Appeal No. UKEAT/0581/12/MC
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
10 May 2013
Before
THE HONOURABLE MR JUSTICE
MITTING
MS P TATLOW
MR B M WARMAN
THE
COMMISSIONERS FOR HER MAJESTY’S REVENUE & CUSTOMS APPELLANT
MRS
J WHITELEY RESPONDENT
Transcript of Proceedings
JUDGMENT
THE HONOURABLE MR JUSTICE MITTING
1.
Mrs Whiteley, who we shall call the employee, commenced employment
with HMRC, who we shall call the employer, on 23 October 1978. She still
works for them. She suffers from asthma. Over the course of just over
5½ years from January 2005 until September 2010 she was absent from
work due to sickness on 54 days. All but 13 days of her periods of
absence were due to acute upper respiratory tract infections.
2.
The employers had a policy of subjecting to consideration absences of
more than ten days due to ill health in a rolling year up to the date of
consideration. In 2010 the Employers had cause to consider the position of the
employee. She had been absent from work for 15 days up to and including
15 October 2010; 1 due to a condition which was nothing to do with upper
respiratory tract infection and 14 days due to viral infections and a chest
infection.
3.
The employer required the employee to keep in touch during periods of
absence due to ill health and took careful notes of the symptoms of which she
complained. There were references in those notes in respect of two of the
periods of absence of the Claimant taking steroids and on all three of taking
antibiotics. The periods of absence were five days, four days and five days
respectively.
4.
If, on consideration, the employer considered that the periods of
absence due to ill health exceeded the so‑called consideration point of
more than ten days, the employee could be subjected to disciplinary processes
adverse to her interest, beginning with warnings and leading eventually and in
due course to potential dismissal. Nothing of that kind happened here, apart
from the fact that a warning was issued which gave rise to no long‑term
consequence so far because, following the warning, the employee was not absent
from work due to illness at all.
5.
The employee complained to the Employment Tribunal that the employer had
failed to make proper adjustments under s.20 of the Equality Act 2010 to
avoid the disadvantage caused to her resulting from the disability from which
she suffered, namely asthma. At the time when the employer’s decision was
taken it had no medical evidence. All it had were the notes of what she had
reported about her condition during the days of her absence. The employer,
seeing that there were 15 days of absence in the rolling year, made an
allowance for that of 3 days out of the 15, taking the total period of
absence which would be considered down to 12, 3 days more than the
consideration point.
6.
It was common ground before the Tribunal that the action which the employer
had taken did amount to a detriment so that if that detriment resulted from the
employer’s failure to make a reasonable adjustment on account of the employee’s
absence then her claim would be made out. The Employment Tribunal considered
issues of liability only.
7.
At the date on which it considered the case, there was some medical
evidence. The employee’s union had obtained, in response to targeted
questions, a report from Mr Collard of November 2011, an Advanced
Nurse Practitioner at the Claimant’s general practice. The questions posed
were as follows:
“We would like you to confirm that:—
·
with Jill Whiteley’s underlying medical condition (Asthma)
that when she contracts a respiratory illness (be it a common cold, a virus or
flu, etc) it would not be unexpected that her asthma would exacerbate that
illness.
·
that, this, in turn, could prevent a return to work earlier than
otherwise might be.
·
given Jill’s medical history, that in the 6 month period up
to and including October 2010 her absence from work totalling 14 days
(5 in April, 4 in September and 5 in October) would not be perceived as
excessive.
·
In periods when Jill is suffering bouts of illness that are
respiratory related that absences of say 15 days per annum would not be
unexpected or excessive.”
8.
Mr Collard’s response, having confirmed that the employee suffered
from asthma, which was managed with a combination of long‑acting inhaler
and short‑acting reliever inhaler taken as required stated as follows:
“[…] People with asthma frequently find that common viral
infections (e.g. the ‘common cold’, flu, etc) make their asthma worse. This
worsening may be fairly mild, requiring an increase in their inhaler use, or it
may be more severe, requiring a course of steroids. They are also more prone
to chest infections requiring antibiotics. These exacerbations generally cause
increased shortness of breath, cough and wheeze, especially on exertion. It is
not uncommon to need time off work during exacerbations, which are generally
more common in the winter months, but may also occur when pollen counts are
high. Following an exacerbation it takes time for the inflammation to settle
and this may lead to a longer recovery period.
I note that between April and October 2010
Mrs Whiteley required 3 courses of antibiotics and two short courses of
steroids for asthma exacerbations. This is not an uncommon pattern. It is
generally quoted that we all suffer about 6-8 viral illnesses each year, and
although some of these will be mild and easily manageable, a few could be
expected to cause exacerbations requiring further treatment and a few days away
from work. An absence of a few days occurring 3 or 4 times over a year would
be typical.”
9.
On one view, the last paragraph was ambiguous in that it might be taken
to refer to periods of absence that would be experienced by those who did not
suffer from asthma, but that is not a natural reading of the paragraph and we
do not understand it to have caused any relevant misunderstanding before the
Tribunal. What Mr Collard was saying in his final paragraph was that
whereas an ordinary person might suffer six to eight viral illnesses each year,
in the case of someone who suffered from asthma, some of those would cause
exacerbations which might well cause absences of a few days occurring three or
four times a year.
10.
What Mr Collard did not state, however, in any part of his report
was that asthma sufferers were more susceptible to colds, flu and viral
infections or to chest infections. In other words, he was not saying that an
asthma sufferer would suffer more such infections or would suffer such
infections more frequently than would a person who did not suffer from asthma.
11.
In paragraph 38 of their determination, the Employment Tribunal set
out their conclusions on Mr Collard’s report:
“In our judgement, that letter sets out important information.
We do not think, as Mr Branchflower suggested, that it is in any way
unclear as to its meaning. Looked at generally, we conclude that the letter is
strong evidence that an asthmatic person is far more susceptible to a viral
infection than is a non‑asthmatic person, that an asthmatic person is
more prone to chest infections and that an absence of a few days, over three or
four times a year, would be typical for a person in the position of this
Claimant.”
In that passage only the last part beginning “over three or four
times a year” was correct. What the Tribunal appear to have found in the
earlier part of paragraph 38 is that the employee’s asthmatic condition
made her more susceptible to suffering relevant infections. That is not a
permissible reading of what Mr Collard said.
12.
It had a consequence. The employers were contending that their policy
of making, as it was put, an “apportionment” - more easily understood as an
allowance in respect of a condition such as asthma, which interacted with other
conditions - was the appropriate method of dealing with the employee’s
disability. The Tribunal, in paragraph 40 of its determination, found
otherwise:
“[…] Had that information been available (as it should have
been), we consider that the Respondent would inevitably have concluded that
these three absences were directly related to the Claimant’s asthma.
Accordingly, we reject the apportionment approach for which the Respondent
argued.”
What the Tribunal appear to find there is that because, in their
view, an asthma suffer, on the evidence, would be more susceptible to relevant
infections, and because this employee had suffered the relevant infections, so
the periods of absence were “directly related” to her condition of asthma.
That, with respect to the Tribunal, was not a permissible finding.
13.
Mr Weiss, for the employee, submits that despite that error of
approach, the Tribunal nonetheless were entitled to find, and did find, that
Mr Collard’s evidence established that a period of absence of a few days
occurring three or four times a year would be typical for an asthma sufferer
and so would explain the three periods of absence taken into account by the employer.
If that had been the approach of the Tribunal, then it would have been
sustainable. It would not have been necessarily the only approach that an
employer or the Tribunal might take.
14.
There are, in principle, at least two possible approaches to making
allowances for absences caused by a disability that interacts with other
ordinary ailments. One is to look in detail and with care and, if necessary,
with expert evidence at the periods of absence under review and to attempt to
analyse with precision what was attributable to disability and what was not.
The alternative approach, which we anticipate will be of greater attraction to
an employer, is to ask and answer with proper information the question: what
sort of periods of absence would someone suffering from the disability
reasonably be expected to have over the course of an average year due to her
disability?
15.
Accordingly, if the Tribunal had taken Mr Collard’s conclusion that
periods of absence of a few days three or four times a year were to be expected
for an asthma sufferer and applied it to the 15 days under consideration
in the relevant year in the case of this employee, that approach would have
been permissible. What was not permissible was to adopt the route that the
Tribunal did of misunderstanding Mr Collard’s report and then wholly
discounting, on the basis of their misunderstanding, the relevant periods of
absence.
16.
In its concluding remarks, the Tribunal appears to have expressed the
opinion that what it referred to as the “apportionment method” adopted by the employer
was not appropriate in the case of this employee and that what should have
happened is that her periods of absence over the 5 or 5½ years up to
October 2010 should have been considered, and only if that led to the
conclusion that her periods of absence were unacceptably long should any
decision adverse to her have been taken. That seems to us to be, with respect
to the Tribunal, a leap too far and to substitute for, what was, in principle,
a proper approach to periods of absence for an asthma sufferer, their own
preferred approach.
17.
We are driven, unfortunately, to the conclusion that the basic error of
analysis of the Tribunal led to a conclusion that is not sustainable. In may
well be that analysing the same material, or material that may supplement it, a
fresh Tribunal will reach the same conclusion as this Tribunal, namely, that
the employee was subjected to a detriment because of the employer’s failure to
take such steps as were reasonable to avoid the disadvantage caused to her by
her disability. If that conclusion is reached it must be reached on a properly
reasoned basis.
18.
We are, in the light of the errors that we have identified, driven to
the conclusion that this case must be remitted to an Employment Tribunal to
consider afresh. We have considered whether or not it should be remitted to
the original Tribunal and have concluded that it should be remitted to a fresh
Tribunal to decide again. We do so because of the importance of the case not
only to this Claimant, but also to the employer and to the approach which the employer
has taken to disability of this kind.
19.
Accordingly, and for those reasons, this appeal is allowed and the case
will be remitted for rehearing by a freshly constituted Tribunal.
