The claimant brought claims of disability discrimination, namely a failure to make a reasonable adjustment, and four complaints of harassment, together with a claim of constructive unfair dismissal. All the claims were dismissed and the constructive dismissal claim was also dismissed by the Court of Appeal. The ET found, in relation to the disability discrimination claims, that the claimant was not disabled within the meaning of the DDA but that if she was, they rejected all claims on their merits.  The claimant appealed.

The EAT dismissed the appeal. Although the Tribunal was addressed on the deduced effects of the claimant's condition, nowhere did they deal with this point in their reasons.  For that reason alone, the finding that the claimant was not disabled could not stand. However, it followed that even if the claimant were found to be disabled, taking into account the deduced effects following reconsideration by the Tribunal below, no error of law had been made out in relation to the Tribunal's alternative findings on the merits of the DDA claims and so the issue as to whether the claimant was disabled was rendered moot.

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Appeal No. UKEAT/0157/13/MC

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 10 October 2013

Before

HIS HONOUR JUDGE PETER CLARK

MR M CLANCY

MR M WORTHINGTON

MS CHENEMBO (APPELLANT)

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LONDON BOROUGH OF LAMBETH (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR PAUL MEFFUL (Representative)

For the Respondent
MR DAVID E GRANT (of Counsel)
Instructed by:
London Borough of Lambeth
Legal Services
Room 205
Lambeth Town Hall
Brixton Hill
London
SW2 1RW

DISABILITY DISCRIMINATION – Reasonable adjustments

Issue as to whether Claimant was disabled rendered moot by Employment Tribunal's alternative and sustainable findings that, on the facts, there was no failure by the Respondent to make reasonable adjustments.

1. The Claimant, Ms Chenembo, resigned from her employment with the Respondent, the London Borough of Lambeth, on 7 September 2010. She brought two claims before the London South Employment Tribunal, later combined, complaining of disability discrimination, namely a failure to make a reasonable adjustment, and four complaints of harassment, together with a claim of constructive unfair dismissal. By a reserved Judgment promulgated with Reasons on 26 March 2012 a Tribunal chaired by Employment Judge Houghton dismissed all her claims. Against that Judgment she appealed to the EAT. HHJ David Richardson rejected her first Notice of Appeal on the paper sift under rule 3(7) and a further fresh Notice of Appeal under rule 3(8).

1. She went before HHJ McMullen QC at an appellant-only rule 3(10) oral hearing on 3 April 2013; she was then represented by counsel under the ELAAS pro bono scheme. That Judge dismissed her appeal against the finding that she was not constructively dismissed. An application for permission to appeal that ruling has been dismissed by the Court of Appeal both on paper and now following an oral hearing, we are told this morning.

1. As to the Disability Discrimination Act (DDA) claims, the Tribunal found that the Claimant was not disabled within the meaning of the Act but that if she was, they rejected all claims on their merits. Judge McMullen identified two issues in relation to the finding that the Claimant was not disabled and two further issues consequent upon a potential finding that she was disabled that he ruled ought to proceed to this full hearing.

1. Today we have heard argument from both parties: Mr Mefful, the Claimant's husband, who conducted her case below and Mr Grant of counsel, who has represented the Respondent throughout.

1. The first question is whether the Tribunal was entitled to conclude that the Claimant, who suffers from anxiety and depression, did not experience a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities (see Reasons, paragraphs 71-77). Based on the equivocal medical evidence and the sceptical view that the Tribunal formed of the Claimant's evidence, we are satisfied that the Tribunal were entitled to reach that conclusion, subject to one caveat. Although the Tribunal was addressed on the deduced effects of the Claimant's condition, nowhere do they deal with this point in their Reasons. For that reason alone, as Mr Grant accepts, the finding that the Claimant was not disabled cannot stand. It would require a reconsideration either by the same or a different Tribunal. However, that exercise will only be appropriate if the Tribunal's alternative findings based on the premise that she was disabled are themselves unsustainable on appeal.

1. That brings us to the two further points identified by Judge McMullen at paragraphs 10 and 11 of his Judgment and referred to at paragraph 2 of his order seal dated 5 April 2013. The first relates to paragraph 89 of the Tribunal's Reasons, dealing with a formal warning issued to the Claimant for failing to attend a meeting fixed by the Respondent for 16 February 2010. The Tribunal dealt with that issue on the basis that she was not disabled and therefore the warning was properly issued in accordance with the Respondent's sick absence policy. What, then, if she was disabled, contrary to the Tribunal's assessment? The short answer, as Mr Grant submitted, is that that enquiry goes nowhere, because the warning and the findings at paragraph 89 relate only to the complaint of constructive unfair dismissal and that claim is no longer live following the outcome of the appeal both here and in the Court of Appeal. It is plain that paragraphs 83-94 are concerned only with the constructive dismissal claim. The point is therefore irrelevant to the claims under the DDA.

1. The second issue relates to the Tribunal's findings at paragraphs 40-48 of their Reasons, referred to at paragraph 11 of the rule 3(10) Judgment, the Claimant's failure to attend that meeting. Mr Mefful submits that it was due to illness on the day. However, Mr Grant points to the Tribunal's findings of fact at paragraph 79 of their Reasons. The Tribunal are there dealing with the reasonable adjustment question identified under the heading "issues" at paragraph 2(i) of the Reasons. The relevant proposed adjustment was that instead of attending meetings in person they should be dealt with by means of telephone or home visits. The material question is whether, by requiring her to attend meetings in person, the Respondent was placing the Claimant at a substantial disadvantage when compared to an able-bodied comparator. At paragraph 79 the Tribunal answered that question in the negative, for the reasons they have given. Mr Mefful takes the point that in her witness statement the Claimant said that she needed to be accompanied by a family member before leaving the house and none was available on that day. No doubt the Tribunal considered that evidence; however, they concluded that since the Claimant was able to attend occupational health appointments on 22 January and 7 February 2010 and appointments on 26 March and 28 July, together with a job interview with the London Borough of Camden in either April or May 2010, she was able to attend the 16 February meeting and thus on the evidence the requirement to attend meetings did not place the Claimant at a substantial disadvantage. In our judgment, that was a finding that the Tribunal was entitled to reach.

1. It follows that even if the Claimant were found to be disabled, taking into account the deduced effects following reconsideration by the Tribunal below, no error of law has been made out in relation to the Tribunal's alternative findings on the merits of the DDA claims. Consequently, no purpose will be served by remitting the case on the disability issue, and, accordingly, this appeal fails and is dismissed.