Employment Cases Update

Brangwyn v South Warwickshire NHS Foundation Trust [2018] EWCA Civ 2235

Date published: 12/10/2018

Appeal against the dismissal of the Claimant's claim of disability discrimination. Appeal dismissed.

The Claimant worked as an Occupational Therapy Technician and suffered from a phobia about blood, injections, and needles. He was a disabled person within the meaning of the EA 2010. The ET, and then the EAT (read the full text of the judgment here), rejected his claim of disability discrimination after he was dismissed following a lengthy period of sickness -  he had been given several new job descriptions which attempted to address his concerns that he would be required to enter hospital wards for meetings and to collect patients, but none of the job descriptions satisfactorily reassured him, even though he had been told that he would not be required to enter the wards. He appealed to the Court of Appeal. The principal ground of appeal was that it was an error by the ET not to treat the requirement in various editions of the job description to go onto the wards as a PCP in themselves, separately from the issue of whether the Claimant was in fact to go onto the wards (and if so to what extent).

The appeal was dismissed. The ET were correct to view the interactions between the employers and the Claimant as a whole. From the time when the employers became aware that the Claimant had a disability they made it clear to him that it would not be part of his duties to collect patients from their beds or return them to their beds, still less to use a hoist to lift them out of their beds. They did not, therefore, impose a PCP which in any sense required or would in the future require the Claimant to do any of these things.

Employment Claims without a Lawyer 2nd edition published March 2018

Case No: A2/2016/1631

Neutral Citation Number: [2018] EWCA Civ 2235

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

MR JUSTICE LANGSTAFF (PRESIDENT)

UKEAT/0125/15/LA

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11/10/2018

Before :

LORD JUSTICE BEAN

and

LORD JUSTICE FLAUX

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Between :

ANDREW CHARLES BRANGWYN (Appellant)

- and -

SOUTH WARWICKSHIRE NHS FOUNDATION TRUST (Respondent)

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Sarah Keogh (instructed by Bar Pro Bono Unit) for the Appellant

Tim Sheppard (instructed by Mill & Reeve LLP) for the Respondent

Hearing date : 04 October 2018

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Judgment

Lord Justice Bean :

1. The Appellant, Mr Andrew Brangwyn, was employed from 16 June 2008 as a Band 4 Occupational Therapy Technician (Workshop) at the Royal Leamington Spa rehabilitation hospital. The hospital workshop was an integral part of the Occupational Therapy Department. Access to the workshop was through common areas of the hospital.

2. The Appellant has a phobia about blood, injections, and needles. It was determined at a preliminary hearing in the Employment Tribunal (ET) that he is a disabled person. His condition has worsened over time. He told the ET that it has reached the stage when watching medical programmes on television or hearing about injuries and blood affects him. He has a real problem with seeing open wounds or witnessing an injection but not with healed wounds or disabilities such as amputations.

3. Mr Brangwyn had told his supervisor on two occasions about his squeamishness but the Tribunal found, and it is no longer in dispute, that neither he nor his managers knew that he had a medically diagnosed phobia or a disability until May 2011 at the earliest.

4. On 25 November 2010 he was given a new job description. Two hospitals had recently merged and there was a TUPE transfer. The new job description (JD1) was very different from his original one and listed several tasks which he had not been carrying out previously. The ET found that there had been no consultation with him about it and this contributed to his mistrust and suspicion of his managers. Eventually, at a meeting on 23 December 2010 he was told that the job description was wrong and an apology was offered.

5. On 13 January 2011 a manager, Ms Mead, told him that he would have to attend a medical handover meeting on the ward. He had never been asked to attend such meetings before. He attended the meeting on 17 January 2011, felt faint and physically sick, and left work early. His next working day was 31 January 2011 when he was required to attend another medical handover meeting. He became ill after attending the meeting. This was the last day on which he actually worked for the Respondent, and I note with regret that it was nearly 8 years ago.

6. From this point onwards until his dismissal on 4 February 2013 Mr Brangwyn was signed off work with stress. He was issued with a second job description which under the heading "physical effort" made reference to the use of hoists, which were used only on the wards. The Appellant had never been asked to use a hoist as he had never worked on the wards.

7. An occupational health report was commissioned. Mr Brangwyn did not tell the OH advisor about his fear of blood and injections nor that meetings were making him ill. He attended a return to work meeting on 8 April 2011 at which he said he did not want to attend meetings on the ward or carry out duties on the ward. Again he did not mention his problems with blood and injections.

8. On 5 May 2011 his GP wrote:-

"I do not expect him to recover or to be fit to return to work until he is confident that he can return to an entirely workshop-based role."

9. On 26 May 2011 Dr Chambers wrote an occupational health report on the Appellant. This stated that "…he has almost a phobic anxiety response to the general surroundings of the ward, i.e. needles, blood, bodily fluids etc… I do not believe that he will be able to work on the ward and I believe this is likely to be the case for the foreseeable future". Dr Chambers concluded that if the job description and ward working issues could be resolved, Mr Brangwyn could return to work.

10. The Appellant lodged a grievance about the changes to his duties as he saw them. A grievance meeting was held on 15 July 2011 with Ms Cross, the manager of Occupational Therapy Services. She agreed to add "workshop" to the Appellant's job title. She considered that the reference to a hoist should remain part of the job description as the appellant might have to assist staff in lifting patients into wheelchairs when he collected or returned them to the ward. She made it clear that he would not have to assist in washing or dressing patients. The Respondent's position was that they could not say that Mr Brangwyn would never have to go on the wards, but his duties (outside the workshop) would be limited to collecting patients from their beds and attending the ward handover meetings. A third version of the job description reflected this.

11. At a second stage grievance meeting on 11 October 2011 it was agreed that Mr Brangwyn would not have to use a hoist. For this part he confirmed that he was happy to continue the occasional collections and returns of patients as he had always done. He would not have to attend meetings on the ward. The ET found that the Appellant was happy with the outcome of this meeting but unfortunately the fourth version of the job description was then issued which did not reflect what had been agreed. This document stated that he would have to attend meetings on the ward once a week.

12. Another referral was made to Occupational Health. On 20 February 2012 Dr Dawson wrote that the Appellant was unlikely in the foreseeable future to be able to return to a role which involved him in ward-based duties and he was not yet ready to return to work on a phased recovery programme.

13. Mr Brangwyn pursued a complaint under the bullying and harassment policy. The complaints were wider ranging than the matters in issue before the ET. The Respondent's investigator, Ms Fereday Smith, carried out what the Tribunal described as an "exemplary investigation report" she recommended that the job description should be amended to give "workshop" as the work base. She asked that consideration should be given to Mr Brangwyn not having to attend the ward to collect patients but recognised this might have an impact on the service in terms of costs and delay to patient care. She recommended holding ward meetings, if practicable, away from the ward environment and that the Appellant should only attend for information about patients attending the workshop. On 29 May 2012 she handed the Appellant a fifth version of the job description. This still referred to attendance at meetings on the ward. Another clause stated that he was not required to collect patients from their bedsides but to support their collection.

14. A file grievance appeal meeting was held on 19 December 2012. The panel agreed that while the Appellant would be required to attend meetings they would not be held on the ward. A sixth version of the job description was sent to Mr Brangwyn on 11 January 2013. Unfortunately clause 1.29 refers to him collecting and returning clients to the bed bays on the ward. As the tribunal put it:-

"It is hardly surprisingly, given Mr Brangwyn's state of health at this time [that] he despaired. He had no further appeal recourse but wrote stating that he could not accept the changes. He never returned to work".

15. He was dismissed following a final sickness review meeting with a Ms Hinds. The letter of dismissal was dated 4 February 2013. Ms Hinds' reasons, as set out later by the ET, were:-

i. "Mr Brangwyn was still medically unfit to return to work after 2 years off. There was no indication when he could return to work and the claimant himself was not able to say when he could return.

ii. The issues put forward as preventing him from returning to work had been resolved but he was still unable to return.

iii. The needs of the service - for two years the respondent had not been able to offer therapy in the woodworking workshop. It was affecting the care of the patients and the respondent was not meeting its service provision requirements.

iv. There had been a change in the patient profile, As a result of therapy being used earlier in the rehabilitation period, the claimant would come into contact with patients who were not so advanced in their recovery, as had been the case when he was at work. As the respondent's witnesses put to us: there was increasing acuity in the type of patients now being referred for therapy.

v. Mr Brangwyn was not well enough for an assessment to see what kind of patients he could work with.

vi. Ms Hinds did not believe that the Trust could reasonably adjust his role to avoid all situations that could potentially put him at risk. This was on the basis of an increased risk, in view of the types of patient he would come into contact with now, and anywhere in the hospital, of triggering a phobic response.

vii. Adjustments which had been made had not enabled Mr Brangwyn to return to work, for example that the handover meetings would not take place on the ward.

viii. Issues which could trigger his phobia went beyond blood and injections. Ms Hinds had been aware of an incident where Mr Brangwyn had required a patient to wear a cap to hide a healing wound. She considered that the position on what triggered the claimant's phobia had changed over time.

ix. The medical reports, in her view, had shifted as well because of what Mr Brangwyn was reporting and his perception about what he could or could not do.

x. There were no suitable alternative vacancies into which Mr Brangwyn could be redeployed. The only woodworking job was in estates and Mr Brangwyn would have had to go onto the wards for such work. Further, the claimant was not himself looking for redeployment at this stage. There was a discussion around ill-health retirement. This issue was left in abeyance as the claimant says that his wife dealt with these matters."

16. The claim to the ET was issued on 6 March 2013. At that stage Mr Brangwyn was acting in person. He ticked the box to say that he was discriminated against on the grounds of disability (and although the unfair dismissal box was not ticked it was accepted at a later hearing that the form ET1 should be treated as though it had been). Following a case management discussion held by Employment Judge Lloyd on 25 June 2013 at which Mr Brangwyn (still acting in person) was ordered to provide further particulars of the disability discrimination claim, he gave such particulars in the form of a "statement of acts of discrimination" as follows:-

"1. On 8 April 2011 and 26th May 2011 the respondents through their manager Ms Cross failed to make a reasonable adjustment of removing the requirement to go onto the medical wards to work and to attend the whole of the ward medical hand over meetings;

2. On 15 July 2011 through their manager Ms Cross the respondents failed to make the same reasonable adjustment;

3. On 2 August 2011 through their manager Mr Pearce the respondents sent the complainant revised written terms incorporating the requirements to do duties on the medical wards and to attend the ward hand over meetings, thereby failing to make the same reasonable adjustment.

4. Within a reasonable time of 14 October 2011 the respondents through their manager Ms Cross failed to make the same reasonable adjustment at the request of their manager Ms Howell;

5. On 18 January 2012 through their manager Ms Cross the respondents sent the complainant written terms and conditions again incorporating the same terms, thereby failing to make the same reasonable adjustment;

6. Within a reasonable time of 29 May 2012 the respondents through their manager Ms Cross failed to make the same reasonable adjustment even though requested to do so by their manager Ms Fereday-Smith;

7. Between 29 May 2012 and 9 November 2012 the respondents refused to adjust the claimant's terms by undertaking a work place assessment without the need for him to attend on the medical wards to do so.

8.0n 11 January 2013 the respondents, through their manager Ms Leggitt sent the claimant a further job description requiring him to attend meetings in which there was medical discussion of the sort which made him ill and thereby failing to make a reasonable adjustment despite the request of the respondents' appeal panel dated 28th December 2012; 9. On 1st February 2013 the respondents dismissed the claimant for a reason relating to his disability namely that he was unable to attend the medical hand over meetings and unable to work on the medical wards and unfairly concluded that he was incapable of the duties of his role.

10. No adjustments were ever made in fact although the respondents' managers Ms Howell, Ms Fereday-Smith and the appeal panel recommended them."

17. The substantive hearing was originally fixed for 25-27 November 2013 but was postponed. A further preliminary hearing was held by telephone before Employment Judge Saunby on 16 January 2014 at which both parties were represented by solicitors. Mr Hanning for the claimant explained that the reasonable adjustments claim was made on the following basis:-

"(1) the provision criterion or practice (the PCP) was the requirement that the claimant go onto medical wards;

(2) this put the claimant at a substantial disadvantage:

(3) the adjustment the claimant says the respondent could have made was to amend his job description so he could not be required to go onto medical wards."

18. The list of issues agreed at that preliminary hearing, so far as relevant, was as follows:

i) Did the respondent impose a practice, criterion or provision (PCP) which required the claimant to go on to medical wards?

ii) Did that PCP put the claimant at a substantial disadvantage?

iii) What steps was it reasonable for the respondent to take and did it unreasonably fail to take those steps?

iv) Was the claimant dismissed because of or for a reason connected to his disability?

19. This part of the list of issues remained unaltered at the substantive hearing; there were additional questions relating to the Appellant's dismissal but these are not the subject of the appeal to this court.

20. As to the PCP, the subject of the first issue, the submission of Ms Davies, counsel for Mr Brangwyn at the substantive hearing before the ET, was that it had three elements, as recorded in paragraph 87 of the judgment:-

i. "Having to handle patients on the ward;

ii. Attending the multi-disciplinary team meetings on the ward; and

iii. Collecting patients from the ward."

Decision of the ET

21. By its reserved judgment dated 2 January 2015 the ET (Employment Judge Cocks and two lay members) rejected the claims for failure to make reasonable adjustments, disability discrimination and unfair dismissal.

22. The tribunal's conclusions were as follows:-

"Did the respondent impose a PCP that required the claimant to go onto the medical wards?

87. The duty to make reasonable adjustments can only arise once the respondent knew, or could reasonably be expected to know that the claimant had a disability. It is common ground and conceded by the claimant that this could only have been after Dr Chambers' report was seen by the managers in late May 2011. Therefore, the two MDT meetings that Mr Brangwyn was required to attend occurred before the duty to make reasonable adjustments could have arisen. So the tribunal asked itself what was being required of the claimant from late May 20117 It is put to us by Ms Davies that there were three elements to this PCP; {they then listed them, as set out above].

88. The tribunal does not consider that concentrating solely on the various job descriptions presents the whole picture of what was happening in relation to what Mr Brangwyn was being required to do. We need to consider not only what was in the job descriptions but also what instructions had actually been given and what the recommendations were from the grievance process. As Mr Sheppard put to us at the start of the hearing, this case is all about perception. As our findings of fact indicate, we agree.

89. Whatever was in the job description about using a hoist, the fact is that the claimant was never required to use one, nor assist in using one. Further, simply because it was under 'physical effort' does not mean that this was a job duty or requirement that he would be made to do. The claimant may have had his suspicions about what he thought he would be required to do in the future, but that perception was not backed up by anything he was actually asked to do,

90. Further, we accept the respondent's evidence that this was a generic job description, which set out certain descriptions or criteria in order to be able to qualify for a specific pay band. It is frequently the case that job descriptions contain criteria which are either not appropriate to the job duties, job roles change over time and job descriptions are never amended, or they are simply never required by management to be done.

91. In respect of attending the MDT meetings - there was a requirement that Mr Brangwyn attended these meetings. These were held on the war. However, this was pre-May 2011 and the duty to make reasonable adjustments had not arisen. As we have stated in the findings of fact, even in June 2011, it was not the location of the meeting (being in an office on the ward) that was the problem for Mr Brangwyn. His position at the time was around the medical jargon. Later on, in particular in the recommendations of both Mrs Fereday Smith and Mr Hunter, Mr Brangwyn would still have had to attend the meetings to be given information about his patients but, if practicable, the meetings were to be held away from the ward. As he did not return to work, we simply do not know if this would have happened. What is clear though, irrespective of failings to reflect the recommendations made in the job descriptions, the requirement had become to attend to attend the meetings but off the ward environment.

92. The third element was that the claimant was required to go onto the ward to collect patients - something which he had previously been doing, although we accept it was no to collect them from bed (except for the one example given from his induction and the visit to the ward with the toy box) Again, by the time Mrs Fereday Smith and Mr Hunt made their recommendations, the claimant was not required to collect patients from their bedside but to support their collection from the ward. As Mr Brangwyn did not return to work, we do not know whether in practice these recommendations would have been ignored and he would have been asked to go the ward.

93. The conclusion of the tribunal is that initially there was a PCP applied that the claimant had to go onto the ward, although in a limited way, ancillary to his main tasks from the workshop and to assist him in doing his job efficiently through attending the meetings and bringing and returning the patients from the workshop. However, this requirement, irrespective of the errors made in the various job descriptions, was effectively removed whilst the claimant was on sick leave by Mrs Fereday Smith and Mr Hunter.

94. Mr Shepherd submits that the claimant was never put at a disadvantage because by the time the duty arose, namely after the end of May 2011 the claimant was not at work, never returned and therefore could not be put at a substantial disadvantage. We do not accept this submission. Medical evidence was clear that if the claimant was required to go onto the ward, it could trigger a phobic reaction. The fact that Mr Brangwyn was not at work does not mean that such a PCP could not put him at a substantial disadvantage. He was off work with work-related stress, and part of that related to the ongoing requirement that he attended on the ward and his fear of doing so. Whilst the PCP remained as it was, the claimant was unable to return to work, as the occupational health reports show, until the workplace issues were resolved – namely [by] the claimant being informed that he would not have to go onto the ward. And that is where the nub of this case is.

95. Our objective view is that the respondent's managers, through the grievance process, had removed the need for Mr Brangwyn to go on the wards. Unfortunately, the job descriptions produced did not adequately reflect what had been agreed to in the grievance process. The result of this was that, despite what he was being told about the grievance outcomes, Mr Brangwyn continued to hold onto the perception that he would be required to go onto the wards and could end up doing ward work. In colloquial language, he saw the limited requirements to go onto the ward as the thin end of the wedge and did not accept, because of what was put in the job descriptions, that anything had changed. It is very unfortunate that errors appear to have been made in the making of amendments to the job descriptions.

96. However, it seems to the tribunal that there is some overlap between the imposition, or otherwise, of the PCP and whether the respondent made reasonable adjustments. Was the removal of the requirement to go onto the ward the end of the PCP being applied, or an adjustment preventing the disadvantage to the claimant? Up until Mrs Fereday Smith's recommendations, we accept that the PCP that he had to go onto the wards, albeit in a limited way, did apply to the claimant.

What steps was it reasonable for the respondent to take and did they unreasonably fail to take those steps?

97. Mrs Davies submits that the appropriate reasonable adjustment would have been to amend the claimant's job description so he could not be required to go onto the wards.

98. As we have stated above, irrespective of what the job descriptions said, Mrs Fereday Smith and Mr Hunter had made recommendations that Mr Brangwyn would not be required to go onto the wards. Mr Brangwyn himself had been happy with the outcome of his grievance from Mrs Fereday Smith in relation to the relevant matters; until he saw the job description which followed it. The job descriptions, as we have already stated could have been better handled in respect of how the recommendations of the various grievance outcomes were reflected in them. But the fact is that the respondent did agree to the claimant either not having to attend the meetings or if he did do so that the meetings would be held off the ward (Mrs Howell, Mrs Fereday Smith and Mr Hunter recommendations).

99. It was only at the initial stage with Ms Cross that the claimant was required to attend those meetings on the ward and this pre-dated the respondent's knowledge of his phobia and its effects on him.

100. Mrs Fereday Smith agreed that Mr Brangwyn did not have to collect the patients from their bedsides but simply to support their collection and return to the wards. The fact is that the respondent's managers, whatever recommendations found their way into the job description or not, did go to some lengths to avoid the need for Mr Brangwyn to attend on the ward.

101 The tribunal concludes that it would not have been a reasonable adjustment that the claimant would never be required to go onto the ward as a whole. On the basis of what the managers knew at the time from Mr Brangwyn himself, going into the ward office or collecting patients from the waiting areas was not a problem. A reasonable adjustment would have been to ensure that Mr Brangwyn did not have to go into those parts of the ward where he may have seen things which triggered his phobic reaction, namely the bed bays and areas proximate to them.

102. The important thing is what was finally going to be in place when the claimant was fit to return to work. In JD6 he would have to attend the multi disciplinary team meetings once a week but the recommendation was that this should not be held on the ward. JD6 does not state "on the ward". The bottom line was that the respondent, for service provision purposes, could not guarantee that the claimant would never have to go onto any part of the ward and in fact he himself at various stages during the grievance process accepted that he did not have a problem with some parts of the ward, such as the office and the waiting area. It was the bed bay area which caused him difficulties because of what he might see there. By the time the grievance process had been concluded, the claimant would never be required to use a hoist, attend meetings in any part of the ward and only needed to support the collection and return of patients to the ward. He had done this previously, without difficulty, by collecting and returning patients to the waiting areas.

103. In light of the service that the respondent had to provide to its patients, the tribunal concludes that they went as far as was reasonable in balancing the provision of therapeutic services to those patients with the needs of the claimant and so complied with the duty to make reasonable adjustments when it arose. Until Mr Brangwyn could return to work and attend a workplace assessment, it is not clear what would have happened in practice. However, the tribunal thinks it highly unlikely that any of Mr Brangwyn's managers would have gone against the clear recommendations of very senior managers and required him to go to those parts of the ward which would have triggered a phobic reaction. The purpose of a reasonable adjustment is to enable a person with disabilities to work, or to continue working. In the light of that, the practical results of the grievance recommendations and what was agreed to would have been that the claimant would not have been required to go onto the parts of the ward where he might have seen or heard matters which could trigger a phobic response.

116. [T]he claimant viewed the situation very much from the perspective that, irrespective of what senior managers were telling him, his job descriptions meant that he would have to do ward work. This perception was not a justified one. We are aware of how ill he had become during the grievance process. The claimant's viewpoint was focussed entirely on what was in the job descriptions, rather than the actual recommendations of senior managers throughout the grievance procedure.

117. The tribunal does criticise the respondents for the failings in not amending the various job descriptions to accurately reflect the clear recommendations from the grievance stages. But as we have pointed out, the job descriptions were not in a vacuum. They have to be seen in the light of the recommendations made. For example, had the claimant returned to work and been required to do something on the ward which a senior manager had agreed he did not have to do, we consider it highly unlikely, as has been put to us, that he would have faced disciplinary action. These recommendations were well documented. We do not conclude that because an adjustment was not expressly put into the job description (or a requirement had not been removed), that it had not been agreed to, or would not have been implemented when the claimant returned to work."

Proceedings in the Employment Appeal Tribunal

23. Notice of appeal to the EAT on 4 grounds was given on 12 February 2015. The appeal was originally rejected on the paper sift but at a Rule 3 (10) hearing the President, Langstaff J, allowed a full appeal to proceed on two grounds.

24. The first was that the job description itself was a PCP applied to Mr Brangwyn which caused his phobic anxiety and thus subjected him to a substantial disadvantage. The reasonable adjustment required to remove that disadvantage was to follow the recommendations made by managers and amend the offensive requirements in the job description.

25. Langstaff J rejected that ground of appeal and accepted the submission for the Respondent that the ET had not been invited to look at the job descriptions separately from the history of discussions with management. The job description was not put forward as a PCP in its own right in the list of issues to be decided by the ET, nor was it one of the three aspects of the PCP put forward in counsel's submissions to the ET (their paragraph 87). In this case, said the President, "the question was whether there was a requirement on the claimant to go on to medical wards; it is not whether there was a job description that might reasonably give him the sense that he could be asked to do so".

26. The second ground of appeal argued in the EAT was that the ET failed to give adequate reasons for its rejection of the reasonable adjustments claim and/or that its findings in that respect were perverse. Langstaff J rejected this ground too.

27. The Claimant applied for permission to appeal to this court. This was first considered on the papers by Lewison LJ who refused permission to appeal on 5 January 2017. The Claimant renewed the application to an oral hearing which came before Gloster LJ on 17 October 2017. She granted permission to appeal on two grounds. Ground 1 was that "the EAT erred by accepting it was not an error for the ET to have taken a holistic approach to the job descriptions and conversations with managers in regard to identifying the PCP". Gloster LJ said:-

"With some considerable hesitation I am persuaded that there is a real argument here that the Tribunal failed to apply the test, and took a holistic approach which had the result of eliding the various elements and that….. the Tribunal is not required to stick slavishly to the parties' description of the PCP."

28. She also held that there was a realistic argument that the ET approached the matter incorrectly on the basis of saying "oh well, it does not matter what the PCP said because it was unlikely that the respondent was going to apply the requirements in the PCP". Ms Keogh had submitted that a PCP does not need to be enforced in order to cause disadvantage see SSWP v Higgins [2014] ICR 341.

29. Ground 2 was that the EAT erred in law by accepting the ET's conclusion that the Respondent had not failed in its duty to implement reasonable adjustments when in fact the Respondent had failed to take steps that would prevent the substantial disadvantage, thus allowing the claimant to return to work. Gloster LJ said that she was persuaded that this too was arguable. She refused permission to appeal on a proposed third ground.

The arguments before us

Ground 1

30. The principal ground of appeal is that it was an error by the ET not to treat the requirement in various editions of the job description to go onto the wards as a PCP in themselves, separately from the issue of whether the Appellant was in fact to go onto the wards (and if so to what extent).

31. As I have already noted, the ET noted at para 87 of their judgment the submission of Ms Davies on behalf of Mr Brangwyn that an appropriate and reasonable adjustment would have been "to amend the claimant's job description so that he could not be required to go on to the wards". They made findings about the three elements of the PCP as put forward by counsel as follows:-

i) Mr Brangwyn was never required to handle patients.

ii) By the time the grievance process had concluded it was clear that he would not be required to attend MDT meetings in any part of the ward; and certainly not in those parts of the ward where he might have seen things which triggered his phobic reaction, namely the bed bays and the areas next to them.

iii) He would be required to collect patients from and return patients to the ward, which he had done previously without difficulty by collecting and returning patients from and to the waiting areas.

32. The case is now put, as it was before the EAT, on the basis that the contents of the job description were themselves a PCP which, even while the Appellant was off work, caused him substantial disadvantage by creating serious anxiety because of his perception that he might be required to collect patients from their beds on medical wards (or even to use a hoist to lift them out of bed); and that if the job description had been amended he would have returned to work. I agree with Langstaff J that this does not appear to be the way the case was argued before the Employment Tribunal. The PCP relied on at every stage was one "which required the Appellant to go onto medical wards". It was not one "which was perceived by the Appellant as requiring him to go on to medical wards".

33. As Mummery LJ said in Parekh v London Borough of Brent [2012] EWCA Civ 1630 at paragraph 31:-

"A list of issues is a useful case management tool developed by the Tribunal to bring some semblance of order, structure ana clarity to proceedings in which the requirement of formal pleadings are minimal. The list is usually the agreed outcome of discussions between the parties or their representative sand the Employment Judge. If the list of issues is agreed, then that will, as a general rule, limit the issues at the substantive hearing to those in the list: see Land Rover v Short (EAT 6 October 2011 at [30]-[33]. As the ET that conducts the hearing is bound to ensure that the case is clearly and efficiently presented it is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence…"

34. If counsel for the Appellant had expressly raised the argument now put by Ms Keogh before the Employment Tribunal at the outset of the hearing, I have no doubt that the Tribunal would have given permission to amend the list of issues to allow it to be raised explicitly, but that is not what happened. I therefore agree with Langstaff J that it would be wrong to decide the case now on a different basis from that which was argued before the ET.

35. However, in deference to Ms Keogh's sustained and forceful submissions I should say that in my judgment it is not an argument which would or should have succeeded on the facts of this case. Plainly a clause in a contract of employment or a job description listing duties to be carried out by the employee is capable of being a PCP. But here, as the ET accepted, the Appellant was instructed that whatever the standard job description might say he would not be required to go onto the bed areas of medical wards to collect or return patients, still less to lift them, which he had never done at any stage: see paragraphs 88-90 of the judgment of the ET, quoted above.

36. Ms Keogh relies on SSWP v Higgins [2014] ICR 341. In that case the Claimant, who was disabled due to a heart condition, and had been absent from work for six months, was offered a phased 13 week return to work. When he said he was not prepared to go back to work without his request for a longer period of part time work being agree, he was dismissed The ET's decision upholding the claim of failure to make reasonable adjustments was set aside by the ET on the grounds of inadequate findings and remitted for rehearing, but Judge Richardson observed at paragraph 39 of the judgment of the EAT that s.20(3) of the 2010 Act "does not require a PCP to be enforced before it can cause disadvantage – indeed, in contradistinction to s.19(1) (which concerns indirect discrimination) it does not require the PCP to be applied to the disabled person".

37. I have no doubt that Higgins was correctly decided, but it does not assist the present Appellant. The employers were indicating that the PCP requiring Mr Higgins to work his full contractual hours was going to be reapplied at the end of 13 weeks. The case was not one of a perceived requirement but an actual one, albeit with a delay of 13 weeks before it would take effect.

38. In United First Partners Research v Carreras [2018] EWCA Civ 323 the Claimant was an analyst with a brokerage and research firm who was in "a post in which he was expected though not contractually required to work very long hours including evenings". Following a cycling accident in which he was severely affected he returned to work, initially for no more than 8 hours a day. It was held in the EAT and in this court that a PCP may in certain contexts be constituted by an expectation or strong form of request falling short of compulsion. But it does not support the argument that a perception by an employee that, whatever assurances or instructions have been given in his particular case, he might nevertheless be required to carry out a task listed in his written job description, amounts to a PCP.

39. The ET were correct to view the interactions between the employers and Mr Brangwyn as a whole. From the time when the employers became aware that Mr Brangwyn had a disability they made it clear to him that it would not be part of his duties to collect patients from their beds or return them to their beds, still less to use a hoist to lift them out of their beds. They did not, therefore, impose a PCP which in any sense required or would in the future require the Appellant to do any of these things.

40. Ms Keogh emphasised that an ET should, in accordance with the guidance given in Environment Agency v Rowan [2008] IRLR 21 at para 27 and in Higgins at para 29 deal with the issues in a reasonable adjustments case in sequence. I agree with this, but the difficulty for the appellant is that if there was no PCP requiring the Appellant to go onto medical wards, the claim falls at the first fence. The questions of substantial disadvantage and reasonable adjustments never arise. It is deplorable that the employers kept issuing job descriptions which did not accurately reflect what had been agreed or accepted by them that the Appellant would be required to do. It should have been practicable for them to issue an accurate document or write a side letter amending it, and the Tribunal were rightly critical of them for their failure to do so. But these criticisms are not sufficient to establish the Appellant's case.

Ground 2

41. This argues that the ET were bound to find that a reasonable adjustment would have been to say that the Appellant would never have to go onto the ward at all: that its conclusion to the contrary was perverse; alternatively, that its reasoning is so inadequate that the conclusion cannot stand. Perversity arguments are extremely difficult to sustain. Questions of reasonableness of an employer's conduct are almost invariably issues of fact for the employment tribunal.

42. The critical period on this issue begins in May 2011, which was the first time the Respondent became aware that the Appellant suffered from a disability. The ET found that he was never in fact required after May 2011 to go into the bed bay areas of the ward. They found also that it would not have been reasonable to amend his job description or the substance of his duties so that he would never have to collect patients from, nor return them to, the waiting areas of the ward. These are findings of fact which in my view are unappealable.

43. For these reasons I would dismiss the appeal.

Lord Justice Flaux:

44. I agree.

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