearing before a panel chaired by Ms Tempest took place on 30 November.  At that meeting the panel concluded that the Claimant could not be allowed to apply at stage 1 for the Patient Safety role, whilst finding that she appeared to demonstrate some of the relevant skills and competencies.  She could apply at stage 2 if it remained unfilled.  In the event it was filled at stage 1 by the former HR Adviser following consideration by a matching panel which also concluded, informally, that the Claimant did not meet the essential criteria for the role.  The reason for that view was never explained (reasons, para. 20).  The Claimant’s appeal was dismissed.  Her employment ended on expiry of her notice on 31 December 2010.

13.	By her claim form ET1 presented to the ET on 14 February 2011 the Claimant complained of disability discrimination and unfair dismissal.  All claims were resisted by the Respondent.

The ET decision
14.	The ET held that the Respondent had failed to make a reasonable adjustment by permitting the Claimant to apply for the band 6 Patient and Safety role, allowing her to compete with the other (successful) candidate at stage 1 of the restructuring process.  They did not consider that slotting the Claimant into that role was a reasonable adjustment.  The dismissal was by reason of redundancy and was unfair for the reasons given at para. 39.  However, the dismissal was not itself an act of discrimination arising from her disability (see para. 40).  A remedy hearing has yet to take place.

The appeal and cross-appeal
15.	The Respondent appeals the ET’s findings both as to its failure to make a reasonable adjustment and unfair dismissal.  The Claimant challenges the finding at para. 40 that her dismissal was not discriminatory by way of her cross-appeal.   It is convenient to take those three issues in the following order: (1) reasonable adjustments (2) disability dismissal (3) unfair dismissal.

Reasonable adjustments
16.	The statutory duty to make reasonable adjustments is now contained in s.20 Equality Act 2010.  The first requirement (s.20(3)) is a requirement, where a provision, criterion or practice (PCP) of (here, the Respondent) puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to take to avoid the disadvantage.

17.	Section 20(3) EqA re-enacts the former s.4A Disability Discrimination Act 1995, as amended and so the old case law remains relevant when construing the s.20(3) duty.

18.	In Environment Agency v Rowan [2008] IRLR 20, para. 27 the EAT (HHJ Serota QC presiding) indicated that in considering an alleged breach of the s.4A duty an ET must identify:
	(a)	the PCP applied by or on behalf of the employer
	…
	(c)	the identity of non-disabled comparators (where appropriate) and
	(d)	the nature and extent of the substantial disadvantage suffered by the Claimant.

19.	Ms Nolan does not challenge the ET’s finding that here the relevant PCP was the prohibition under the HR Framework on staff at risk of redundancy applying for posts more than one grade above their current banding, thereby precluding the Claimant from applying for the band 6 Patient and Staff Safety role.  However, she submits that the ET fell into error, first in failing to identify a non-disabled comparator and secondly in failing to make a finding as to how the PCP put the Claimant at a substantial disadvantage.

20.	Taking the comparator point first, we emphasise the words ‘where appropriate’ in the Rowan formulation of the appropriate test.  We agree with Mr Mugliston, by reference to the observations of Cox J in Fareham College v Walters [2009] IRLR 991, particularly paras. 56, 58, that a like for like comparison is not appropriate on the facts of this case.  Secondly, the substantial disadvantage suffered by this Claimant lay in the fact that, as a direct result of the onset of her visual impairment, she was redeployed from a band 6 to a band 4 post in 2009.  That is why she was precluded from applying for the band 6 Staff and Patient Safety role at stage 1 under the HR Framework.  We do not accept that that redeployment was ‘too remote’ as the ET thought in relation to discriminatory dismissal (para. 40) when considering the duty to make adjustments.  Had she not become disabled she would have remained in her original band 6 post and, had that been at risk, would have been eligible to compete with the successful candidate for the Safety role.  Instead, she was disadvantaged by not being able to apply for that alternative role.  As to whether allowing her to compete for that post was a reasonable adjustment, the ET took into account the Respondent’s desire to treat all staff equally under the HR Framework, but that overlooks the Respondent’s own acknowledgement that sometimes disabled people must be treated more favourably than those who are not disabled, the principle established in Archibald v Fife Council [2004] IRLR 651 (HL).  In all the circumstances it was not unreasonable to make an exception under the HR Framework to allow for the Claimant’s disability and its consequences.

21.	Accordingly, we uphold the ET’s finding of a failure to make a reasonable adjustment in this respect.  In doing so we have not overlooked Ms Nolan’s complaint that the ET made no finding that the Claimant would have been successful in applying for the Safety role.  We have earlier noted the ET’s finding at para. 20 that although the matching panel informally formed the view that the Claimant did not meet the essential criteria for the role, no explanation was given for that finding.  Thus no definite answer to the question, would the Claimant have been successful, was possible on the state of the evidence before the ET.  It is now well established in EAT authority (see the cases listed in Harvey, vol 2, L402) that it is enough that there was a real prospect, as I put it in Romec v Rudham [2007] ALL ER (D) 2010, of the adjustment removing the disadvantage suffered by the Claimant as a result of her disability.  That was effectively the ET’s finding at para. 34.  Further, it seems to us that the loss of a chance of successfully applying for the Safety post may properly be reflected in the assessment of loss arising from the failure to make the relevant adjustment at the remedy stage in the same way that the loss of a chance falls to be assessed under the Polkey principle when assessing the compensatory award for unfair dismissal (see below).

Discriminatory dismissal
22.	Mr Mugliston makes a short and telling point in relation to the ET’s reasons for dismissing this part of the claim at para. 40.  The ET there appear to be addressing again (see para. 37) the claim under s.15 EqA whereas, having found a breach of the duty under s.20 the ET was bound to go on to conclude that the dismissal was inextricably linked with the failure to make that adjustment and was therefore an act of discrimination contrary to s.39(2)(c).

23.	We accept that submission.  Ms Nolan points to the ET’s finding that the reason (or, we would add, principal reason) for dismissal for the purposes of the unfair dismissal claim was redundancy.  It follows, she submits, that the ET was entitled to conclude that the dismissal was not discriminatory.  However, the reason or principal reason for dismissal under s.98 ERA does not preclude there being a discriminatory element amounting to a significant factor in the dismissal.  Here, the failure to allow the Claimant to apply for the Safety post meant that her dismissal by reason of redundancy was inevitable.  That is sufficient to amount to a discriminatory dismissal under s.20(3) read with s.39(2)(c) EqA.

24.	It follows that we shall allow the Claimant’s cross-appeal.  

Unfair dismissal
25.	It follows from what has gone before that we reject the Respondent’s appeal against the finding of unfair dismissal.  We accept the ET’s findings as to unfairness of the dismissal by reason of redundancy at para. 39.  In addition, as we have concluded, the failure to make an adjustment by permitting the Claimant to apply for the Safety post, itself leading to a discriminatory dismissal, added to its unfairness.  We repeat, the loss of a chance of obtaining that post is a factor to be considered in the calculation of the compensatory award at the remedy stage.

Disposal
26.	The Respondent’s appeal is dismissed. 

27.	The Claimant’s cross-appeal is allowed.  The matter will now return to the same ET for the assessment of compensation for disability discrimination, including discriminatory dismissal as explained above and unfair dismissal, ensuring that there is no double-counting in the two assessment exercises.