Abertawe Bro Morgannwg University Local Health Board v Morgan, Court of Appeal - Civil Division, March 28, 2018, [2018] EWCA Civ 640

Issuing Organization:Civil Division
Actores:Abertawe Bro Morgannwg University Local Health Board v Morgan
Resolution Date:March 28, 2018
 
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Case No: A2/2016/1295

Neutral Citation Number: [2018] EWCA Civ 640

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

HIS HONOUR JUDGE SHANKS

UKEAT/0320/15/DM

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/03/2018

Before:

LORD JUSTICE BEAN

and

LORD JUSTICE LEGGATT

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Between:

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Julian Allsop (instructed by Hugh James Solicitors) for the Appellant

Rachel Crasnow QC (instructed by Royal College of Nursing) for the Respondent

Hearing dates: 14 February 2018

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JudgmentLORD JUSTICE LEGGATT:

  1. Almost six years after this employment claim was begun, questions are raised on this appeal about the effect of section 123 of the Equality Act 2010 and whether the employment tribunal was entitled to find that it was just and equitable to extend the time under that section for bringing proceedings.

    Factual background

  2. The claimant, Ms Annie Morgan, commenced employment with the Abertawe Bro Morgannwg University Local Health Board (the ``Board'') in January 2007 as a psychiatric nurse therapist. For many years the claimant has suffered from a depressive illness, though the severity of her illness has fluctuated and her symptoms have for long periods been effectively controlled by medication. Because of her illness, the claimant was absent from work from 17 July 2010 (apart from two days in July 2011) until she was dismissed by the Board on 15 December 2011. It is not in dispute that at all relevant times as a result of her illness the claimant was a disabled person within the meaning of section 6 of the Equality Act 2010.

    History of the proceedings

  3. On 14 March 2012 the claimant began proceedings before an employment tribunal making claims of discrimination on the grounds of disability and unfair dismissal. In a judgment given on 28 March 2013, the tribunal dismissed certain claims including the claim of unfair dismissal but upheld other claims, two of which remain relevant for the purpose of this appeal. First, the tribunal found that the claimant had been subjected to harassment relating to her disability by the Board's HR advisor, Ms Laura Keighan. This harassment consisted in (a) laughing when the claimant tried to talk about her rights as a disabled person at a meeting to review her long-term sickness on 8 February 2011, and (b) ignoring and failing to investigate a grievance raised by the claimant making allegations of bullying and other mistreatment. Second, the tribunal found that the Board had a duty under section 20 of the Equality Act 2010 to make reasonable adjustments for the claimant's disability by redeploying her to another role and that the Board failed to comply with this duty. In relation to these claims (and others which were upheld), the employment tribunal found that it was just and equitable to allow the claims to be brought after the end of the three month period specified in section 123(1) of the Equality Act.

  4. The Board appealed to the Employment Appeal Tribunal, which by an order dated 18 February 2014 allowed the appeal in part. In particular, Mr Justice Langstaff, giving the judgment of the EAT, found that the employment tribunal had misunderstood a letter written by an occupational health doctor, Dr Tidley, dated 15 August 2011 and that, properly understood, the letter demonstrated that, when she was assessed by Dr Tidley on 9 August 2011, the claimant was unfit for work in any capacity. That remained the position at the time of the claimant's dismissal. Accordingly, in so far as it related to the period from August 2011, the claim based on a failure to make adjustments could not be sustained. The EAT allowed the appeal on this issue and remitted it to the employment tribunal to decide whether or not the claim was well-founded in relation to the period between April and August 2011.

  5. The EAT also found that, in exercising its discretion to extend time under section 123 of the Equality Act, the employment tribunal had failed to consider each claim separately, had not identified or taken account of the reasons why the claimant had failed to bring each claim in time or sooner than she did, and had taken into account an erroneous perception of the strength of the reasonable adjustments claim as a result of the tribunal's misreading of Dr Tidley's report. Accordingly, the question whether it was just and equitable to extend time in respect of each relevant claim was also remitted to the tribunal for reconsideration.

  6. The matters remitted to the employment tribunal were reconsidered at a further hearing (though, in accordance with the EAT's directions, no new evidence was received). In a judgment promulgated on 20 March 2015, the employment tribunal found that the claim based on a failure to make adjustments, although now confined to the period from April to August 2011, was well-founded and that it was just and equitable to extend the time for bringing that claim and also the claim of harassment by Ms Keighan.

  7. The Board again appealed to the Employment Appeal Tribunal. In a judgment handed down on 8 March 2016, His Honour Judge Shanks (sitting alone) dismissed the appeal. The Board then applied for, and was granted, permission to pursue a further appeal to this court, on which it has re-argued the same grounds. For the reasons which follow, none of those grounds in my view has merit.

    Ground 1: the reasonable adjustments claim

  8. The first ground of appeal is, in essence, that the employment tribunal's conclusion that the reasonable adjustments claim is well-founded is inconsistent with a finding made by the tribunal that the time for bringing the claim began to run ``by no later than the beginning of August 2011''. It was argued by Mr Allsop for the Board that the logical consequence of that finding is that there was no breach of the duty to make reasonable adjustments and that the tribunal should therefore have dismissed the claim.

  9. As set out in section 20 of the Equality Act, the duty to make reasonable adjustments for disabled persons comprises three requirements, of which the first is relevant for present purposes. This is a requirement:

    ``where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.''

    In its second judgment the employment tribunal found that the disadvantage to the claimant of being unable to work in her existing role could have been overcome by offering her a different role and that, on the balance of probabilities, there were other suitable roles available during the period from April to August 2011 which the Board could have offered the claimant. The tribunal found that in these circumstances there had been a failure by the Board to comply with its duty under section 20 of the Equality Act.

  10. Section 123 of the Equality Act, which specifies time limits for bringing employment claims, provides so far as relevant that:

    ``(1) ... proceedings on a complaint ... may not be brought after the end of--

    (a) the period of 3 months starting with the date of the act to which the complaint relates, or

    (b) such other period as the employment tribunal thinks just and equitable.

    ...

    (3) For the purposes of this section--

    (a) conduct extending over a period is to be treated as done at the end of the period;

    (b) failure to do something is...

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