Appeal No. UKEAT/0612/11/DM

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

	At the Tribunal
	On 27 April 2012

Before
HIS HONOUR JUDGE DAVID RICHARDSON
BARONESS DRAKE OF SHENE
MRS A GALLICO

PROSPECTS FOR PEOPLE WITH LEARNING DIFFICULTIES	APPELLANT

MR E HARRIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR RICHARD O’DAIR
(of Counsel)
Instructed by:
Messrs Hewetts Solicitors
55-57 London Street
Reading
Berkshire
RG1 4PS	
For the Respondent	MS KATE ANNAND
(of Counsel)
Instructed by:
Thompsons Solicitors
Agincourt House
14-18 Newport Road
Cardiff
CF24 0SW	

SUMMARY
HARASSMENT
UNFAIR DISMISSAL – Reasonableness of dismissal

Harassment (Disability Discrimination Act 1995, section 3B) and unfair dismissal.   Appeal on grounds that Tribunal’s reasoning perverse and/or in disregard of its own findings.  Appeal dismissed.

HIS HONOUR JUDGE DAVID RICHARDSON 

1.	This is an appeal by Prospects for People with Learning Disabilities (“Prospects”) against a judgment of the Employment Tribunal sitting in Cardiff (Employment Judge Cadney presiding) dated 5 August 2011.  The Tribunal heard claims of unfair dismissal and disability discrimination (including harassment) brought by Mrs Elizabeth Harris.  It upheld her claim of unfair dismissal and (in part only) her claim of harassment.  Other claims were dismissed.

The background facts
2.	Prospects is a national organisation providing supported living services for people with disabilities.  In Neath it supported two bungalows, each built to house three residents.  These residents had severe disabilities.  It is relevant to describe briefly the condition of three residents in one of the bungalows.  One was blind, deaf, epileptic, with sensory impairment and challenging and self injurious behaviour.  Another was wheelchair dependent, requiring the use of a hoist, and was diabetic and registered blind.  A third had no verbal communication, was epileptic, had a tendency to slip and fall, and exhibited challenging and self injurious behaviour.

3.	Ms Harris was a support worker.  She was employed at Neath from 27 May 2002 until the termination of her employment with effect from 18 November 2010.  She worked mainly in the bungalow to which we have referred, undertaking night shifts.

4.	Ms Harris has suffered for many years from a rare congenital musculoskeletal condition known as arthrogryposis.  It affects her joints, resulting in weakness and stiffness.  She is unable to straighten her arms and has had knee problems.  She had knee alignment surgery in January 2006, an ankle operation in October 2008 and knee replacement surgery in January 2009.  She returned to work after this last surgery on 20 February 2009.  Her condition has not prevented her caring for her children and elderly mother, and doing her housework and shopping.  But she has limited strength, limited capacity for manual handling and limited dexterity.  At all material times she has been a disabled person within the meaning of the Disability Discrimination Act 1995 and the Equality Act 2010.  

5.	By reason of her disability Ms Harris could not undertake cardio-pulmonary resuscitation (“CPR”), heavy lifting, and many manual tasks.  As the Tribunal found, Prospects knew this and had continued to employ her.  

6.	Ms Harris was expected to have a First Aid Certificate.  This required renewal from time to time, and that renewal required attendance at a training course.  The course involved CPR; Ms Harris had always been unable to undertake it; but it seems that previously her inability to perform CPR had not prevented the grant of the certificate by the training organisation which Prospects used.

7.	In 2009 after she returned to work Ms Harris fell into dispute with her manager, Ms Williams.  She was asked to work in the other bungalow; she refused, saying that she felt more at risk in the other bungalow.  Ms Harris was referred for an occupational health report.  She refused to attend.  In due course a short GP’s report was obtained with her consent; and an occupational health report based on the GP report confirmed her condition in general terms.  

8.	Ms Harris’s First Aid Certificate had expired in November 2009.  Prospects was well aware that she would have difficulty in renewing her certificate because the training now required the person trained to demonstrate CPR: this was specifically stated in a report written in December 2009.  However, Prospects left the matter until Ms Harris attended a course for her replacement certificate on 5 March 2010.  She was again unable to undertake CPR; and on this occasion the trainer declined to grant her a First Aid Certificate.

9.	In consequence Ms Harris was suspended on full pay.  She was informed of her suspension at a meeting; but there was no prior discussion with her.  The Tribunal described the decision as follows in its findings of fact.

“…the Claimant was suspended with immediate effect because of concerns of safety.  This was a decision taken by Steve Crowther and Jane Hanwell because they believed that the failure of the claimant to pass the training course meant that she could not perform CPR.  They decided to suspend and to ask for a doctor’s report.”

10.	A report was indeed obtained from an occupational health physician.  This confirmed her condition.  It confirmed that she would not be capable of doing a variety of tasks which required physical strength: CPR was one of these.  The report said that Prospects, if it had not already done so, might wish to consider reasonable adjustments.

11.	On 23 April 2010 Prospects met Ms Harris and agreed with her that she would be transferred from the night shift to work as a supernumerary on the day shift.  While she did so risk assessments were prepared by management relating to various tasks which she undertook: she saw and signed these risk assessments on 14 May 2010.  A “shopping list” of the tasks she could under take was also made. 

12.	On the basis of these documents Ms Harris was again suspended on 19 August 2010 – on the grounds of her own safety. There was again no discussion with her prior to the suspension.   She was seen again by the occupational health physician in September.  It found that any increased risk to her own safety at work was small   As regards her capabilities, the physician pointed out that he had already advised Prospects that she was not capable of undertaking certain tasks “such as practical first aid and physical restraint of agitated clients”.

13.	Following this report Ms Harris was told she could return to work (but not, as the Tribunal noted, why).  On 7 October 2010 an email was written to Ms Harris asking her to attend a meeting.  The email dealt with the timing of a grievance appeal hearing and declined her request for a companion to attend a return to work meeting.  Almost incidentally the email said “it would be a good idea to hold a meeting at which we can review your situation”.  She was told she could bring a companion to this meeting.  She was not told that the meeting might discuss termination of her employment.  The Tribunal was critical of this email: it said that the phraseology was “opaque”; and that it should have been made abundantly clear if the meeting was intended to discuss termination of her employment.

14.	On 4 November 2010 the meeting was held.  Neither Ms Harris nor her representative understood, when they attended the meeting, that it might discuss termination of her employment.  But this is what occurred.  She was told both at the meeting and in a confirmatory letter, that in her present job the risks run were unacceptable and Prospects must “act to end them” and that it seemed “to have no choice but to end her employment” unless there was some reasonable alternative employment.  She was told all staff had to have qualifications in first aid and manual handling; and that continuing to employ her as a supernumerary was not possible.  She was asked to consider any other options before a final decision was taken.

15.	A further meeting took place on 11 November.  At this meeting Ms Harris suggested an alternative means of carrying out CPR using the foot.  She questioned risk assessments and shopping list.  She was told that the key issues were first aid and manual handling.

16.	On 16 November Ms Harris’s employment was terminated.  The letter stated

“We have already taken medical advice which is clear, for example, the Doctor states that you are unable to conduct CPR.  She further states that there are severe limitations that impede manual handling, which in the scenario.. above, could be potentially lethal.  Unfortunately, no amount of reassessment is going to change this.  It is also the case that management is accountable for any incidents and management has therefore assessment [sic] the risk.”

17.	On 15 December an appeal hearing took place, concentrating on the issues of first aid training and manual handling.  The appeal was dismissed.

The Tribunal’s reasons
18.	The Tribunal, after setting out its findings of fact, set out its conclusions.  It dismissed a claim of victimisation.  It turned to the question of harassment, summarising accurately the terms of section 3B of the Disability Discrimination Act 1995 (and section 26 of the Equality Act 2010, which cast the definition of harassment in slightly different terms).

19.	The Tribunal dealt with the first suspension in paragraphs 51 and 52 of its reasons.

“51. The second element is the claimant's suspension. In our judgment, there is a good deal more in the claimant's case in respect of this allegation. Put simply, the claimant had been employed since 2002 and there had never been any concern over the quality of her work. It had become increasingly clear and certainly had been known to the respondents since May 2009, that she herself believed there were limitations on her work as a result of her disability, and as was shown by Ms Williams comments on Christmas Eve, it was known the respondent that she had significant physical limitations. They had not at any stage prior to the 5th March 2010, despite the fact that claimant's First Aid Certificate had expired in November 2009, to limit her duties in any way. However, immediately upon discovering that the claimant had been unable to successively complete the CPR part of the First Aid Course on 5th March 2010, it was decided that she should be suspended without any prior discussion with her or consultation with her, or apparently any consideration of whether there was any other task in which she could be employed. She was subsequently employed from the 7th May 2010, in a supernumerary capacity on the day shift. It is hard to see why this could not have been considered or implemented in March. 
52. The respondent suggests that since suspension is a neutral act, pending investigation, that this is not capable of being an act of harassment. However, in our judgment simply to suspend a disabled person because of the consequence of a disability which had been known by her immediate Line Manager for something approaching a year, which she herself had asserted seriously affected her ability to do her job, in circumstances in which they had known for at least 4 months that she did not possess an appropriate First Aid Certificate and should have known that she was extremely unlikely to be able to obtain one is certainly capable of violating her dignity. The reason for this in our view is that it evinces a failure to actively consider the effect and consequences of the disability at an early stage resulting in a suspension which may, had they addressed the question earlier have been entirely unnecessary. Accordingly in our judgment that, subject again to the points about time limits, can reasonably be considered conduct which violated her dignity and is an act of harassment.”

20.	The Tribunal turned to the second suspension in paragraph 56 of its reasons.

“56. The next matter is the second suspension on the 20th August 2010.  Again, in our judgment, there is merit in this allegation.  Once again, the suspension was decided without any consultation with the claimant.  Given that it was apparently based upon the risk assessment the claimant had herself completed, together with the shopping list assessment which she had not, and given that it was in respect of the risk of her slipping or falling, something which had not eventuated in the 8 years of her employment, it is difficult to see why it was important to suspend her at that point.  It appears to us that the reasons for the suspension are in fact very scant, but perhaps more pertinently in terms of harassment, that it is a violation of a disabled person’s dignity, simply to suspend them from work without any discussion or consultation about the reasons for it.”

21.	The Tribunal found, however, that Ms Harris’s dismissal was not an act of disability discrimination.  Although she was treated unfavourably by reason of something in consequence of her disability, her dismissal was a proportionate means of achieving a legitimate aim; for reasons which it set out in some detail, there were no reasonable adjustments which would have allowed her to continue in the employment of Prospects, given her physical limitations.  The Tribunal said:

“It follows that in our judgment, none of the adjustments contended for could have allowed the claimant to continue in the role of support worker as there were fundamental and irreducible aspects of the role that she could not perform.”
“We accept the respondent’s primary case, which is that their essential duty and their primary duty is the care of the residents for whom they are concerned.  That includes providing staff who are able to assist them in an emergency.”

22.	Although the dismissal was not an act of disability discrimination, the Tribunal found that the dismissal was unfair.  The Tribunal accepted that the dismissal was for capability, a potentially fair reason.  It accepted that the decision to dismiss Ms Harris could be substantively fair.  It found, however, that the procedure was not fair.  It said:

“70. For the reasons set out above, in our judgment, it was known to the respondent that the claimant had not appreciated prior to the meeting of the 4th November 2010, that there was any risk to her employment.  Accordingly, whether she should or should not have appreciated that fact, she had no reasonable opportunity to prepare for the meeting of the 4th November 2010.  She was then presented with what is essentially a fait accompli, which was reinforced on the 11th November 2010, leading to her dismissal.  It follows that in our judgment, we have grave concerns as to whether this dismissal was procedurally fair.  We have concluded it was not.  There was no consultation as to the underlying medical condition or evidence as contemplated in the well known case of East Lindsey District Council v Daubney which is in itself in our judgment sufficient to render the dismissal unfair.”

23.	The Tribunal went on to say: –

“72. We have not had submissions specifically as to Polkey, (although general points are made in the written submissions) but it will be apparent that in our judgment, it was inevitable had a fair procedure been adopted that the claimant would have been dismissed.  This is in the circumstances a provisional view set out to assist the parties in any discussions, and is subject to any further submissions either party would wish to make on hearing of remedy in this matter.”

Statutory provisions
24.	The two instances of harassment which the Tribunal found to be established occurred prior to 1 October 2010 when the Equality Act 2010 came into force.  Accordingly the relevant law concerning harassment was contained in the Disability Discrimination Act 1995.

25.	Section 3B provided:

“3B Meaning of ‘harassment’
(1) For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person’s disability, he engages in unwanted conduct which has the purpose or effect of -
(a) violating the disabled person’s dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
(2) Conduct shall be regard as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.”

26.	By virtue of section 4(3)(b) it was unlawful for an employer, in relation to employment by him, to subject to harassment a disabled employee whom he employed.

27.	It will be noted that there is no defence of justification within section 3B.  Section 3B(2), however, provides a statutory direction that conduct shall be regarded as falling within section 3B(1) only if it should reasonably be considered as having that effect.

28.	As to unfair dismissal, the Tribunal, having found that the reason for dismissal related to capability, was obliged to apply section 98(4) of the Employment Rights Act 1996:

“98(4) In any other case where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”

Suspension
29.	On behalf of Prospects, Mr O’Dair first addressed us on the question of suspension.  He does not suggest that the Employment Tribunal stated the law incorrectly, or that the Tribunal’s reasons are indicative of any misunderstanding of the law.  He puts his case in two ways.  He submits that the Employment Tribunal’s reasons are perverse; alternatively he submits that the Tribunal has “failed to consider” matters which it ought to have considered.

30.	As regard the first suspension, he submits that the Employment Tribunal left out of account its finding that Ms Harris had refused to co-operate with the making of an occupational health report.  This, he submitted, was fundamentally inconsistent with its findings in paragraphs 51 and 52 that there should have been earlier consultation with her.  The Tribunal’s conclusion on this point was perverse.

31.	Further, he submitted that the Tribunal had lost sight of the purpose of the suspension.  It was, he submitted, appropriate and necessary for the protection of the residents – in particular a resident who was in poor health that very weekend – that the suspension was imposed.  Such a suspension could not, he submitted, be an act of harassment.   He criticised the Tribunal for, as he would put it, applying hindsight to the decision which Prospects’ manager had to take at short notice after Ms Harris failed to acquire a first aid certificate.  He submitted that the Tribunal’s conclusion was at odds with its eventual findings in, for example, paragraph 72 of its reasons.

32.	As regards the second suspension, he submitted that the Tribunal failed to appreciate Prospects’ duty, both legal and moral, to an employee such as Ms Harris.  He referred us to section 59 of the Disability Discrimination Act 1995, which provides that nothing in the Act renders unlawful any act done in pursuance of any enactment; and took us to Amnesty International v Ahmed [2009] ICR 67, following and applying GMC v Goba [1998] ICR 885, in support of a submission that Prospects’ action was not unlawful so long as it was reasonably necessary to suspend Ms Harris.  He criticised the Tribunal’s conclusion that there was “scant” reason for suspension; he said that the decision was honestly taken for her safety; and such reasons could not be described as “scant”.  He accepted that the risk assessments showed only a moderate risk, and that the Claimant had been working for Prospects for some years; nevertheless he submitted that the Tribunal’s conclusions were perverse.

33.	On the question of suspension our conclusions are as follows.

34.	The Tribunal was, we think, correct to see the importance of, and address, Mr O’Dair’s submission that suspension on full pay was a neutral act (see paragraph 52).  Where an employer acts reasonably in imposing suspension with pay, we do not think his action can or should amount to an act of harassment.  In the generality of cases, suspension on full pay will not amount to harassment.  

35.	On the one hand, suspension ought never to be routine: it ought to be imposed only where it is necessary to do and after careful consideration; and it should be kept under review to ensure that it is not unnecessarily protracted: see the ACAS Code, para 8, and the Guide, para 4.15 – which provide as follows: –

“8. In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.
4.15 There may be instances where suspension with pay is necessary while investigations are carried out.  For example where relationships have broken down, in gross misconduct cases or where there are risks to an employee’s or the company’s property or responsibilities to other parties.  Exceptionally you may wish to consider suspension with pay where you have reasonable grounds for concern that evidence has been tampered with, destroyed or witnesses pressurised before the meeting.
Suspension with pay should only be imposed after careful consideration and should be reviewed to ensure it is not unnecessarily protracted.  It should be made clear that suspension is not an assumption of guilt and is not considered a disciplinary sanction.”

36.	On the other hand, however, suspension can be necessary for a variety of reasons; and if an employer reasonably believes that it is necessary, and makes clear to an employee that the suspension is pending investigation and decision, we do not think it will fall within the harassment provisions.  These provisions do not make specific provision for a defence of justification, but if a suspension is properly and reasonably imposed it will not be reasonable to consider it as having the effects set out in section 3B(1): see section 3B(2).

37.	The Tribunal was, however, entitled in our judgment to find that the suspension imposed in this case was far removed from the generality of cases.

38.	We reject Mr O’Dair’s criticism that the Tribunal has failed to take into account Ms Harris’s refusal, some nine months earlier, to co-operate with the making of an occupational health report.  That refusal related to a quite different issue.  As regards Ms Harris’s ability to undertake CPR, there was no doubt.  Prospects’ report in December 2009 highlighted it; but Prospects took no steps to consider it with Ms Harris.  It sent her on a course containing a component which it knew was a problem for her, given her disability.  Without any discussion on the question, prior to or after the course, it suspended her.  We see no error of law or perversity in the Tribunal’s reasons.

39.	We further reject his submission that the Tribunal was bound to find suspension necessary for the protection of the residents.  As the Tribunal itself found, there was a requirement for a member of staff to be trained in CPR and to have a certificate to this effect.  But it does not follow that Ms Harris had to be suspended peremptorily.  With forethought and preparation, this could have been avoided; or she could have worked as a supernumerary.   We reject Mr O’Dair’s criticism that the Tribunal applied hindsight to the decision which had to be taken on 5 March.  The Tribunal’s point was that if proper consideration had been given to the position of Ms Harris, a disabled person, the peremptory suspension could have been avoided.

40.	As regards the second suspension, the Tribunal again reached, in our judgment, a conclusion which it was entitled to reach.  It is not, and cannot possibly be, the law that an employer is required peremptorily to suspend an employee, disabled or not disabled, simply because a risk assessment shows that some part of the work creates a moderate risk for them.  The Tribunal was entitled to criticise Prospects for failing to consult with Ms Harris properly.  Its reasons for imposing this suspension were indeed scant, as the subsequent occupational health report showed; and dismissal, when it occurred, took place on different grounds after she had returned to work.

41.	Mr O’Dair’s point under section 59 of the Disability Discrimination Act 1995 was not taken below and is not open to him now as a discrete point.  In view of the subsequent occupational health report, however, we consider that the Tribunal would inevitably have come to the conclusion that suspension of Ms Harris for her own safety was not reasonably necessary.

42.	For these reasons we consider that the Employment Tribunal, in the particular and unusual circumstances of this case, was entitled in law to conclude that the case of harassment was made out; its decision was not perverse.

Unfair dismissal
43.	As regards unfair dismissal, Mr O’Dair submits that the Tribunal has placed altogether too much weight on what occurred on 4 November.  This, he submits, was no more than an introductory meeting; Ms Harris and her representative had a full opportunity to make submissions at a meeting on 11 November and at the appeal.  He submits that Prospects could simply have written to her on that day; if it had done so, and held a meeting on 11 November, its procedure could not be said to be unfair.  Therefore what happened on 4 November could not found a finding of unfair dismissal.  He distinguished East Lindsey DC v Daubney on its facts.

44.	Further Mr O’Dair submits that the Tribunal has left out of account the appeal which took place in the following month.  He took us to the minutes of the appeal, and suggested that this was a complete appeal which gave Ms Harris every opportunity to put her case.  

45.	We reject these submissions; in our judgment the Tribunal did not err in law.

46.	The Tribunal was in our judgment right to conclude that if an employer is considering the dismissal of a disabled employee on the grounds of capability, it should consult the employee in good time so that an employee knows the seriousness of the position and can consider her own response.  In this case there was no such consultation; the email on 7 October did not even tell Ms Harris that her employment was at risk. The Tribunal was entitled to find that, when the employee was first told that her employment was at risk at a meeting when the employer informed her that it had already taken a provisional decision to dismiss, there was no adequate process of consultation.  The Tribunal was entitled to find that this lack of consultation was not cured by a meeting after a provisional decision to dismiss had been notified, still less by an appeal after the final decision.  We would add that the appeal meeting was, as the notes indicate, held on a limited basis; but the fundamental point is that the time for consultation to begin was prior to the start of the formal dismissal process.

47.	For these reasons we conclude that the Tribunal did not err in law; and did not reach a perverse conclusion.