Reasonable Adjustments

February 3rd, 2012 by Richard Leiper

In Roberts v North West Ambulance Service (UKEAT/0085/11) the EAT considered the language of s 4A of the DDA and ruled that it is not necessary for a provision, criterion or practice (PCP) to have been applied to the claimant in order that a duty to make reasonable adjustments may arise: the questions are simply (1) whether the employer applied a PCP and, if so, (2) whether that PCP placed the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled. It is not a requirement that the substantial disadvantage arises from the application of the PCP to the disabled person.

The facts of the case help to explain this. The claimant was an emergency medical dispatcher. The dispatchers worked various, overlapping shift patterns and as a result the employer asked them to hot-desk. The claimant suffered from social anxiety disorder and after a period of work indicated that his condition was exacerbated by his sitting in the middle of the room. He therefore asked to be placed by the wall and next to a window. His employer agreed and the arrangement worked well, save that on three separate occasions the claimant arrived at work and had to wait whilst others were moved from his chosen desk. After the third occasion he resigned, claiming a breach of the s 4A duty and constructive dismissal.

The Employment Tribunal decided that “the alleged policy of hot-desking” was not applied to the claimant, since he was not required to sit in any place other than his preferred seat. It added that, in any event, “the respondent acted reasonably in the steps it took to accommodate the claimant’s wish to sit in his preferred location”.

The EAT identified two errors of law.

First, the ET required that the PCP be applied to the claimant and that this application led to the substantial disadvantage. The EAT said that this was an unnecessary requirement: all that the statute requires is that a PCP be applied by the employer and that that PCP should place the employee at a substantial disadvantage. Hot-desking was clearly a PCP. It was not applied to the claimant, but the fact that the PCP existed could at least arguably be said to be the cause of a substantial disadvantage to the claimant: “he continued to be affected by ‘hot desking’ because other people who were required to hot desk were still sitting in and intending to use his preferred seat when he arrived for work” (¶ 33).

Secondly, the ET was wrong to ask whether the respondent had acted reasonably: the effect of s 18B(1) is that if it was a reasonable adjustment to ensure that the seat was free for the claimant, then the respondent was bound to make that adjustment, not merely to take reasonable steps to do so.

The EAT remitted the case to the same ET.

Another appeal on reasonable adjustments, Burke v The College of Law [2012] EWCA Civ 27, was rejected on the basis that the E T had made adequate findings of fact. This meant that the Court of Appeal did not address a rather more interesting question. Mr Burke suffers from MS. He wanted to sit the LPC exams and asked for additional time to sit the various papers. The College of Law did allow him more time, though he contended not enough. The ET found that the requirement that the exams be sat under time pressure was itself a competence which was tested, namely the ability to work under a time constraint. Paul Nicholls and Christopher Knight acted for Mr Burke (instructed through the Bar Pro Bono Unit). Permission to appeal had been granted to consider whether there was a distinction to be drawn between the competence – the ability to work under time pressure – and the mode of assessment. Mr Burke’s case was that, even on the footing that the ability to work under time pressure was a competence, nonetheless the respondents were under an obligation to make reasonable adjustments to the requirement that the exam be completed in three hours. This was accepted at the permission stage to raise an issue of general application. However, the point remains undecided.


Legal aid in employment cases and Lists of issues

October 31st, 2011 by Richard Leiper

The EAT has made some interesting observations about the usefulness of legal aid in employment cases: Price v Surrey County Council (UKEAT/0450/10, 27 October 2011).

In an unusual foray into the Appeal Tribunal, the panel was presided over by a Lord Justice of Appeal, Carnwath LJ. It said (paragraph 59),

“Provision of basic legal help to unrepresented litigants is important in the interests of the efficiency and economy of the justice system for the public, as much for its accessibility to the individual parties.”

Perhaps slightly hopefully, the EAT expressed the view that, had lawyers been involved at an early stage, they would not have allowed the case to develop as it did, with a number of peripheral allegations, exaggerations and an unsustainable allegation of corruption. Furthermore, the emphasis on a long list of individual ‘detriments’ distracted attention from the issues of substance.

This focus on the alleged detriments also led to observations on the drawing up of a list of issues. First, the EAT noted, an Employment Judge should not simply accept a list of issues presented to the Tribunal, even if agreed. The Judge has a duty to ensure that the case is clearly and efficiently presented. The Tribunal hearing the case is not required to follow the list of issues slavishly (paragraph 23).

The failing of the list in this case was that it had focused too much on the detailed factual allegations said to support the claimant’s case, rather than on the central issues of dispute between the parties (paragraph 24).

The EAT went so far as to append the list of issues as an example of What Not To Do.


NHS Manchester v Fecitt [2011] EWCA Civ 1190 (25 October 2011)

October 26th, 2011 by Richard Leiper


At a time in which the coalition government is focussing hard on employment rights and, in particular, the right of unfair dismissal, the Court of Appeal has issued an important judgment on the scope of those rights. It confirms that in whistleblowing cases, the burden of proof for dismissal from employment differs from that for claims of any other detriment.

Burden of proof

The EAT had considered that it was bound to follow the approach in Igen v Wong [2005] ICR 931. The Court of Appeal did not agreed that Igen was binding but it accepted that the same approach is to be applied (paragraph 43):

“… the reasoning which has informed the EU analysis is that unlawful discriminatory considerations should not be tolerated and ought not to have any influence on an employer’s decisions.  In my judgment, that principle is equally applicable where the objective is to protect whistleblowers, particularly given the public interest in ensuring that they are not discouraged from coming forward to highlight potential wrongdoing.”

Thus, notwithstanding that there was not the underpinning legislative context of the European directive, that approach should inform the reasoning in relation to the entirely domestic law on whistleblowing.

That the approach is similar is perhaps not so surprising, given that:

(a)                 The burden is expressly placed upon the employer to show the ground upon which an act is done (ERA s 48(2));

(b)                 In relation to the discrimination provisions prior to the implementation of the (now) Equal Treatment Directive (as expounded in Nagarajan), the question was whether the proscribed ground had a material influence on the decision, material being more than trivial. In Igen itself, the Court of Appeal found it “hard to believe that the principle of equal treatment would be breached by the merely trivial”, suggesting that this was consistent with the Directive’s language of “no discrimination whatsoever”.

The combination of these features means that it is for the employer to demonstrate that the grounds upon which it acted were not materially influenced by the protected disclosure.

On the facts, the Tribunal had decided that the employer’s act in redeploying the claimants was the only feasible way of dealing with a dysfunctional situation. This was not on the ground of the protected disclosure, albeit that the protected disclosure may have been the root cause of the dysfunction.

Elias LJ’s judgment referred to concepts familiar in the discrimination context, in particular the idea of subconscious reasons and drawing inferences from a false, or less than full, explanation by the employer.

He also noted at paragraph 51 that:

“The detrimental treatment of an innocent whistleblower necessarily provides a strong prima facie case that the action has been taken because of the protected disclosure and it cries out for an explanation from the employer.”

This appears different from the discrimination field, in which it has repeatedly been emphasised that a difference in treatment and a difference in sex is not sufficient to satisfy stage 1 of the Igen test: see for example Madarassy v Nomura International plc [2007] IRLR 246, paragraph 56.

Where the individual is an employee and his complaint is about dismissal, that complaint is removed from ERA s 47B (by sub-section (2)) and into s 103A. There, the question is whether the protected disclosure was the reason or principal reason for the dismissal. The Court of Appeal recognised that this meant that there was a different approach to dismissal cases than to cases involving another detriment. This creates an anomaly, but one which was intended by the legislature (see paragraph 44).

One perhaps strange implication of the Court of Appeal’s ruling is that where a worker is removed from work, this will be a detriment and the respondent will need to show that the protected disclosure had no material influence upon the decision: the worker enjoys the more generous approach under s 47B than the dismissed employee does under s 103A.

Vicarious liability

The other aspect of the case was the ruling that an employer will not be vicariously liable for the acts of its employees where those acts are themselves not wrongful. This was applying Majrowski v Guy’s and St Thomas’ NHS Employer [2007] 1 AC 224 and overruling the EAT’s decision in Cumbria County Council v Carlisle-Morgan [2007] IRLR 314, which was based on a misreading of Majrowski.

Thus, in the context of whistleblowing, an employer is not liable for the acts of its employees even if they amount to victimisation on the ground of making a protected disclosure. This is because (in contrast with the discrimination provisions: see the Equality Act 2010 s 109(1)) the legislation does not render such acts unlawful; it is only the acts of the employer done on that ground which are unlawful. Of course, an employer will act through its agents, generally managers, and those acts may render it liable; but it is not vicariously liable for the lawful acts of its employees.

Endnote: reasons

For parties seeking to uphold the reasons of an employment tribunal, the Court of Appeal made observations about the nature of the reasons required. Elias LJ said (at paragraph 62):

“There is no need for a blow by blow rehearsal of the evidence, and indeed such an approach often obfuscates the issues rather than assisting the Tribunal to reach its conclusion. In addition, a Tribunal is entitled – and indeed should be encouraged – to explain its legal conclusions crisply and succinctly as this Tribunal did.”

Nevertheless, it considered that the Tribunal in that case could have said a little more on certain issues of the case, both to assist the Court of Appeal’s understanding of the tribunal’s reasoning, but also in order to demonstrate that the Tribunal had fully understood the claimants’ sense of grievance. The last point is perhaps a salutary reminder to Employment Judges that where they decide that no legal wrong has been done to an individual, there may still be a justified sense of grievance which warrants recognition.