Lancashire Care NHS Foundation Trust v. Reilly, Court of Appeal - United Kingdom Employment Appeal Tribunal, April 27, 2010, [2010] UKEAT 0254_09_2704

Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Lancashire Care NHS Foundation Trust v. Reilly
Resolution Date:April 27, 2010
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Appeal No. UKEAT/0254/09/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 September 2009

and 22 January 2010

Judgment handed down on 27 April 2010

.

Before

HIS HONOUR JUDGE PUGSLEY

MS G MILLS CBE

MISS S M WILSON CBE

LANCASHIRE CARE NHS FOUNDATION TRUST APPELLANT

MS S REILLY RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

|For the Appellant |MS RACHEL WEDDERSPOON |

| |(of Counsel) |

| |Instructed by: |

| |Messrs Hempsons Solicitors |

| |Portland Tower |

| |Portland Street |

| |Manchester |

| |Lancashire M1 3LF |

|For the Respondent |MR JOHN MACKENZIE |

| |(Solicitor) |

| |Messrs John Mackenzie Solicitors |

| |Rotherfield House |

| |7 Fairmile |

| |Henley on Thames |

| |Oxon RG9 2JR |

SUMMARY

DISABILITY DISCRIMINATION: Reasonable adjustments

This was an appeal by the Respondent employers against a finding that they had failed to make reasonable adjustments. After the case was opened in the first hearing it became clear that there was such a conflict between the parties that it was necessary to call for the notes and to ask for the Employment Tribunal to make clear the way in which the matter had been put before the Employment Tribunal. At a subsequent part heard finding the EAT found that any claim that there had been procedural irregularities failed and this was in effect an appeal on perversity.

HIS HONOUR JUDGE PUGSLEY

1. By a decision promulgated on 5 May 2009 the Employment Tribunal sitting at Manchester decided that the Respondents had unlawfully discriminated against the Claimant by failing to comply with its duty to make reasonable adjustments to its provisions, criteria and practices which placed the Claimant, as a disabled person, at a substantial disadvantage in comparison with a person who was not disabled. As a consequence the Claimant was subject to a detriment by not being able to work between the June 2007 and 31March 2008.

2. The decision which ran to some 24 typed pages set out in great detail the Employment Tribunal’s direction as to the relevant law and its findings of fact. The case took some 5 days of hearing and a further day in chambers was spent deciding the issues. The employers appealed from that decision with a plethora of grounds of appeal. In part it alleged there had been certain procedural defects in the way the Tribunal had carried out its task in that it had taken into account matters which were not pleaded. It is claimed that the Tribunal had fallen into the trap of assuming that because an adjustment was possible it was therefore reasonable. Further it is claimed that certain of the conclusions which it had reached were perverse.

3. There was a dispute between the parties as to the notes of evidence which was referred to the President, Mr Justice Underhill. By a letter of 11 September 2009 the President noted that the failure to agree notes was an unfortunate state of affairs and concluded with the observation that the correspondence he had seen does not reflect the co-operative approach which is nowadays expected of litigants.

4. The matter came before us on 23 September 2009. It became apparent to us that such was the chasm between the parties’ recollection that it would prove impossible for us to resolve the issue which was before us without having the Chairman’s notes and without a schedule being drawn up and the Employment Tribunal having the opportunity to comment on these matters which had been raised. This schedule is appended to this judgment.

The Factual Background

5. The Claimant, Ms Sharon O’Reilly, was employed by the Respondent Health Trust as a nursing assistant. The Health Trust has some 2,000 employees. The Claimant’s experience was with working with patients who were mentally ill. The Claimant’s work history is set out in paragraph 8 onwards of the decision, and it suffices to say that, after various changes in her working pattern which reflected wider changes within the NHS, by 2002 the Claimant had ceased to look after outpatients and was instead redeployed to work with service users from the psychiatric inpatients wards and to try to reintegrate them into society by taking them to parks, the gym and other community destinations.

6. Although initially the employer denied that the Claimant was disabled, it was admitted by the time of the hearing that she had a disability; she has severe dyslexia and she had a hiatus hernia and intestinal problems. Because of these symptoms the Claimant was fearful of involving herself with physical restraint of patients and service users. The decision sets out in very considerable detail the chronology of events from the Claimant raising a grievance concerning the impact of the restructuring and reorganisation in November 2004 through to March 2008. In view of the terms of the Employment Tribunal decision it suffices to say that all attempts to resolve the matter failed. Before us the issue has really resolved itself into the findings of the Tribunal that the employer failed to make reasonable adjustments.

7. These findings are comprehensively set out in paragraph 14 onwards of the Tribunal’s decision. The Respondent’s case was that in relation to the dyslexia they had made reasonable adjustments and that no alternative arrangements could have reasonably been made in respect of the Claimant’s gastro intestinal problems and the associated stress.

8. In paragraphs 16 and 17 the Employment Tribunal set out their findings in relation to the dyslexia, and the Tribunal came to the view that the Respondent did accommodate the Claimant’s needs which arose from the dyslexia. The Tribunal...

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