Appeal No. UKEAT/1432/00

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

AT THE TRIBUNAL
On 17 May 2001

Before

THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)

DR A H BRIDGE

MR R P THOMSON

Ms VERONICA COSGROVE						APPELLANT

MESSRS CAESAR & HOWIE						RESPONDENTS

Transcript of Proceedings
SEAL DATE 6.6.01
JUDGMENT

	APPEARANCES

For the Appellant	Miss C Carr, Solicitor
Of-
Messrs Brechin Tindal Oatts
Solicitors
48 St Vincent Street
GLASGOW   G2 5HS

	
For the Respondents	Mr G Millar, Solicitor
Of-
Messrs Brodies WS
Solicitors
15 Atholl Crescent
EDINBURGH   EH3 8HA

MR JUSTICE LINDSAY (PRESIDENT):
1.	We have before us the appeal of Ms Veronica Cosgrove in the matter Cosgrove v Caesar & Howie.  Today Miss C Carr appears for Ms Cosgrove, as she did at the Tribunal below, and Mr G Millar appears for the respondent firm of solicitors, Caesar & Howie.

2.	On 7 June 1999 Ms Cosgrove presented an IT1 for disability discrimination and unfair dismissal.  She said that she had been employed from May 1973 to March 1999.  She had been legal secretary for the respondent firm.  From 2 December 1997 she had been absent from work at the solicitors for a year due to depression.  On 11 December 1998 she was given 12 weeks notice of dismissal.  She claimed that she had been less favourably treated by reason of her disability, which she said was depression.  She claimed she had been dismissed without the firm having taken medical advice as to her prognosis.

3.	On 5 July 1999 the respondent firm by its IT3 denied much of what Ms Cosgrove had relied upon.  Matters, they said, had been fully investigated by their managing partner, Mr Borrowman, and also, inter alia,:-

“The Respondents were not advised by the Applicant that her memory and ability to concentrate, learn or understand were affected, despite Mr Borrowman’s invitation to Ms Cosgrove to make any representations she wished.  Further, they were not advised by her medical advisors that this was the case.”

Between 23 and 26 November 1999 and on 14 February and 17 March 2000 there was a hearing at the Employment Tribunal in Edinburgh.  After an unusually long expanse of time, on 12 September 2000 the Employment Tribunal, under the chairmanship of Mr M Sischy SSC, sent its decision to the parties.  It was:-

“The unanimous decision of the Tribunal was that:-

“1.	The applicant was not discriminated against by the respondents in contravention of the Disability Discrimination Act 1995;

	2.	The applicant was not unfairly dismissed by the respondents; and,

	3.	Accordingly the whole application is dismissed.”

4.	We believe we have identified some errors of law, some more significant than others.  The first is this.  Section 5 of the 1995 Act raises the question of whether, for a reason which relates to the person’s disability, he has been treated by his employer less favourably than the employer would treat others to whom that reason would not apply. The Employment Tribunal held that by the time of her Tribunal Ms Cosgrove suffered from a disability in terms of the Act – see page 6 of the decision itself, lines 7 to 10.  The Tribunal thereafter, as it seems, proceeds on the basis, which the respondent firm had denied, that Ms Cosgrove was disabled for the purposes of the Act.  But it seems to us that the appropriate time at which to adjudicate whether a person is disabled or not is the date of the unfavourable treatment alleged to have been dealt to him or her.  This may not be a significant error because there is no cross-appeal here and the general drift of the Employment Tribunal’s decision is that Ms Cosgrove was, at any time material to a judgment in the case, disabled.  However it might just be that the Tribunal would have considered other than they did had they looked at the correct point of time at which disability needed to be adjudged.  We say no more on that possible error of law.  Less significant still is the error that in their citation of section 1 of the Act the Tribunal leaves out the important words “long-term” before “adverse affect”.  That, however, is likely to be no more than a typing or transcription error.

5.	However, there are, as it seems to us more significant errors.  The only mention by the Employment Tribunal finding for or against “less favourable treatment” within or without section 5(1)(a) is a brief mention as follows:-

“They [the respondent firm] were unaware that the applicant’s unfortunate illness brought her within the ambit of the Disability Act and there was no evidence to suggest that they would have treated anybody else differently who had been absent from work for over a year.”

It is plain from that that, despite the Employment Tribunal’s reference to Clark v TDG Ltd T/a Novacold [1999] IRLR 318 C.A., they took the required comparison to be between the treatment of the disabled person and the treatment of “anybody else … who had been absent from work for over a year.”  We do not accept that that was the correct comparison.  As we understand Clark v Novacold, the correct approach is this: (1) What was the reason for Ms Cosgrove being treated as she was, namely, for her being dismissed?  The answer at first blush is merely, as the Tribunal put it,:-

“The Tribunal had little hesitation in reaching the conclusion that the applicant was dismissed because as at the time of dismissal the respondents had formed the opinion that she was no longer capable of returning to work and performing her duties.”

However, on a fuller reading of the findings and the evidence and taking it all together, the reason was that she had been absent from work for a long period on medical grounds and was unable to predict, when, if ever, the medical prognosis would be such as to enable her to return.  We will call that “the Material Reason”.  The next question Novacold requires to be answered is this: (2) Was the Material Reason one which related to her disability?  Answer yes.  The medical grounds amounted to a disability and it was those grounds and that disability which had kept her from work and which denied a prognosis which contemplated a return within a foreseeable period.  Then, (3) Would the employer have dismissed some other to whom that Material Reason would not apply?  Answer no; there would have been no reason to do so unless some other grounds for dismissal had applied to that other.  It was not, for example, as if there were shown to be a true redundancy situation or “downsizing” generally.  If that approach is a correct interpretation of Clark v Novacold then the Employment Tribunal erred in law in looking only to whether some other person absent from a work for a year would equally have been dismissed.  Indeed, that comparison, would on its face, include a comparision being made between Ms Cosgrove on the one hand and a person who for no good reason at all had been absent for over a year, which would make the comparison unfair to Ms Cosgrove, who plainly did have reasons to being absent.  The failure to make the correct Novacold comparison is in our judgment a material error of law.  

6.	At several points the Employment Tribunal considered whether the treatment – the dismissal – was justified, a question which arises if there was less favourable treatment within section 5(1)(a) and (here) section 4(2)(d).  They referred themselves also to section 5(5) of the Act which provides:-“if, in a case falling within subsection (1),the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty.”

It is far from clear whether the Employment Tribunal was of the view that the employer was under a section 6 duty but on balance that does seem to have been the case.  At several points the Tribunal states that neither Ms Cosgrove nor her general practitioner could think of anything that would have represented a satisfactory adjustment being, for this purpose, one which would have been reasonable for the employer to take in order to prevent the arrangements it made placing Ms Cosgrove at a substantial disadvantage in comparison with a person who was not disabled.  Thus the Tribunal said:-

“After so long an absence and without a prognosis being available the Tribunal were of the opinion that dismissing the applicant was justified.  This is against the background that neither the applicant nor her medical witness were able to state what adjustments the respondents could have made to improve her situation and to facilitate an eventual return.”

	A little later the Tribunal said:-

“However, in the present case the Tribunal were of the opinion that the dismissal was justified given the length of absence, the complete absence of any prognosis as to when (if ever) the applicant might return and what appears to have been accepted by both the applicant and her medical adviser that there were no reasonable adjustments that could have been made to facilitate a return to work.”

	Finally, the Tribunal said:-

“It is difficult to understand how the respondents failed in their section 6 duty when both the applicant and her doctor indicated in evidence before the Tribunal that there was nothing the respondents could have done to have facilitated a return.”

But the duty to make adjustments under section 6 is upon the employer.  The employer, consistently with its view that there was no disability, had said in its particulars:-

“The respondents did not consider any steps or adjustments could be made as in their view the applicant was not suffering from a disability.”

	And a little later in the same particulars:-

“The respondents did not consider any further adjustments as in their view the applicant was not suffering from a disability.”

	That was confirmed in evidence.  The Tribunal held:-

“Mr Borrowman (a partner in the firm) confirmed in evidence that he was aware of the terms of the Act as Staff partner although he did not consider that the Act applied in connection with the applicant’s condition.  He therefore did not consider what steps he might be able to take to assist her.”

The Tribunal jumped from the evidence given at the Employment Tribunal that Ms Cosgrove’s general practitioner and she herself could not think of any useful adjustment to the conclusion that no useful adjustment could be made.  Thus the Tribunal held:-

“The difficulty for the applicant was that according to the evidence if the respondents were aware of the applicant’s disability there were no reasonable adjustments they could have made to facilitate a return to work.”

But whether the employer could, had it considered section 6 and the duty thereby imposed upon it, have thought up any useful adjustment was not a question as to which, as far as one can tell, evidence on the employer’s part was adduced.  The employer, as Mr Borrowman’s evidence made clear, never turned its mind to adjustments or their possibilities.

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.  Indeed, in the course of argument before us, Mr Millar accepted that the doctor and the applicant were not the most appropriate persons to be asked as to what adjustments could be made.  The Tribunal said:-

“Perhaps most importantly both the applicant and Dr Brook stated in evidence that the applicant’s condition could not have responded to any adjustments to the workplace.  She could not think of anything that the respondents could have done which would have improved the situation.”

That relates only to Ms Cosgrove’s ability to discern some adjustment and to the possibility of adjustment to the workplace (and not, be it noted, at the workplace).  But if the employer had turned its mind to adjustments, might a transfer to another office of the firm have been a possibility?  Would it have so reduced the stress which she had suffered at, and could well have suffered on return to, the Bathgate office and upon her working with the partners and staff at that office that a return to work similar to the work she had undertaken earlier or at least a return to some work would become possible? - see section 6(3)(c) or (e).  She was under a degree of stress by reason of her having to look after her mother, who was found to have Alzheimer’s disease; would an alteration of her working hours – see section 6(3)(d) – to allow her the better to cope with her mother’s needs have so reduced Ms Cosgrove’s symptoms that a return to her erstwhile work or to some work would have become possible?  Would a very gradual return, building slowly from part-time working in gentle duties to full-time working on her erstwhile duties, have materially facilitated a return?  The heading “altering the person’s working hours” in para. 4.20 and the passage at para. 6.21 in the Disability Discrimination Code of Practice seem to suggest that the working of shorter hours is a form of alteration of working hours that needs to be considered within the range of appropriate possible adjustments.  We do not suggest that there would necessarily have been a positive answer to such questions but there can be no assurance at all that there would not have been since, unfortunately, such questions were not asked at or around the time of dismissal, or indeed, as it would seem, even at the Tribunal.  It cannot, it seems to us, be as decisive as the Tribunal took it to be on the issue of whether any reasonable adjustments were available that might have prevented Ms Cosgrove’s inability to work by reason of her medical condition that neither she, a mentally disabled person could, at the Tribunal itself, suggest any, nor that her doctor, who, as far as we can tell, had no such questions posed to him and could not, presumably, in any event be expected to know what office possibilities the employer could offer, had, at the Tribunal, not been able to suggest any either.  

8.	In the circumstances there was, in our judgment, a second material error of law, namely in regarding Ms Cosgrove’s views and those of her general practitioner as decisive on the issue of adjustments, where the employer himself had given no thought to the matter whatsoever. 

9.	In the circumstances we allow the appeal and set aside the decision.  We are not at all confident of what the decision would have been had only the Tribunal adopted the correct approach as to a comparator and if only the employer had adequately turned its mind to the possibilities of adjustment at or around the time of dismissal.  That lack of confidence could, this next consideration apart, have driven us to remit the matter for fresh hearing on the question of liability.  However, neither side asked us to remit liability.  Moreover given the respondent’s own evidence by its Mr Borrowman that plainly showed that no attention at all had been given to the possibility of adjustments, and given that even if the clock was set back, that would necessarily remain the evidence that would have to be accepted by any Tribunal, in these unusual circumstances we see the force of the matter not being remitted as to liability.  We thus not only allow the appeal but ourselves determine that Ms Cosgrove was discriminated against in contravention of the Disability Discrimination Act.  We do not disturb the decision on unfair dismissal.  The matter is remitted to be heard solely as to remedy in relation to disability discrimination.  We see no reason why it should not be remitted to the Tribunal that earlier heard it.