Appeal No. UKEAT/0293/08/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 December 2008
Judgment handed down on 5 February 2009

Before
HIS HONOUR JUDGE PETER CLARK
MS G MILLS CBE
MR B M WARMAN

THE CHILD SUPPORT AGENCY (DUDLEY)	APPELLANT

MRS R TRUMAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MARK WILLIAMS
(of Counsel)
Instructed by:
Messrs MLM Cartwright Solicitors
Pendragon House
Fitzalan Court
Newport Road
Cardiff CF24 OBA	
For the Respondent	MR PETER STARCEVIC
(of Counsel)
Instructed by:
Messrs Lyons Davidson Solicitors
Jago House
692 Warwick Road
Solihull
West Midlands B91 3DX

SUMMARY
DISABILITY DISCRIMINATION:  Disability related discrimination / Compensation

Whether the Novacold comparator in cases of disability-related discrimination must be replaced in employment cases by the Malcolm comparator.  Answer, yes.  Application to facts of this pre-Malcolm case.  Effect on compensation.  Appeal allowed; case remitted to same Employment Tribunal for further consideration.

HIS HONOUR JUDGE PETER CLARK
1.	This is an appeal by the Child Support Agency (Dudley) Respondent before the Birmingham Employment Tribunal, against parts of the Judgment of a Tribunal chaired by Employment Judge Heal, upholding some of the claims brought by the Claimant, Mrs Truman, under the Disability Discrimination Act 1995, as amended (DDA).  By that judgment promulgated with reasons on 21 January 2008 following a hearing held on 10 – 13 December 2007, the Tribunal awarded the Claimant compensation for injury to feelings in the sum of £7,000.  It follows that the Tribunal’s judgment preceded the House of Lords’ decision in London Borough of Lewisham v Malcolm [2008] UKHL 43; [2008] 3 WLR 194.

Background
2.	The Claimant commenced her service with what is now the Department for Work and Pensions on 19 June 1972.  Since August 1994 she has worked for the Respondent Agency as a Complaints Officer.  She has been on special leave with full pay since 21 June 2007.

3.	Since 1996 she has suffered from low back pain.  In 1995 she had 3 prolapsed discs removed.  After initial improvement her condition worsened so that she was mainly confined to bed for four months between June and October 2005.  It is common ground that she is disabled within the meaning of s.1 DDA.

4.	In 2005 management agreed that the Claimant could work 4½ days per week from home, coming into the office for one half day each week.  By that arrangement she was able to continue working, but she needed aids and equipment at home to enable her to do so.  In October 2005 she received a visit from Mr Mason of Tallium, to whom the Respondent delegated the function of risk assessment.  She asked Mr Mason for a height adjustable desk for her use at home; he recommended instead a specialist chair, although before the Employment Tribunal the Respondent accepted that it would have been a reasonable adjustment to supply a height adjustable desk.

5.	Without a specialist desk the Claimant worked on top of her cooker, the highest surface in her house.  She worked hunched at the cooker;  when she could sit she worked at a table.  All of these options were unsatisfactory.

6.	The specialist chair arrived in January 2006, but not a desk to go with it.  Someone had completed the wrong order form.

7.	On 24 February 2006 she waited in all day for the desk to arrive, in vain.  No delivery had been arranged for that day due to another error.   She was very angry and telephoned the Respondent’s Accommodation Department and spoke to an employee there, Angelina Mathers.  The Claimant shouted at Ms Mathers, using the word ‘crap’, but not the foul language alleged by Ms Mathers, so the Employment Tribunal found.

8.	On 13 March 2006 a desk was delivered to the Claimant’s home but it was not height adjustable.  Again she telephoned Accommodation and spoke to Ms Mathers.  She was very angry and raised her voice but did not use foul language.

9.	In April 2006 Atos, the Occupational Health specialists, recommended an electric powered height adjustable desk;  again, difficulties were experienced by the Claimant in taking delivery of such a desk and it did not arrive until 1 November 2006.  By then the Respondent was planning to withdraw the facility of working from home.

10.	Meanwhile, on 5 April 2006, Ms Mathers made a formal complaint of bullying and harassment against the Claimant arising out of her telephone calls on 24 February and 13 March.  Initially that complaint was not upheld but Ms Mathers appealed that decision successfully to Brenda Green, Senior New Client Manager, who requested the Claimant to attend a mediation meeting with Ms Mathers so that she might apologise for her actions.  Failure to act on this request, she was warned, may lead to disciplinary action being taken against her.  In the event no meeting was ever set up, the Claimant gave no apology and no disciplinary action was taken against her.

11.	Medical advice received by the Respondent clearly indicated that the Claimant was not fit to work in the office five days a week, but in a restructuring plan known as the “New World” it was no longer deemed acceptable for the Claimant to work from home.

12.	One possible way out of this impasse, no thought being given to adjustments which would enable the Claimant to enter the New World, was medical retirement.  The Claimant completed the necessary application forms but Dr Adeoudu, to whom she was referred, concluded (contrary to all previous medical opinions) that she was capable of working five days a week in the office and her application for ill-health retirement was refused.

13.	Home working throughout the organization ended in January 2007.  The Claimant was informed that she could not continue home-working with effect from 25 June 2007.  Since then she has been on paid leave.

The Disability Discrimination Act
14.	The Employment Tribunal reminded themselves of the provisions of Sections 3A, 4A and s17A(1C) (the reverse burden of proof) and referred to Igen v Wong [2005] IRLR 258 and Madarassy v Nomura International Plc [2007] IRLR 246 on the application of the reverse burden of proof, together with the Court of Appeal decisions in O’Hanlon v HM Commissioners for Revenue and Customs [2007] IRLR 404 and Taylor v OCS Group Limited [2006] IRLR 613 (Reasons paragraphs 45 – 51).

15.	For our part we gratefully adopt the analysis by Sedley LJ of the three kinds of discrimination to be found in s3A in O’Hanlon, paragraph 93:

“(a)	direct discrimination “on the grounds of” a person’s disability, which is not open to justification: section 3A (5) and (4)
  (b)	disability‑related discrimination, which is open to justification:  s.3A(1) and (3)
  (c)	failure to make reasonable adjustments: sections 4A, 3A(2), 18B.”

London Borough of Lewisham v Malcolm
16.	Since this is certainly the first time that the members of this Employment Appeal Tribunal division have been required to consider the law as it has now been revealed by the House of Lords in Malcolm and in view of a spirited submission by Mr Starcevic on behalf of the Claimant that the ruling in Malcolm has no application to disability discrimination in the employment field (Malcolm was concerned with Part III of the Act prior to its amendment), we must attempt our own analysis of its significance in the present case.

17.	Mr Malcolm, a schizophrenic, held a tenancy of Council housing let by Lewisham.  In breach of his tenancy agreement he sub-let the premises.  In answer to a claim for possession by Lewisham based on his breach of the agreement he invoked Part III of the DDA.  He contended that he was disabled within the meaning of the Act and that in bringing possession proceedings against him Lewisham had unlawfully discriminated against him contrary to s22(3)(c).  Lewisham responded that he was not disabled, but if he was, the alleged discriminatory treatment was not “for a reason which related to the disabled person’s disability” (s.24(1)(a)).

18.	A number of issues arose in the House; was Mr Malcolm disabled?  To what treatment was he subjected?  What was the reason for that treatment?  Did the reason relate to his disability?  Is it relevant whether Lewisham knew of his disability?  We take those questions from the speech of Lord Bingham (paragraphs 6 - 11, and 17 ‑ 18);  however, the principal question for present purposes is the fifth raised by Lord Bingham (paragraphs 12 – 16), who is the relevant comparator in a claim of ‘disability‑related’ discrimination?

19.	By a majority of 4 – 1 (Baroness Hale dissenting) the Committee held that for the purposes of s24(1)(a), which provided:

“For the purposes of section 22, a person (A) discriminates against a disabled person if –
(a)	for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply:”

the relevant comparator, in Malcolm’s case, was a person without a mental disability who had sub-let a Lewisham flat and gone to live elsewhere.  On that analysis Lewisham would equally have taken possession proceedings against the non-disabled tenant and thus, on that basis alone, Mr Malcolm had not been subjected to disability-related discrimination.  His comparator would have received precisely the same treatment

20.	In arriving at that analysis the majority paid careful attention to the analysis by Mummery LJ in Clark v Novacold [1999] ICR 951.  Until Malcolm the comparator identified in Novacold held sway.  On the facts of that case the Court of Appeal held that the appropriate comparator in a claim of disability-related discrimination (then brought under s5(1)(a) DDA prior to amendment; now s3A(1) was a person to whom the reason for the treatment did not or would not apply.  Thus the reason for Mr Clark’s dismissal, that he could not perform the main functions of his job, did not apply to a non-disabled employee who could perform the main functions of his job and so he had suffered disability-related discrimination.  He had been less favourably treated than his able-bodied comparator who would not have been dismissed.

21.	Mr Starcevic submits that Malcolm may be distinguished and the “wider” comparator identified in Novacold continues to apply in the employment context.  In support of that proposition he advances the following argument:

(1)	Malcolm was concerned with housing law and considered a different part of the DDA; whilst the words of s24(1)(a) are similar to s3A(1) the defence of justification differs under those respective provisions.

(2)	Whilst Lord Bingham, in Malcolm (paragraph 15), found it hard to accept that Novacold was rightly decided he was in any event satisfied that a different principle must be applied in the housing context.  Lord Neuberger, it is submitted, left open the possibility that equivalent provisions in other parts of the Act may be treated differently by concluding that the narrower construction is to be preferred “at least in relation to section 24(1)(a)” (paragraph 139).  That said, Mr Starcevic properly accepted that Lord Scott held unequivocally that Novacold was wrongly decided and, whilst Baroness Hale disagreed and held that Novacold was correctly decided, she also accepted that the words in s.24(1)(a) and what is now s3A(1) must mean the same in both contexts.

(3)	In Malcolm the DDA was used as a defence to an otherwise lawful claim for possession and the Act does not create a special disability defence to the lawful claims of others;  hence the decision of the Court of Appeal (to which Mummery LJ was a party) in S v Floyd [2008] EWCA Civ 201, approved by the majority of the House of Lords in Malcolm.  Reliance is placed on the speeches of Lord Scott (paragraph 37) and Lord Brown (paragraphs 111-113).  Baroness Hale was not impressed by this point of distinction in Floyd (paragraphs 99-101).

(4)	In Malcolm the narrower construction was preferred to the wider construction in Novacold due to the extraordinary impact which the latter could have on an otherwise proper possession claim (Lord Neuberger, paragraphs 142-147).  It is submitted that Lord Neuberger left open the wider construction if there was a good reason (paragraph 151).  Reliance is also placed on paragraphs 156 and 158.

22.	In our judgment the narrower comparator favoured by the majority in Malcolm applies equally in the employment context.  The wider comparator used in Novacold should no longer apply (unless and until the legislation is further amended by Parliament).  Our reasons for reaching that conclusion, by reference to Mr Starcevic’s numbered submissions which we have set out above, is as follows:

(1)	We have earlier recited s24(1)(a) DDA, as considered by the House of Lords in Malcolm.  Section 3A(1)(a) defines disability-related discrimination in the employment context as follows:
“for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply.”

It will be immediately apparent that the wording of s24(1)(a) is identical to that of s3A(1)(a) following amendment and s5(1)(a) prior to amendment.  It would therefore seem surprising if the comparator in one provision was different from that in the other.

Further, we do not accept that there is any distinction between the justification defence under s24(1)(b) and that under s3A(1)(b) (formerly s5(1)(b).  Section 24(1) (b) reads ‘he cannot show that the treatment in question is justified’;  s3A(1)(b) is in identical terms, as was s5(1)(b).  In any event, the nature of the defence of justification cannot, in our view, impact on the question as to who is the appropriate comparator for the purposes of prima facie unlawful discrimination (leaving aside the burden of proof) subject to the defence of justification.

(2)	Close examination of each of the speeches in Malcolm leads us to conclude, contrary to Mr Starcevic’s submission, that all five members of the Committee were of the opinion that no distinction fell to be drawn between the comparator identified in s24(1)(a) and s3A(1)(a) (formerly s5(1)(a).  Lord Bingham considered the ‘Novacold comparator’ and rejected it in the context of s24(1)(a).  He found it hard to accept that Novacold was rightly decided (paragraph 15).  As Mr Starcevic accepts, Lord Scott held, unequivocally, that Novacold was wrongly decided (paragraph 34) and Baroness Hale, whilst alone approving the Novacold comparator, contrary to the opinions of the majority, said at paragraph 80 
“I do not think that it is possible … to distinguish it [Novacold] on the ground that the same words mean something different in the context of employment.  They must mean the same throughout, however inconvenient the result may now appear to be.”  

Lord Brown appears to have agreed with Lord Scott that Novacold was wrongly decided on the comparator question (paragraphs 112-113).  Lord Neuberger expressed doubts as to the narrower construction favoured by Lords Bingham, Scott and Brown before adopting it.  Of particular interest is his observation at paragraph 158 that whilst it would be very surprising if s24(1)(a) had a different meaning from the identically worded s5(1)(a) (now s3A(1)(a)) it would not be an impossible conclusion.  Stopping there, it might appear that at least one member of the Committee was leaving open the proposition now advanced by Mr Starcevic; however the door was firmly closed later in that paragraph where Lord Neuberger recorded that no party in Malcolm (the EHRC intervened, represented by Counsel led by Rabinder Singh QC) had argued for a different comparator in the housing context to that appropriate in the employment setting.  Lord Neuberger thought that to be realistic.  Further, we cannot overlook the fact that Mr Malcolm had the advantage of being represented by Jan Luba QC who, in addition to being a leading practitioner in the housing field, also sits as a part-time judge in this appeal tribunal.   We are confident that if the point now taken by Mr Starcevic was even arguable in Malcolm it would have been deployed there.

(3)	The question as to whether the DDA can be raised as a defence to a lawful claim for possession in the housing context seems to us to be quite separate from the comparator question.  The decision of the Court of Appeal in Floyd, another housing case, was approved by the majority of the House in Malcolm on the principle that the DDA could not be used as a defence to a lawful claim for possession.  Having considered the judgment of Mummery LJ in Floyd (paragraphs 42-73) dealing with the third submission advanced by Mr Luba QC, again appearing for the tenant, that the DDA may afford a defence to possession proceedings, nowhere is there mention of the appropriate comparator for the purposes of disability-related discrimination in the housing (or employment) context.  With very great deference we are unable to discern any inconsistency between the approach of Mummery LJ to the comparator question in Novacold and the DDA defence argument rejected in Floyd, notwithstanding the opinions of Lord Scott and Lord Brown expressed, respectively, at paragraphs 37 and 112 of Malcolm.

(4)	Finally, the policy consideration of adopting the wider construction in employment cases and the narrower in housing cases.  That is a matter for Parliament.  If it is thought necessary to further amend the legislation so as to provide for different comparators in different contexts so be it.  For our part we are quite satisfied that, following Malcolm, the wider comparator formulated by Mummery LJ in Novacold is incorrect.  The narrower comparator is to be applied in employment cases such as the present, ‘however inconvenient’; as Baroness Hale observed.  Whilst reducing the effectiveness of disability-related discrimination for disabled employees the opportunity for ‘positive’ discrimination remains via the reasonable adjustment route.  We note that the duty to make reasonable adjustments in the housing context was not introduced until after the cause of action arose in Malcolm’s case (see Lord Brown, paragraph 114).

23.	Before leaving Malcolm we should mention a further issue considered by the House in that case, namely the meaning of ‘for a reason which relates to the person’s disability’ in s3A(1)(a).  In view of our ruling on the comparator question we do not find it necessary to consider the ‘reason’ question in relation to what we shall call ‘the Angelina Mathers incident’.  It is not raised in relation to the ‘ill-health retirement’ issue by Mr Williams in either his grounds of appeal, nor his skeleton argument and oral submissions.  Accordingly, notwithstanding the interesting submissions of Mr Starcevic on the proper analysis of the speeches in Malcolm on the reason question, that must await another day.

The Employment Tribunal’s conclusions
24.	Having set out nine issues identified at an earlier CMD held on 31 July 2007 (Reasons paragraph 7) Judge Heal’s Tribunal resolved them in the following way:

(1)	Reasonable adjustment.  They found that the Respondent had failed to make reasonable adjustments by way of the timely provision of a suitable desk and chair for the Claimant’s use when working from home and secondly in relation to home working after 18 July 2007.  These findings are not challenged on appeal.

(2)	Limitation.  In relation to the provision of a suitable work station at home between October 2005 and November 2006 the Employment Tribunal considered it just and equitable to extend time for the reasons given at paragraphs 60-63, if the  claim was not presented within time by virtue of Regulation 15 of the Dispute (Resolution) Regulations 2004 (paragraph 59).  Those findings are not challenged on appeal.

There is however a challenge to the Tribunal extending time in relation to the disability-related discrimination claim concerning the Angelina Mathers incident (Reasons para 73; supplemented by additional reasons given by the Tribunal following an enquiry by the Employment Appeal Tribunal under the Burns/Barke procedure).  We do not find it necessary to resolve that issue due to our finding which follows on the substantive challenge to the Tribunal’s finding of disability-related discrimination (Angelina Mathers incident) on the comparator question.

(3)	Angelina Mathers.  The Employment Tribunal rejected a claim of direct discrimination under this head (paragraphs 64-65), but upheld a claim of disability-related discrimination by adapting the four questions posed by Hooper LJ in O’Hanlon (paragraph 87, not 37 as mentioned at paragraph 66 of their Reasons).

(4)	Ill-Health retirement.  This claim of disability-related discrimination was upheld.  The Employment Tribunal found (paragraph 79) that for a reason related to her disability (she could not work in an office) the Respondent put her under pressure to apply for ill-health retirement.  A comparator to whom that reason did not relate (i.e. a person who could work in an office) would not have been put under that pressure.  She was less favourably treated than those who could work full-time in an office.  She suffered a detriment;  she wanted to work not retire.  The defence of justification was not made out.

(5)	Compensation.  Based on their findings at paragraphs 80-81 the Tribunal awarded £7,000 for injury to feelings.

The Appeal
25.	The Respondent challenges the findings of disability-related discrimination in relation both to the Angelina Mathers incident and the ill-health retirement issue and the consequent knock-on-effect on the award of compensation.

Angelina Mathers
26.	Originally, by their grounds of appeal the Respondent contended (a) that the Employment Tribunal was wrong to extend time (b) that the threatened disciplinary proceedings were not disability-related and (c) that the Employment Tribunal failed properly to apply the reverse burden of proof. 

27.	However, in his oral submissions, without objection by Mr Starcevic, Mr Williams advanced the argument that the Employment Tribunal had used the wrong comparator by reference to Malcolm.  Mr Starcevic accepted that if the narrower comparison espoused by the majority in Malcolm applied then the Employment Tribunal was wrong to use the Novacold comparator.  We have ruled that the Malcolm comparator is to be applied and consequently, although correct to use the Novacold comparator at the time of their decision, applying the four questions posed by Hooper LJ in O’Hanlon, the Tribunal’s approach cannot now be upheld in the light of Malcolm.  Since, at paragraph 65 (in relation to direct discrimination) the Employment Tribunal expressly found that had Angelina Mathers complained about an employee who did not have the Claimant’s disability the result would have been the same, it must follow that had the ‘Malcolm comparator’ been used, that is, a non‑disabled employee who had abused Ms Mathers on the telephone, precisely the same outcome would have obtained.  Thus, the Claimant was not less favourably treated than the appropriate hypothetical comparator and her claim of disability-related discrimination must necessarily fail.  Accordingly we shall allow the appeal on this basis and set aside the finding of disability-related discrimination.

Ill-Health Retirement
28.	Here, the sole ground of appeal relates to the appropriate comparator.  It is common ground before us in this appeal, assuming that the Malcolm comparator ought to be used, that the Employment Tribunal again fell into error;  the correct comparator is a non-disabled employee unable to work full-time in an office.

29.	It follows that this part of the appeal also succeeds on the comparator issue.  However, the result of that finding is not as clear cut as in the case of the Angelina Mathers incident.  In these circumstances we accept Mr Starcevic’s submission that the correct course is to remit this aspect of the case back to the same Employment Tribunal chaired by Judge Heal for determination of this question by reference to the correct comparator.

Compensation
30.	Any adjustment to the figure for injury to feelings will depend (a) on removing the Angelina Mathers disability-related discrimination from the equation and (b) on the Employment Tribunal’s further finding on the ill-health retirement disability-related discrimination claim.  Accordingly, it seems appropriate to remit also the question of compensation for re-assessment by Judge Heal’s Tribunal.