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August 2013 [2013] EqLR 743–862

Equality Law Reportswww.eqlr.co.uk

General Editor: Michael RubensteinEditors: Katherine Tucker and Sarah George

Garrard v Governing Body of the University of London County Court

MM v Secretary of State for Work and Pensions Upper Tribunal

Sobhi v Commissioner of Police of the Metropolis EAT

Redcar and Cleveland Primary Care Trust v Lonsdale EAT

Woodhouse v West North West Homes Leeds Ltd EAT

North v Dumfries and Galloway Council UKSC

Riežniece v Zemkopibas ministrija CJEU

Horváth v Hungary ECHR

Employment Tribunal summaries and transcripts

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http://www.eqlr.co.uk

746 Garrard v Governing Body of the University of London – disability discrimination – education

754 MM v Secretary of State for Work and Pensions – disability discrimination – services and functions

785 Sobhi v Commissioner of Police of the Metropolis – disability discrimination – employment

791 Redcar and Cleveland Primary Care Trust v Lonsdale – disability discrimination – employment

796 Woodhouse v West North West Homes Leeds Ltd – race discrimination – employment

817 North v Dumfries and Galloway Council – equal pay

826 Riežniece v Zemkopibas ministrija – pregnancy and maternity discrimination – sex discrimination

835 Horváth v Hungary – Race discrimination – education

856 Employment Tribunal summaries and transcripts

Williams v Ministry of Defence – sex discrimination

LKR v SP Ltd – sex discrimination

Sykes v Equality and Human Rights Commission – sex discrimination

Alam v Police Federation of England & Wales – race discrimination

Arya v London Borough of Waltham Forest – religion or belief discrimination

Wheeldon v Marstons plc – disability discrimination

Glass v Promotion Line Ltd – disability discrimination

Meah v BG International Ltd – disability discrimination

861 Index

General Editor: Michael [email protected]

Editors: Katherine Tucker and Sarah George

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Equality Law Reports

Michael Rubenstein PublishingPO Box 61064London SE1P 5BQTelephone: 0844 800 1863Email: [email protected]

August 2013

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August 2013 [2013] EqLR 743

This edition of Equality Law Reports covers 16 discrimination cases.

There has been a spate of equal pay decisions, especially in Scotland, about when women can compare themselves to men employed by the same employer at different establishments. The Supreme Court’s decision in North v Dumfries and Galloway Council resolves this, at least for the time being. Giving the only judgment, Lady Hale says that there is only “a low threshold” to be satisfi ed for this purpose. In a case such as this, where women employed in schools sought to compare themselves with male manual workers, the correct question is whether the comparators would continue to enjoy their existing terms and conditions if they were employed at the Claimant’s establishment, however unlikely that would be. The Claimant does not have to establish that there was a “real possibility” or “feasibility” that her chosen comparator might be employed at the same establishment as her. Pointing out that the employer has the opportunity of defeating a claim if the work is not equal or if there is a material factor defence, Lady Hale deprecates use of “the same employment” test “as a way of avoiding the often diffi cult and complex issues which they raise (tempting though this may be for large employers faced with multiple claims such as these). Its function is to establish the terms and conditions with which the comparison is to be made. The object is simply to weed out those cases in which geography plays a signifi cant part in determining what those terms and conditions are.”

What happens when it is necessary to evaluate an employee who is on parental leave, or maternity or paternity leave, and compare their performance for redundancy selection purposes with employees who have not been on leave? In Riežniece v Zemkopības ministrija, some of the criteria the employer used were based on a performance evaluation before the employee went on parental leave, whereas employees at work were assessed by reference to a different time period, with the result that the employee on leave was selected for redundancy. The Court of Justice of the European Union rules that any such assessment must not place the worker

on leave in a less favourable position than workers who did not take leave. Somewhat unusually, it sets out specifi c criteria for a national court to apply. It must “ensure that the assessment encompasses all workers liable to be concerned by the abolishment of the post, that it is based on criteria which are absolutely identical to those applying to workers in active service and that the implementation of those criteria does not involve the physical presence of workers on parental leave.” The fi rst and third criteria are straightforward enough, but the second criterion may be seen as a counsel to perfection. Where there has been a change in the appraisal system, it would seem to mean that the employer must revert to the old system for evaluating everyone in any case where the assessment involves an employee on leave who was appraised under the former scheme, at least where the employee on leave would otherwise be placed at a disadvantage.

The statutory provisions on victimisation provide protection where the claimant is subjected to detrimental treatment because they have done a protected act, such as making an accusation of discrimination. In Martin v Devonshires Solicitors, the EAT held that there are circumstances where an employer has subjected an employee to detrimental treatment, such as dismissal, in response to the employee doing a protected act, “but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable”, so that the employer can say “I am taking action against you not because you have complained of discrimination but because of the way in which you did it.” In Woodhouse v West North West Homes Leeds Ltd, another division of the EAT has very much limited this potential get-out-of-jail-free card. The Claimant was dismissed after lodging a series of internal grievances and unsuccessful tribunal claims of race discrimination. The ET held that the victimisation claim was “on all fours” with Martin, but HH Judge Hand QC says that: “Martin cannot be regarded as some sort of template into which the facts of cases of alleged victimisation can be fi tted. There are no doubt exceptional cases where

CommentaryBy Michael Rubenstein


[2013] EqLR 744 August 2013

protected acts have not caused the dismissal or whatever other detriment is at issue. Martin is an example of such an exceptional case. But we emphasise the word exceptional ... Indeed we think that employment tribunals would do well to start from the proposition that very few cases will be like Martin.”

It is clear that the jurisprudence on the meaning of disability has considerably expanded the scope of the defi nition from that now contained in the Equality Act 2010. This is recognised, and exemplifi ed, by Mr Justice Keith’s decision in the EAT in Sobhi v Commissioner of Police of the Metropolis. He says that in light of cases such as Ring, Chacón Navas and Paterson, despite the statutory language which focuses on normal day-to-day activities, “a person must be regarded as a disabled person if their condition has a substantial and long-term adverse effect on any activity of theirs which relates to their effective participation in professional life.” In this case, the Claimant had dissociative amnesia, which had made her forget that she had a previous conviction when she applied for a new post. It was held that she was a “disabled person” because her condition had a substantial and long-term adverse effect on an activity which related to her active participation in professional life, in this case applying to become a police constable.

On one view, the duty of reasonable adjustment is lawful positive discrimination in favour of disabled people. This is highlighted by the EAT’s decision in Redcar and Cleveland Primary Care Trust v Lonsdale. When the Claimant became disabled, she was redeployed from a band 6 to a band 4 post. A redundancy situation then occurred, but she was not allowed to compete for a new band 6 role because the employer’s policy only allowed her to apply for a post one grade above her then current role. The EAT upholds a fi nding that it would have been a reasonable adjustment to allow the Claimant to compete for that role. As HH Judge Peter Clark points out, it is established law that “sometimes disabled people must be treated more favourably than those who are not disabled”.

The Upper Tribunal (Administrative Appeals Chamber) has ruled in MM v Secretary of State for Work and Pensions that the work capability assessment for entitlement to Employment and Support Allowance (ESA) discriminates against people with mental health problems by causing them substantial disadvantage. There was evidence that claimants with mental health

problems encountered particular diffi culties, which include completing the form ESA50 and a face-to-face assessment. This amounted to a breach of the duty to make reasonable adjustments in relation to the exercise of a public function. The judges were satisfi ed that if the assessors were able to access fresh medical evidence more easily, that would add value to the decision-making process in many cases, but it would not be reasonable to require it in every case of mental health problems because a signifi cant number of claimants would not encounter particular diffi culties. The Upper Tribunal adjourned until later this year the issue of what steps it would be reasonable for the Government to take by way of adjustment to avoid the disadvantage, and it required the DWP to carry out an investigation. However, the Government has indicated its intention to appeal the Upper Tribunal’s judgment.

Jurisdiction over a claim of failure to make a reasonable adjustment for disability is the issue in Garrard v Governing Body of the University of London. The Claimant sought to bring a claim in the County Court that the university and the London Deanery failed to make reasonable adjustments by affording him access to a postgraduate training programme for doctors on a less than full-time basis. However, HH Judge Birtles rules that the training programme provided vocational training. The Equality Act 2010 provides that that falls within the exclusive jurisdiction of the Employment Tribunal, so that the County Court could not hear the claim.

Segregation of Roma in Hungarian schools is the subject of the decision of the European Court of Human Rights in Horváth v Hungary. The ECHR rules that the schooling arrangements made for primary school age pupils, which determined whether they should be educated at a mainstream or remedial school, had an adverse impact on the Roma community. A disproportionate number of Roma were sent to remedial schools and there was systematic misdiagnosis of mental disability. This amounted to indirect discrimination on grounds of ethnic origin in violation of Article 2 of Protocol 1 to the Convention (right to education) read together with Article 14, which the Hungarian Government was unable to justify. It had failed to put in place the necessary safeguards to prevent misdiagnosis. Moreover, importantly, the Human Rights Court says that: “The State has specifi c positive obligations to avoid the perpetuation of past discrimination or discriminative practices disguised in allegedly neutral tests.”


August 2013 [2013] EqLR 745

We also summarise and provide links to eight Employment Tribunal decisions.

● Williams v Ministry of Defence is a successful sex discrimination claim by the highest ranking nurse in the RAF, who was overlooked for promotion in favour of a male doctor. Unusually, the Tribunal upholds claims of both direct and indirect sex discrimination. It draws adverse inferences against the MoD as a result of their “abject failure” to follow the guidance in the statutory employment Code of Practice issued by the Equality and Human Rights Commission. The Tribunal fi nds that the MoD’s selection of a male candidate to go forward in a promotion competition was direct sex discrimination, since on an “objective review” of her appraisals and his, she was the stronger candidate. It also held that the MoD had applied a PCP of preferring a doctor rather than a nurse to be recommended for the post in question, and that that was indirectly discriminatory and unlawful.

● The line between sexual harassment and what the Americans call “affectional disputes” is not always easy to delineate. In LKR v SP Ltd, the Claimant had a long sexual affair with her boss. After this ended, she was dismissed. The Tribunal said that there was no evidence that the dismissal had the purpose of violating the Claimant’s dignity or creating an offensive environment for her. The purpose was to remove the Claimant from the workplace. So far as the effect of the dismissal was concerned, it did not affect the working environment and the Tribunal held that, in the circumstances, “it would be an extreme view to hold that this, of itself, violated her dignity. The consequence would be that any dismissal in these general circumstances, ie after an affair has ended, would be sex harassment. There must, in our view, be something more to convert the dismissal into an act of actionable harassment.”

● In Sykes v Equality and Human Rights Commission, the EHRC is found to have decided not to have renewed the Claimant’s fi xed-term contract because she was pregnant and going to take maternity leave. The Tribunal rejected the EHRC’s submission that Ms Sykes was dismissed for redundancy. It said that it had been given no documentation relating to this. It noted that the Respondent’s approach to the Claimant changed after she told them that she was pregnant.

● Alam v Police Federation of England & Wales is a novel case about the calculation of compensation following a failure to comply with an action recommendation. The key questions identifi ed by the Tribunal are: “If the Respondent had complied with

the recommendation, would the adverse effect on the Claimant of the discrimination or victimisation which has been found have been obviated or at least reduced? ... If so, was that factor refl ected in the award of compensation which was made? ... If so, by what amount, if any, should the award of compensation now be increased?”

● Tribunals have taken a broad approach to the scope of the concept of “belief”, but there are limits, as illustrated by Arya v London Borough of Waltham Forest. The Claimant sought protection for his belief that “the Jewish religion’s philosophical belief in Jews being ‘God’s chosen people’ is at odds with a meritocratic and multicultural society.” The Employment Judge was prepared to accept that this was a “genuinely held” world view that met the test of having a “certain level of cogency, seriousness, cohesion and importance”. The Judge concluded, however, that the Claimant’s belief was “not worthy of respect in a democratic society” and was “incompatible with human dignity”. She said that the Claimant’s belief could be characterised as “both racist and anti-Semitic”.

● Two decisions on the “meaning of disability” are noted this month. In Wheeldon v Marstons, a chef is found to be a disabled person by reason of a nut allergy. The Tribunal points out that there is nothing to exclude an allergy from the scope of the defi nition, and in this case it had a “signifi cant” effect on the Claimant’s day-to-day life.

● In Glass v Promotion Line Ltd, severe atopic eczema is found to be a disability, partly because without the treatment the Claimant received for it, she would on occasions be unable to leave the house at all. That would amount to a substantial adverse effect on her ability to carry out normal day-to-day activities.

● The Tribunal in Meah v BG International Ltd holds that giving an employee a compromise agreement and telling them, without any warning or consultation, that they are to be dismissed as part of a restructuring exercise put an employee with depression at a substantial disadvantage in comparison with persons who were not disabled in that it was more likely to expose her to a risk of psychological distress. According to the Tribunal, it would have been a reasonable adjustment to have made the package and the Claimant’s inclusion in it optional. “Alternatively, it would have been a reasonable adjustment to have entered into a period of consultation with the Claimant before deciding to dismiss her.”

[email protected]


[2013] EqLR 746 Garrard v Governing Body of the University of London: County Ct

Garrard v Governing Body of the University of London

2CL00775

Central London County Court (HH Judge Birtles)

30 January 2013

Disability: education; failure to make reasonable adjustments ● Education: disability

A County Court Judge held that the County Court did not have jurisdiction to consider the Claimant’s claims that the Respondents failed to make reasonable adjustments by affording him access to a postgraduate medical training programme for doctors on a less than full-time basis. HH Judge Birtles held that the relevant training programme provided vocational training and that claims in respect of it came within Part 5 of the Equality Act 2010 over which the Employment Tribunal has exclusive jurisdiction.

The factsNeill Garrard, the Claimant, is a registered medical practitioner. He is disabled. He applied for a place on the Acute Care Common Stem (ACCS) programme. He was refused access for less than full-time training on that programme. He alleged that that refusal amounted to a failure to make reasonable adjustments.

The ACCS is a three-year training programme for doctors who wish to specialise in acute medicine, emergency medicine or anaesthetics. If successful in their application for ACCS training, trainee doctors on the ACCS programme are employed under a contract of employment by the NHS trust at which their training takes place. The fi rst two years of the course consist of generic training in each of the three specialty fi elds and the fi nal year is a specialty-specifi c year. The programme involves extensive “on-the-job” training and supervision and work-based assessments. The recruitment process for the ACCS is carried out through the West Midlands Deanery, which undertakes a long- and short-listing process. The London Deanery, the second Respondent, administers interviews, which are carried out by NHS consultants who are not employed by either of the Respondents.

The Claimant asserted that the London Deanery is responsible for the appointment of postgraduate doctors to core medical vocational training programmes and higher specialty vocational training programmes in hospitals, including the ACCS. He contended that the London Deanery is part of the University of London, which supports the London Deanery in the procurement and delivery of postgraduate continuing medical and vocational training. Furthermore, the Claimant asserted that the governing body of the University of London is a responsible body within s.91 of the Equality Act 2010 (EqA) and that the London Deanery was acting with its authority to carry out the relevant function in respect of training. It was argued, therefore, that the University of London was responsible for the actions of the London Deanery. The Claimant contended that the claim came within Part 6 of the EqA and was one in respect of which the County Court had jurisdiction.

The Defendants issued an application for a declaration that the County Court had no jurisdiction in respect of the claim because the correct forum for the claim was the Employment Tribunal. The Defendants contended that the ACCS involved vocational training and came within Part 5 of the EqA, over which the Employment Tribunal had exclusive jurisdiction. Furthermore, it contended that although the governing body of the University of London was a responsible body of a further or higher educational institution, it did not have power to afford or deny access onto the ACCS, so that s.56(5) of the EqA did not apply.

Section 114 of the EqA affords the County Court jurisdiction to determine a complaint relating to a contravention of Part 6 of the EqA (education). Sections 91–94 of the EqA, within Part 6 of the EqA, prohibit discrimination by, among other bodies, responsible bodies of a further or higher educational institution.

Section 120 of the EqA affords the Employment Tribunal exclusive jurisdiction to determine a complaint relating to Part 5 of the EqA (work). Section 55 of the EqA is within Part 5. It prohibits discrimination by employment service-providers. That term is defi ned in s.56 as follows: “(2) The provision of an employment service includes – (a) the provision of vocational training; (b) the provision of vocational guidance; (c) making arrangements for the provision of vocational training or vocational guidance; (d) the provision of a service for fi nding employment for persons; …

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Garrard v Governing Body of the University of London: County Ct [2013] EqLR 747

(i) an assessment related to the conferment of a relevant qualifi cation within the meaning of s.53 above (except insofar as the assessment is by the qualifi cations body which confers the qualifi cation).

(3) This section does not apply in relation to training or guidance insofar as it is training or guidance in relation to which another provision of this Part applies. …

(5) This section does not apply in relation to training or guidance for students of an institution to which s.91 applies insofar as it is training or guidance to which the governing body of the institution has power to afford access.

(6) “Vocational training” means –(a) training for employment, or (b) work experience (including work experience the duration of which is not agreed until after it begins). …

(8) A reference to training includes a reference to facilities for training.”

DecisionThe County Court Judge granted the Defendant’s application and declared that the County Court had no jurisdiction to consider the Claimant’s claims.

The County Court Judge HELD:(1) The County Court did not have jurisdiction to hear the Claimant’s claim that the Respondents had failed to make reasonable adjustments for his disability when he was refused access for less than full-time training on the Acute Care Common Stem (ACCS) programme, since that programme affords “vocational training” – training for employment or work experience – which falls within the exclusive jurisdiction of the Employment Tribunal.

The ACCS programme is a three-year training course offered to postgraduate doctors wishing to specialise. If successful in their application for the ACCS programme, training doctors are employed by the NHS trust at which their training takes place. The ACCS is an employment service with which the second Respondent is concerned. The programme, which involves extensive on-the-job training and assessment, clearly affords vocational training – ie training for employment as a doctor – to those on it within the meaning of ss.55 and 56 of the EqA, both of which are within Part 5 of the Act and over which Employment Tribunals have exclusive jurisdiction.

Section 56(5) of the EqA, which disapplies ss.55 and 56 in relation to training or guidance for students of an institution to which s.91 of the EqA applies, insofar as it is training or guidance to which the governing body of the institution has power to afford access, had no application in the present case. Section 91 prohibits discrimination against students by a responsible body of a further or higher educational institution. Although the fi rst Respondent is such a body, it did not have power to afford access to the ACCS training programme: it played no part in selecting those trainees offered places on the course which was carried out entirely by the second Respondent, using a standardised selection process devised by another Deanery. Furthermore, the memorandum of agreement which governed the relationship between the Respondents did not allow the fi rst Respondent to interfere in any way with the admissions process to the ACCS course administered by the second Respondent.

Cases referred toFletcher v Blackpool Fylde and Wyre Hospitals NHS Trust [2005] IRLR 689 EAT

AppearancesFor the Claimant: Christopher Loxton, instructed by DH LawFor the Respondent: Jeffrey Jupp, instructed by Beachcroft LLP



HIS HONOUR JUDGE BIRTLES:

Introduction1. This is the judgment following a hearing of the Defendants’ application pursuant to CPR11(1) for a declaration that the County Court has no jurisdiction in respect of this claim because the correct forum for the Claimant’s claim is the Employment Tribunal and that the claim be dismissed with costs to be summarily assessed and paid by the Claimant.

2. The Claimant is represented by Mr Christopher Loxton of Counsel. The Defendant is represented by Mr Jeffrey Jupp of Counsel. I am grateful to both Counsel for their written and oral submissions.

The pleadings3. The Particulars of Claim aver that at all material times the Second Defendant was the body responsible for commissioning and providing postgraduate medi-cal and dental education and training in the London area. Amongst other things it is responsible for the ap-pointment of postgraduate doctors and dentists to core medical vocational training programmes and higher speciality vocational training programmes in hospitals, general practices and dental practices.

4. It is alleged that the London Deanery is part of the University of London which supports the London Deanery in the procurement and delivery of · postgrad-uate continuing medical and dental education and vo-cational training. The vocational training activities of the London Deanery are mainly funded by the NHS through the Multiple Professional Education and train-ing budget.

5. The Claimant avers that the Governing Body of the University of London is the responsible body with-in the meaning of Section g1 of the Equality Act 2010 and the London Deanery was acting with the authority of the Governing Body of the University of London which has designated it to carry out the relevant func-tion in respect of medical training. It is therefore al-leged that it is responsible for the actions of the London Deanery.

6. It is not necessary to go into the detail to any great extent but there is no dispute that the Claimant is a disabled person within the meaning of the Equality Act 2010, the EU Framework Directive (EU Counsel Directive 2000/78/EC) and the UN Convention on the Rights of People with Disabilities because he suffers from metastatic left-adrenocortical carcinoma (cancer) having being diagnosed with that condition in September 2008.

7. The Particulars of Claim go on to aver that the Claimant is a registered · medical practitioner and in essence his claim is that there was a failure to make reasonable adjustments for his condition in refusing him access for less than full-time training into the

Acute Care Common Stem (ACCS) which is a three year training course. The nature of the discrimination by the failure to make reasonable adjustments is set out in the Particulars of Claim but that is not an issue which I have to deal with in this judgment.

8. There is no Defence fi led at present because the Defendant issued the application for a declaration in relation to jurisdiction. Suffice it to say that the Defendant denies the charge of discrimination.

The Defendant’s application9. I have set out the application above. It is dated 17th September 2012. On 24th September 2012 Dis-trict Judge Avin gave directions for the fi ling of the Claimant’s evidence because the Defendant had fi led evidence with the application.

10. The Defendant’s evidence consists of a witness statement of Elizabeth Chan dated 17th September 2012 together with exhibit EC1. The Claimant’s evi-dence consists of witness statements by Dr Garrard dated 9th November together with exhibit NG1 and 12th November 2012 together with exhibit NG2. Neither witness was called to give oral evidence.

The material facts11. The London Deanery is a joint arrangement be-tween the University of London and the North London Strategic Health Authority (the “SHA”). It exists pur-suant to a Memorandum of Agreement dated 151 Sep-tember 2004: bundle 8/33-38 together with attach-ments: bundle 8/39-52. The Memorandum of Agreement superseded an earlier agreement of 3151 March 2001. The introduction to the Memorandum of Agreement says this:

“The purpose of this Memorandum of Agreement is to specify the arrangements under which the London Department of Postgraduate Medical and Dental Education, which is a joint responsibility of the University and the SHA, shall be managed.”

12. Under the heading “Purpose of the London Department of Postgraduate Medical and Dental Education” there is the following:

“1. The purpose of the London Department of Post-graduate Medical and Dental Education is to pro-vide an infrastructure to support the Dean Director of Postgraduate Medical and Dental Education for the London Postgraduate Deanery in the purchas-ing and management of high quality and appropri-ate postgraduate and continuing medical and dental education for hospital practice in the case of post-graduate education and for general medical and dental practice in the case of both postgraduate and continuing education, in accordance with the rele-vant NHS and University policies.”

13. There is provision for the appointment of a Dean Director for the London Postgraduate Deanery who holds contracts of appointment with the



University and the NHS on terms to be agreed between the University and the SHA. He/she is accountable to the SHA for the strategic and operational management of NHS funds from the Multi-Professional Education and Training budget. He/she is accountable to the Vice Chancellor of the University for funds allocated from University sources,

“And for ensuring that clinical training is managed in a way that is responsive to the individual needs of those pursuing academic training and research, and for ensuring that the pre-registration training meets the standards laid down by the University and the General Medical Council.”

14. The University is the employer of the staff of the London Deanery. The London Deanery does not have a separate legal personality. In my judgment the proper analysis is that the Deanery is a joint venture between the University and the SHA and therefore an unincor-porated association and its members are the University and the SHA. It follows that the Deanery cannot be sued whereas the University can be sued in its capacity as a member of the unincorporated association although strictly all members of the association ought to be joined if they are to be bound by the result unless repre-sentative proceedings are brought under CPR 19.6. I am not asked to make any decision in this judgment as to whether or not the London Deanery is a proper Defendant. My sole concern is the issue of whether or not the County Court has jurisdiction to hear this claim. The factual provisions relating to the training of doc-tors are set out in Miss Chan’s witness statement para-graphs 6 and 12. In summary, after their undergraduate degree, the training of doctors commences with a two year foundation course. Following the successful pass-ing of this foundation course they must choose a spe-ciality. The ACCS is the three year training programme for doctors who wish to specialise in Acute Medicine, Emergency Medicine or Anaesthetics. If successful in their application for ACCS training, the doctor appoint-ed to the ACCS programme will be employed by the NHS Trust at which their training takes place.

15. The first two years of the ACCS are generic training on the job with usually six months spent in each of Acute Medicine, Emergency Medicine, Anaesthetics and Intensive Care. In the final (third year) the doctor undertakes the speciality specifi c year, again in a hospital employed by the NHS Trust. It is the ACCS three year course which Dr Garrard wished to be accepted for.

16. The process for recruitment to ACCS training is set out in Miss Chan’s witness statement paragraphs 29-31. In summary the position is as follows:(a) all doctors applying for ACCS training apply through the West Midlands Deanery to administer ACCS recruitment nationally;(b) the West Midlands Deanery compile a long-list of applicants for the ACCS programme within the Lon-don Deanery region;

(c) the Claimant’s chosen speciality was Emergency Medicine and he was one of 464 applicants long-listed;(d) a short-listing process was conducted by a panel of NHS consultants to a marking system set by the West Midlands Deanery and the Royal College of Anaesthetics;(e) the cut off score was 30 and above. The Claimant scored 41. He and 272 other candidates were shortlist-ed for Emergency Medicine in London;(f) the Claimant and the other candidates underwent an interview process with four interview stations. The cut-off score was 80. The Claimant scored 86;(g) the Claimant was ranked 132. Only those ranked 88 and above achieved a training place on the ACCS. Only those ranked 1, 4 and 6 obtained a place on the King’s College Hospital training programme;(h) the interviews were carried out by NHS consultants who are not employed by the University or the Lon-don Deanery. The London Deanery merely adminis-ters the process.

17. There are a number of material documents to which I will refer when I discuss the issues.

Jurisdiction18. The relevant parts of the Equality Act 2010 are as follows:

“113 Proceedings(1) Proceedings relating to a contravention of this Act must be brought in accordance with this Part.

(4) This Section is subject to any express provi-sion of this Act conferring jurisdiction on a court or tribunal.

114 Jurisdiction(1) A County Court ... has jurisdiction to determine a claim relating to –

(c) A contravention of Part 6 (education);

120 Jurisdiction(1) An Employment Tribunal has, subject to Sec-tion 121, jurisdiction to determine a complaint re-lating to –

(a) a contravention of Part 5 (work);(b) a contravention of Sections 108, 111 or 112 that relates to Part 5.”

Section 121 has no relevance in this case,

The issues19. Before turning to the issues it seems to me help-ful to set out the other relevant statutory provisions which are to be discussed in this judgment.

20. Part 5 of the Equality Act 2010 is headed “EMPLOYMENT, ETC.” It deals with the more stan-dard forms of employment and particular situations. The Claimant does not suggest that either Defendant is a qualifi cations body within the meaning of Sections 53-54.



21. The Defendant relies on Section 55 of the 2010 Act. The relevant part says this:

“55 Employment service-providers(1) A person (and ‘employment service-provider’) concerned with the provision of an employment service must not discriminate against a person -

(a) in the arrangements the service-provider makes for selecting persons to whom to provide, or to whom to offer to provide, the service;(b) as to the terms on which the service-provider offers to provide the service to that person;(c) by not offering to provide the service to the person.

(2) An employment service-provider (A) must not, in relation to the provision of an employment ser-vice, discriminate against a person (B) -

(a) as to the terms on which A provides the ser-vice to B; (b) by not providing the service to B;(c) by terminating the provision of the service to B; (d) by subjecting B to any other detriment

...

(6) A duty to make reasonable adjustments applies to an employment service-provider, except in rela-tion to the provision of a vocational service.

(7) The duty imposed by Section 29(7)(a) applies to a person concerned with the provision of a vo-cational service; but a failure to comply with that duty in relation to the provision of a vocational service is a contravention of this Part for the pur-poses of Part 9 (enforcement).”

22. Section 56 is the interpretation section for Section 55. Section 56(2) says this:

“(2) The provision of an employment services in-cludes –

(a) the provision of vocational training; (b) the provision of vocational guidance;(c) making arrangements for the provision of vocational training or vocational guidance;(d) the provision of a service for fi nding em-ployment for persons;...

(i) an assessment relating to the confer-ment of a relevant qualifi cation within the meaning of Section 53 above (except inso-far as the assessment is by the qualifi ca-tions body which confers the qualifica-tion).

(3) This section does not apply in relation to train-ing or guidance insofar as it is training or guidance in relation to which another provision of this Part applies.

(5) This section does not apply in relation to train-ing or guidance for students of an institution to which Section 91 applies insofar as it is training or guidance to which the governing body of the insti-tution has power to afford access.

(6) “Vocational training” means –(a) training for employment, or(b) work experience (including work experi-ence the duration of which is not agreed until after it begins).

(8) A reference to training includes a reference to facilities for training.”

23. I accept Mr Jupp’s submissions that the effect of these sections so far as this case is concerned is as follows.

24. First, Section 55(1) defines an “employment service provider” as a person concerned with the pro-vision of an employment service. If the ACCS pro-gramme is an employment service (as defi ned) then the London Deanery is plainly “concerned” with it. Second, Section 56(2) provides that the provision of an employment service includes; the provision of vo-cational training; the provision of vocational guidance; and making arrangements for the provision of voca-tional training or guidance. Third, Section 56(6) de-fi nes vocational training to mean training for employ-ment or work experience. Fourth, Section 56(5) carves out from Sections 55 and 56 training or guidance for students of an institution to which Section 91 applies insofar as it is training or guidance to which the gov-erning body of that institution has the power to afford access. There is no dispute that the University of London is an institution to which Section 94 applies.

The issues25. Although Counsel differed in the way in which they classifi ed the issues I prefer Mr Jupp’s submis-sion that there are three issues for me to decide. I take each one in turn.

Issue 1: Is the ACCS vocational training i.e. is it training for employment or work experience?26. I turn to the evidence.

27. As Miss Chan sets out in detail at paragraphs 22-23 of her witness statement the ACCS programme in-volves extensive on the job training and supervision. It requires comprehensive work based assessments in-cluding:(i) The evaluation of clinical skills;(ii) case based discussions using patient notes; (iii) di-rect observation of a clinical encounter;(iv) assessment of performance; (v) a patient survey;(vi) teaching observations.

The ACCS Core Training Programme curriculant and assessment system I May 2010: bundle 10 pages 189-



214 contains a number of helpful pieces as evidence. The preface at 10/190 says this:

“The purpose of the Acute Care Common Stem (ACCS) programme is to provide trainees with a broad range of knowledge, skills and attitudes so as to be able to: • Assess any acutely ill patient ad commence re-suscitation if necessary.• Diagnose the lease likely underlying problem.• Initiate appropriate investigations. commence appropriate immediate treatment and identify and liaise with the in-patient teams to ensure appro-priate defi nitive care.

Uniquely, the ACCS programme delivers the training and experience needed for this by en-abling the trainee to work and learn in four areas as closely concerned with the acutely ill patient – General Internal Medicine (GIM), Anaesthesia (AN), Intensive Care Medicine (ICM) and Emer-gency Medicine (EM).”

Page 10/190 contains the phrases “the ACCS trainee”, “ACCS training” and “trainers and trainees.”

28. The Executive Summary at bundle 10/197 says this:

“ACCS is a 3 year core training programme that normally follows Foundation Year 2. It is the only core training programme for trainees wishing to enter higher speciality training in Emergency Medicine. It is an alternative core training pro-gramme for trainees wishing to enter higher spe-ciality training in General Internal Medicine (GIM), Acute Internal Medicine (AIM) or anaes-thetics. It will deliver all elements of the speciali-ty specifi c or training curricula, with additional augmented outcomes i.e. competencies beyond those areas covered by GIM and anaesthetics. The fi rst two years are spent rotating through Emer-gency Medicine (EM), General Internal Medicine, Anaesthetics and Intensive Care Medicine (ICM). The third year is spent providing training that will ensure that trainees meet the minimum require-ments for entering into higher speciality training in their parent speciality (EM, GIM/AIM, Anaes-thetics and also ICM). For trainees entering the specialities defi ned by the JRCPTIB the compe-tencies required are defi ned within the General Internal Medicine (2009) curriculum for those following the core medical training programme.

AimThe aim of ACCS training is to provide compe-tent junior doctors able to recognise and manage the sick patient, who can defi ne the nature of the specialist intervention required and who have complimentary special training.

ObjectivesWithin the overall aim, each speciality has a spe-cifi c objective for ACCS training:

• Emergency MedicineTo provide training that delivers the first three years of the CCT in Emergency Medicine in a pre-planned and structured manner.

• General Internal Medicine (Acute)To produce a cohort of trainees with all the compe-tencies delivered in Core Medical Training (CMT) with augmented outcomes and more broadly based experience. For the purpose of this training pro-gramme trainees must obtain signifi cant experience in the acute medical take during the 6 months of medicine as this defi nes the term GIM (Acute).

• AnaestheticsTo produce a cohort of trainees with more broadly based experience than is available solely within the Anaesthetics CCT programme and to allow those who want to obtain a joint CCT in Anaes-thetics and ICM to obtain the complimentary com-petencies in a pre-planned and structured manner.

• Intensive Care Medicine (ICM)To allow trainees who want to obtain a joint CCT in ICM to obtain the competencies of the compli-mentary specialities . in a pre planned and struc-tured manner.”

29. The Executive Summary goes on to refer to the programme itself and to the application process it spe-cifi cally uses the words “trainees” and “training” for those applying for the ACCS course. It is also fair comment that the word “trainees” and “training” is used many times in the document.

30. Mr Loxton refers me to other pages in this doc-ument and especially at 204, 209-210 and 212 where the words “education” or “educational” are used. Thus each trainee must have a nominated educational super-visor to oversee individual learning: 10/204. Section 4.0 is headed “The Delivery of Training and Education”, Section 4.7 refers to clinical knowledge and Section 4.8 refers to formal education. In summa-ry, he submits that each person on the ACCS course has an Educational Supervisor and the course is an ex-acting mix of academic and clinical education and training, which requires examinations to be sat and passed. He submits that the ACCS course provides ed-ucation at a higher level (whether or not in preparation for an examination).

31. Mr Jupp also relies on the GMC publication en-titled “The Trainee Doctor” published by the General Medical Council: 10/228-287. He relies on the use of the word “trainee” in the title and throughout the docu-ment The document clearly. indicates that a trainee (i.e. a doctor undergoing training) is required to un-dertake tasks and care for patients under supervision. They will carry out theatre sessions, ward rounds, and out patient clinics. They are in a working environment (in this case King’s College Hospital). Again, Mr



Loxton would rely on Domain 8 of that document which is headed “Educational Resources and Capacity” and sets out requirements for the proper functioning of the training process.

32. Finally, Mr Jupp relied upon Fletcher v. Blackpool Fylde and Wyre Hospitals NHS Trust and Another [2005] IRLR 689 which ·was a decision of Cox J and two lay members sitting in the Employment Appeal Tribunal. However, the issue in this case was not the issue in that case which concerned midwives who were studying at university for admission to mid-wifery courses, via the Nursing and Midwifery Admissions Service. They were offered places by uni-versities and, on acceptance of their offers, they enter into an agreement with a university of their choice. They were required to complete a number of hours of attendance, comprising theoretical study and practical placement. Pre regulation programmes must consist of 50% theory and 50% practical training, which was ac-cepted to be the appropriate division between the course components before the EAT. At paragraph 11 of the judgment Cox J said this:

“The training must include theoretical and techni-cal instruction and practical and clinical training dispensed under appropriate supervision. Regis-tration cannot be achieved until all the requisite competencies have been signed off. The hospitals do not have any direct legal or fi nancial relation-ship with trainee midwives under the new system. They do not select the students that do work placements with them. Students are allocated by the universities to clinical placements. There are no express contracts of employment in existence between hospitals and trainees and the hospitals do not fund or administer payment of any fi nan-cial support to them.”

33. In those circumstances it is not surprising that the EAT and Counsel accepted that this was vocational training under the Sex Discrimination Act 1975.

34. Apart from the passages relating to “education-al” in the documents referred to above Mr Loxton also referred me to the Claimant’s witness statement at paragraphs 18-23. On this matter I prefer the evidence of Miss Chan. Mr Loxton also referred me to the ex-planatory notes to both Part 5 and Part 6 of the Equality Act 2010. I did not fi nd those explanatory notes of any assistance in their application to the facts of this case.

35. Finally, Mr Loxton referred me to a passage in the Fletcher case at paragraph 28 where Cox J was cit-ing part of the decision of the Employment Tribunal. At paragraph 278 of its judgment the Employment Tribunal posited that it would be possible for a trainee midwife to be in a hybrid position so that she could bring proceedings under the Sex Discrimination Act 1975 under different parts of that Act. Cox J did not express a view on that supposition as it was not neces-sary for her to do so. I can see nothing in the language

of the Equality Act 2010 which supports Mr Loxton’s submission that Dr Garrard would be in a hybrid posi-tion if he was on the three year ACCS course not least because the training is provided (in this case at King’s College Hospital) which is part of the NHS Trust which would employ Dr Garrard under a contract of employment and which would provide extensive on the job training. It is diffi cult to see how it can be any-thing other than vocational training i.e. training for employment as a doctor.

Issue 2: Is the Claimant a student of the University?36. Even if the ACCS programme is vocational training i.e. training for employment then Section 56(5) disapplies at Sections 55-56 of the Equality Act 2010.

“For students of an institution to which Section 91 applies insofar as it is training or guidance to which the governing body of the institution has power to afford access.”

As I have said there is no dispute between the parties that the University of London is an institution to which Section 91 applies.

37. Mr Jupp submits that the word “student” is de-fi ned by Section 94 of the 2001 Act as “A person for whom education is provided by the institution.”

38. Mr Jupp submits that the Claimant was never going to be a student for whom education was provid-ed by the University of London. His application was for a place on the ACCS programme. The ACCS pro-gramme is not education provided by the University. It is training provided by an independent NHS Trust and is managed by the Intercollegiate ACCS Training Committee: see the witness statement of Miss Chan paragraphs 21(c) and 28. See also the ACCS Core Training Programme at paragraphs 2.2-2.3 which make it clear that the Clinical Directorates for each speciality within a hospital are responsible for deliver-ing in-service training in accordance with. principles adopted by the GMC, the ICACCST, the Postgraduate Dean and the ACCS Training Committee. The London Deanery (not the University of London) administers the course and the recruitment to it but it does not pro-vide the course.

39. Mr Loxton’s response to this submission is tied up with issue 3 and before turning to Mr Loxton’s sub-missions I therefore consider issue 3.

Issue 3: Did the Governing Body of the University have the power to afford access to the ACCS course?40. Mr Jupp submits that even if the Claimant is a student of the University within Section 94(3) of the Equality Act 2010 (which he denies) he can only es-cape the effect of section 55 if the Governing Body of the University has the power to afford access to the ACCS programme. He submits that it does not have such power it cannot decide who is or is not permitted to go on the ACCS course. It plays no role at all in that



process: see the witness statement of Miss Chan at paragraphs 31 and 34. The recruitment process is car-ried out by the London Deanery. The West Midlands Deanery sets the scoring framework: Miss Chan’s wit-ness statement paragraph 30(d). The individuals who conduct the interviews of candidates are independent of medical consultants employed by the NHS and not employed by the Deanery: witness statement Miss Chan paragraph 31.

41. Mr Jupp refers me to the documents produced by the West Midlands Deanery at 8.70 and 8/94 which provide that fi rst, short-listing will be conducted in a uniform way against a set of nationally agreed short-listing criteria: 8/71; standardised . interview formats with interviews performed by independent consul-tants: 8/72; standardised interview questions and scor-ing: 8/74; and standardised spreadsheets containing scoring produced by each Deanery. The University has no power to interfere with this process and it would be unlawful for it to attempt to do so.

42. In his extensive written and oral submissions Mr Loxton submits that the London Deanery is part of the University of London. He discusses the evidence in detail but with respect he does not successfully ad-dress the critical point against him which is that the relationship between the University of London and the London Deanery is circumscribed by the Memorandum of Agreement to which I have referred above. The ef-fect of this is to prevent the University from doing anything as regards the Deanery other than that which it is permitted to do by the Memorandum of Agreement. The Memorandum of Agreement does not allow for the University to interfere in any way with the admissions process to the ACCS course adminis-tered by the London Deanery. I am simply unable to accept Mr Loxton’s detailed submissions that the Governing Body of the University of London ulti-mately has the power to afford access to the training and guidance provided on the ACCS. Section 56(5) of the Equality Act 2010 has no application to this case.

Conclusion43. While I have heard other interesting submis-sions in the course of this hearing I do not regard it as necessary for me to discuss them in this judgment. For the reasons I have given I grant the Defendant’s appli-cation for a declaration that the County Court has no jurisdiction to consider the Claimant’s claim.

44. If the parties can agree (a) the precise terms of the declaration; (b) costs and (c) the form of the order I should make I will excuse them from attendance when this judgment is handed down in due course in open court.


[2013] EqLR 754 MM v Secretary of State for Work and Pensions: Upper Tribunal

MM v Secretary of State for Work and Pensions

[2013] UKUT 259

Upper Tribunal (Administrative Appeals Chamber) (Mr Justice Charles, Upper Tribunal Judge Jacobs, Upper Tribunal Judge Lane)

22 May 2013 and 24 May 2013

Disability: failure to make reasonable adjustments; services and functions ● Services and functions: disability

The Secretary of State for Work and Pensions had failed to take such steps as it was reasonable for him to have to take to avoid the substantial disadvantage caused to claimants for Employment and Support Allowance with mental health problems. This amounted to a breach of the duty to make reasonable adjustments in relation to the exercise of a public function and the process for assessing claimants for that benefi t was therefore subject to judicial review.

The factsThe Applicants are people with impaired mental, cognitive and intellectual functions (mental health problems). They brought proceedings for judicial review against the Secretary of State for Work and Pensions (the Respondent) arguing that the process of assessment for entitlement to Employment and Support Allowance (ESA) discriminated against people with mental health problems by reason of the failure of the Respondent to make reasonable adjustments to it as required by the Equality Act 2010. The claim was transferred to the Administrative Appeals Tribunal upon permission to bring the claim being granted by the Administrative Court. Three charities with particular interest in supporting people with mental health problems (Mind, the National Autistic Society and Rethink Mental Illness) and the Equality and Human Rights Commission were given permission to put in evidence and make representations.

The process of applying for and continuing to justify the receipt of ESA requires a work capacity assessment to be carried out. This is done on the basis of a doctor’s certifi cate of limited capacity for work in statutory form (a “fi t” note from the benefi t claimant’s GP), a self-assessment questionnaire

which claimants may be required to complete from time to time (known as the form ESA50) and any such additional information as may be requested. This information is scrutinised by healthcare professionals engaged by Atos, the private body which is engaged to provide a report on the capabilities of the claimant to the decision-makers at the DWP, who then determine the claimant’s entitlement to ESA. Form ESA50 directs claimants to provide copies of any medical reports or other information that they wish the decision-maker to see, together with the form itself. If a claimant has, or claims to have, mental health problems their case is fl agged to that effect. If such a claimant does not return their ESA50 within the required period, the claim is referred to the healthcare professionals rather than, in the case of other types of condition, to the DWP decision-maker.

In some specifi ed and limited circumstances, the healthcare professional was able to request fresh medical evidence (referred to as FME). Then, upon considering the available information (including FME if it had been obtained), the healthcare professional considered whether a face-to-face examination should take place. There were some adaptations of the process thereafter in relation to claimants with mental health problems, and special training and guidance given to the healthcare professionals in connection with assessing the claims by such claimants. The Upper Tribunal (Administrative Appeals Chamber) (UT(AAC)) found that it was only in a very few cases that FME was sought before any face-to-face examination took place. If a claimant was unsuccessful in their initial application for ESA, they have the right to appeal for a full rehearing at the First Tier Tribunal. Successful claimants may be assessed as having limited capability for work, but able to participate in work-related activities – if so, they would be allocated to the work-related activities group. Alternatively, they may be assessed as having limited capability for work-related activities – if so, they would be transferred to the support group. The emphasis on assessing what a claimant’s capacity was for particular activities was a departure from the assessment carried out in relation to the benefi t that ESA replaced, Incapacity Benefi t, and the healthcare professional was required to assess the claimant’s capabilities, whereas a medical examination would focus upon diagnosis.

The Applicants argued that the limited circumstances in which FME was sought put them and people such as themselves with mental health problems at a disadvantage and that a reasonable adjustment to the process would be to seek FME less restrictively. In the case of the fi rst Applicant, FME should have been sought but wasn’t; his claim

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MM v Secretary of State for Work and Pensions: Upper Tribunal [2013] EqLR 755

was initially unsuccessful but he was successful on appeal. In the case of the second Applicant, it was accepted that she fell into the category of claimants for whom a request for FME should have been made and therefore should be made in the future. However, in neither case had requests for FME been made and the Applicants’ evidence was that experiencing the assessment procedure, although ultimately successful for both of them, was a disadvantage in itself which could have had less impact upon them had a different approach been taken to requesting FME before the healthcare professional made an assessment of their capabilities. The adjustment which the Applicants argued it was reasonable for the Respondent to have to make was to require the healthcare professionals to seek FME in all cases involving claimants for ESA who have mental health problems.

Evidence was provided by the charities to the UT(AAC) to the effect that in terms of completing the form ESA50, providing additional information and answering questions, claimants with mental health problems encountered particular diffi culties because their condition itself could cause, among other things, an insuffi cient appreciation of the condition, diffi culties with social interaction, diffi culties in describing their condition and confusion about what was required of the process. Furthermore, the assessment process and face-to-face meetings might be particularly diffi cult depending upon the nature of their condition or be stressful and intimidating to the point of having a long-lasting negative effect (something the second Applicant gave evidence of in relation to her own situation).

Additional information was provided to the UT(AAC) in the form of reports by Professor Harrington, an occupational health specialist, written in compliance with a statutory requirement for periodic review under the Welfare Reform Act 2007. The most recent report of Professor Harrington contained a recommendation that decision-makers should actively consider the need to seek further documentary evidence in every claimant’s case and justify a decision not to seek that further evidence.

The relevant sections of the Equality Act 2010 are:“s.20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and [Schedule 2] apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.

(3) The fi rst requirement 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....

s.21 Failure to comply with duty(1) A failure to comply with the fi rst, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.(3) A provision of an applicable Schedule which imposes a duty to comply with the fi rst, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise....s.29(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.(7) A duty to make reasonable adjustments applies to –(a) …(b) a person who exercises a public function that is not the provision of a service to the public or a section of the public.”

Schedule 2 para. 2 to the Equality Act 2010, so far as relevant, provides that the duty to make reasonable adjustments in relation to the exercise of a public function means that:“(1) A must comply with the fi rst, second and third requirements.(2) For the purposes of this paragraph, the reference in section 20(3), (4) or (5) to a disabled person is to disabled persons generally.(3) …(4) In relation to each requirement, the relevant matter is the provision of the service, or the exercise of the function, by A.(5) Being placed at a substantial disadvantage in relation to the exercise of a function means –(a) if a benefi t is or may be conferred in the exercise of the function, being placed at a substantial disadvantage in relation to the conferment of the benefi t, or(b) if a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment.”



DecisionThe Upper Tribunal (Administrative Appeals Chamber) declared that:● Persons with mental health problems suffer substantial disadvantage in the present process of assessment for eligibility for Employment and Support Allowance.● The burden of proving whether the adjustment advanced by the Applicants or steps towards implementing it involve steps that it has been, is or will be reasonable for the Respondent to take to avoid that substantial disadvantage has passed to and rests with the Respondent.● The issue of whether the adjustment contended for is one that it is reasonable for the Respondent to have to make is adjourned to a hearing to be listed in September 2013. Directions were made for the fi ling of further evidence directed to that issue following an investigation or assessment by the Respondent into how they might amend the process in order to require that decision-makers should actively consider the need to seek further medical evidence (MFE) in every claimant’s case, and the fi nal decision be justifi ed where such FME was not sought.

The Upper Tribunal (Administrative Appeals Chamber) HELD:(1) Where a provision, criterion or practice (PCP) put disabled people generally at a substantial disadvantage in relation to the exercise of a public function, the Respondent Secretary of State for Work and Pensions owed a duty to take such steps as it was reasonable to have to take to avoid that disadvantage. In designing and implementing the process for assessing the eligibility of a claimant for the benefi t known as Employment and Support Allowance (ESA), the Respondent was exercising his statutory function of administering the statutory scheme relating to ESA. By so doing, a benefi t was or may be conferred.

To establish the existence of the duty to make reasonable adjustments, the question to be asked was whether the present practice of the Respondent in respect of the exercise of his function of designing and implementing the process for assessing eligibility for ESA puts disabled persons generally at a disadvantage that was more than minor or trivial in relation to the conferment of ESA in comparison with persons who are not disabled.

(2) The Tribunal could not accept the Respondent’s argument that the different statutory wording of what amounts to a “substantial disadvantage” in relation to the conferment of a benefi t on the one hand in para. 2(5)(a) of Schedule 2 to the EqA, and in relation to being subjected to a detriment in para. 2(5)(b) on the other hand, meant that the Applicants could not rely upon having suffered an “unreasonably adverse experience”, as referred to in para.2(5)(b), as amounting to the relevant disadvantage as regards the conferment of a benefi t. The general meaning of “disadvantage” in para. 2(5)(a) should not be cut down so that an “adverse experience” could not be classifi ed as a “substantial disadvantage”. It was a false assumption that cases must be classifi ed as either falling within para. 2(5)(a) or para. 2(5)(b).The ESA assessment process may potentially confer a benefi t (continuation of entitlement or transfer to the support group) or subject a person to a detriment (termination of entitlement). Paragraph (5) of Schedule 5 defi nes “being placed at a substantial disadvantage” and so is directed to what makes a person’s position worse than it need be relative to the potential outcome. The language chosen falls to be applied whether the relevant outcome is a benefi t or a detriment, and a claimant who is ultimately successful can be said to have suffered a detriment by reason of an adverse decision or practice during the decision-making process. The issue is whether what has happened is properly within the ordinary meaning of the language used in the defi nition and in taking that approach it is a mistake to try to give primacy to the wording of (a) in order to cut down (b) or vice versa. Rather, they should be read and applied collectively. When this is done, an impediment to a claimant for a social security benefi t may be a disadvantage or an unreasonably adverse experience according to whether or not the claimant is ultimately successful.

(3) In bringing a claim of a breach of a duty to make reasonable adjustments under s.21 of the EqA, an individual claimant has to establish fi rst that there was a failure to comply with the fi rst, second or third requirements set out in s.20(3) to (5), and so a failure to comply with a duty to make reasonable adjustments, and then that there was a breach of that duty in relation to him. That is a two-stage process.

The fi rst stage, in the case of an alleged PCP, involves an application of the test set by s.20(3). It also has two limbs: the fi rst is a comparative test by reference to two classes of persons to establish the existence of a substantial disadvantage (as defi ned), and the second is directed to whether there are



steps that it is reasonable to take to avoid that disadvantage. Both limbs are therefore founded on a generic test.

At the second stage, the test set by s.21 and the questions it poses are dependent on the establishment, extent and nature of the duty (and therefore of the reasonable adjustments that have to be made by reference to a class or classes of claimants) and the impact on the individual claimant of the failure to have made them. That impact is not confi ned to the decision on entitlement to, or payment of, the relevant benefi t.

Therefore, in the present case, the Applicants had fi rst to establish both that there was a substantial disadvantage and that the Respondent had a duty to take reasonable steps to avoid that disadvantage by putting in place a different practice for obtaining FME. Secondly, if they succeeded in doing that, the Applicants had to establish that in their individual cases FME was not sought in accordance with the reasonable adjustment that should have been made. At that second stage, it was possible for the Applicants to establish a breach of duty without showing that the breach of duty had an effect on the conferment of the benefi t (that is to say, an effect on proof of their entitlement to ESA). If they could not show that effect, it might mean that they can claim no, or only reduced, damages (for example, for distress and injured feelings). In such a case, however, they could still seek a declaration that there had been a breach of duty in relation to them as individuals.

(4) When considering whether the duty to make reasonable adjustments arises in relation to the exercise of a public function, the test requiring the Applicants to show that a PCP of A’s puts disabled persons generally at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled does not mean that the impact of a practice on a class of disabled people (for example, blind or deaf people and, in the present case, people with mental health problems) cannot be taken into account. If this were not so, an obvious underlying purpose of the EqA to cater for and to put in place a duty to make differing reasonable adjustments for people suffering from different physical and mental disablements would be thwarted. On that basis, it was natural to read the statutory phrase “persons who are not disabled” to include “persons who are not so disabled” and so to cover both “persons who are not disabled or are not so disabled”.

(5) The present approach by the Respondent fell short of what is required to assess and implement

reasonable steps to avoid the substantial disadvantages to claimants with mental health problems.

There was evidence that claimants with mental health problems encountered particular diffi culties in completing the form ESA50 when it is not needed, by being required to attend a face-to-face examination/assessment when this is not needed, during a face-to-face examination/assessment, and during the fi nal decision-making process and the communication of that decision.

Those diffi culties meant that persons with mental health problems as a class are placed at a disadvantage that is more than minor or trivial in relation to the conferment of a benefi t or suffer an unreasonably adverse experience when being subjected to a detriment (for example, by reason of an adverse decision or experience during the decision-making process) and therefore satisfy the fi rst stage of the statutory test. It is plain that FME would add value to the decision-making process on many claims by claimants who have those diffi culties, because properly directed FME would provide information that would remove or reduce their impact. The present practice is that it is only in a very few cases that FME is obtained before a claimant completes form ESA50 or attends a face-to-face examination. If appropriately directed FME was made available earlier in the decision-making process in respect of claims by claimants with mental health problems, it is likely that, in a signifi cant number of such claims, the healthcare professional reporting to the Respondent on the claimant’s condition would be better informed before requiring a form ESA50 to be completed and at the face-to-face examination, with the result that the decision-making process in respect of claimants with mental health problems, and the way in which it is perceived by them, would be improved because the diffi culties caused by their individual conditions would be better addressed and so avoided or reduced.

(6) It would not be a reasonable adjustment to the process, however, to require that FME should always be sought at an early stage in the assessment of the entitlement to ESA of claimants with mental health problems, since a signifi cant number of such claimants would not encounter particular diffi culties.

The alternative suggestion that decision-makers should actively consider the need to consider whether FME should be sought in every claimant’s case and justify a decision not to seek that further evidence was more likely to effectively target those claims in which FME would be likely to add real value to the decision-making process without requiring it to be obtained in the signifi cant number of cases in



which it would add nothing to the information available to the decision-maker by other means.

Before making a fi nal determination and order as to the reasonable steps the Respondent should have taken or is to take to avoid those substantial disadvantages, the Respondent would be directed to carry out an investigation or assessment as to how an obligation on decision-makers actively to consider the need for FME in every claimant’s case and justify a decision not to seek it could be implemented.

Cases referred toNo cases were cited in the judgment.

AppearancesFor the Applicants: Nathalie Lieven QC and Tim Buley, instructed by Public Law Project For the Respondent: Martin Chamberlain and Gwion Lewis, instructed by DWP Legal ServicesFor Mind, National Autistic Society and Rethink Mental Illness, intervening: Richard Drabble QC and David Blundell, instructed by Clifford Chance LLPFor the Equality and Human Rights Commission, intervening: Catherine Casserley, instructed by the EHRC

MR JUSTICE CHARLES:

1. This is a claim for judicial review which was trans-ferred to the Upper Tribunal (Administrative Appeals Chamber) by Edwards-Stuart J when he granted permis-sion to bring the claim. He transferred the case because, in his view, it is fact sensitive and involves issues that could have signifi cant ramifi cations for the administra-tion of the Employment and Support Allowance (“ESA”), and therefore a tribunal consisting of a member or mem-bers who have experience of the workings of the state benefi ts system would be an advantage. Two of us have considerable experience in that field and in respect of hearing appeals relating to ESA and its predecessors.

2. In argument before us people with impaired men-tal, cognitive and intellectual functions have been re-ferred to as people with mental health problems or “MHPs”. We will adopt this approach. Both of the Applicants (DM and MM) have MHPs.

3. The Applicants argue that the process of assess-ment for entitlement to ESA discriminates against peo-ple with MHPs by reason of the failure of the Secretary of State for Work and Pensions (“the SSWP”) to make “reasonable adjustments” as required by the Equality Act 2010. In general terms:i) the Applicants assert that the ESA assessment process discriminates against claimants with MHPs, because such people, by the nature of their conditions, face par-ticular disadvantages in respect of its application, ii) the adjustment that the Applicants seek relates to the approach of the SSWP to obtaining further medical evi-dence (“FME”),iii) the Applicants’ primary case is that, the reasonable adjustment that the SSWP is under a duty to make pur-suant to the Equality Act 2010 is to provide that FME is always sought at an early stage in the case of a claimant for ESA with a MHP, and, in argument, they advanced the alternative that as a minimum the SSWP should im-plement a recommendation which we defi ne later as the Evidence Seeking Recommendation, and iv) the SSWP argues that the claim should be dis-missed.

4. The Department of Work and Pensions (“the DWP”) is responsible for the administration and pay-ment of ESA.

5. The First Applicant, MM, is a man with a MHP who has been through the ESA assessment process. His claim for ESA was refused by the DWP. MM appealed to the First-tier Tribunal (“the FtT”) and his appeal was successful. He faces regular reviews of his entitlement to ESA and asserts that he fears that on those reviews he may again have to appeal the decision of the DWP on entitlement, if the approach of the SSWP is not adjusted in respect of the obtaining of FME.

6. The Second Applicant, DM, has a severe mental illness, Schizoaffective Disorder, and has been in receipt



of Incapacity Benefi t (“IB”), the predecessor to ESA for a number of years. She will be subject to assessment for ESA at a date to be determined between now and 2014. The last time she underwent an assessment for IB, in 1995, she found the process to be traumatising and, de-spite qualifying for IB, she relapsed, and was readmit-ted to hospital. She asserts that her fears concerning the fact of having to undergo the process of assessment for ESA are exacerbated by her fears about the way in which her case will be considered, especially in relation to the approach taken to obtaining FME.

7. As both Applicants have now had the benefi t of experienced legal advice a factual diffi culty which they face is that they are now fully aware of their ability, at the times the relevant assessments start, to provide the FME that they, and their advisers, maintain to be relevant. But, as they correctly point out, other people with MHPs will not have had the benefi t of such advice, or other advice, which would lead them to submit to the DWP the FME that the Applicants assert the SSWP should obtain in every case in which the entitlement of a person with a MHP to ESA is being assessed by the DWP.

8. Three charities (Mind, the National Autistic Society and Rethink Mental Illness) were given permis-sion to submit evidence and to make representations under rule 33 of the Tribunal Procedure (Upper Tribunal) Rules 2008 in order to assist us in understand-ing the particular problems faced by people with MHPs and to advance their views on the issues in this case. In doing so they put in evidence. The Equality and Human Rights Commission was also given permission to make representations under rule 33 with its focus on the Equality Act 2010. In the absence of any statutory term under rule 33, we have adopted Intervener and, when we refer only to the charities, Charity Interveners.

ESA9. Before turning to the arguments, it is necessary to describe:i) how decisions on entitlement are made, the basics of entitlement to ESA and in particular, the routes by which a claimant becomes, and may remain, entitled to benefi t, and soii) the present practice, in particular in respect of obtain-ing FME, in relation to which the Applicants assert the DWP has a duty to make reasonable adjustments be-cause it puts claimants with MHPs at a substantial dis-advantage.

10. ESA is governed by the Welfare Reform Act 2007 (‘the WRA 2007’) and its supporting regulations, the Employment and Support Allowance Regulations 2008 (‘the 2008 Regulations’). It replaces IB. It is ad-ministered by the DWP and decisions on claims for ESA on behalf of the SSWP are made through its de-partmental decision-makers (“DWP decision-makers”). They alone are responsible for making ‘outcome deci-sions’, which include the decision on whether a claim-ant is entitled to benefi t.

11. Within that process, the DWP refers aspects of a claim to its medical service provider, which is currently Atos Healthcare (“Atos”). Atos in turn engages health care professionals (“HCPs”) whose duties include, for example, scrutinizing self-assessment questionnaires (the ESA50) which claimants are obliged to return from time to time, gathering documentary evidence (usually of a medical nature), undertaking face-to-face examina-tions and assessments and providing reports to the DWP decision-maker.

12. The assessment of whether a claimant is entitled to ESA is at the heart of the system. For our purposes, we must consider three types of claimants who are re-quired to undergo assessments:i) ‘new’ claimants, ii) existing claimants who have been accepted as having limited capacity for work (or, as we understand it, lim-ited capability for work-related activity) whose cases are reviewed from time to time. These cases are de-scribed in some of the relevant documents as “re-refer-ral cases”, and iii) claimants who are currently in receipt of incapacity benefi ts (IB and Income Support on the basis of inca-pacity to work, and Severe Disablement Allowance). This class of claimants is gradually being assessed as either entitled to ESA or fi t for work. The process by which this is done is called the conversion process and in some of the relevant documents these cases are de-scribed as IB “re-assessment cases”.

13. Sections 8 and 9 of the WRA 2007 make entitle-ment to ESA dependent on the extent to which a claim-ant is restricted by his physical or mental conditions. Claimants may be classed as either having “limited ca-pability for work”, or as having more severe restrictions by reason of which they have “limited capability for work-related activity”. Those with limited capability for work are expected to engage in certain work-related ac-tivities. They are put into the Work Related Activity Group (WRAG). Those who are more restricted are not expected to undertake work-related activities. They are put into the Support Group.

14. The WRA 2007 requires the Secretary of State to assess the extent of a claimant’s capability for work by reference to the 2008 Regulations. Whether it is, or is not, reasonable for the claimant to work depends on whether he meets the strictly defi ned criteria in the 2008 Regulations. They have been amended over time, and are due for further amendment in April 2013. It was not suggested that the forthcoming amendments would have a material impact on the issues before us.

15. Part 5 of the 2008 Regulations (Regulations 19 to 33) and Schedule 2 govern the determination of limited capability for work. The test is often called the Work Capability Assessment (“the WCA”). This is a key fea-ture of the assessment of the entitlement to ESA and was designed and intended to remedy and change the method of assessment which had preceded it in respect



of IB (the Personal Capability Assessment –“the PCA”). The independent reviewer of the WCA, referred to below, Professor Harrington, has stated that the PCA:

“ lacked a focus on the positive effects of work and the interactions between recovery and work. [It] re-lied upon a medical model that took a binary ap-proach to incapacity, considering the curing of inca-pacity as the only route back towards work. This approach helps reinforce the myth that you have to be fully fi t to work. ”

By contrast, the WCA seeks to focus on what the individual can do, rather than what he or she cannot do.

16. Part 6 (Regulations 34 to 39) and Schedule 3 govern the determination of whether a claimant has lim-ited capability for work-related activity.

17. Each Schedule contains an exhaustive list of de-scriptors upon which capability for work or work-relat-ed activity is determined. The descriptors in Schedule 2 are grouped under Activities and are worth 6, 9 or 15 points each and to qualify a claimant has to score 15 points. Schedule 3 does not have a scoring system and the claimant qualifi es as having limited capability for work-related activity if at least one or more of the de-scriptors applies to him.

18. The descriptors are based on the ability to per-form functional activities as described in the descrip-tors. The descriptors in Schedule 3 comprise a number of the more stringent descriptors from Schedule 2 and a number of specially devised descriptors. For those who ‘pass’ the assessments, ESA is payable at two rates, the higher rate being payable if the claimant’s capability for work-related activity is limited. Whilst ESA claimants are usually assessed on their functional limitations, the 2008 Regulations enable certain claimants to be treated as having limited capability for work:(i) without undergoing an assessment at all in certain circumstances (e.g. regulations 20, 25, 26); or (ii) in exceptional circumstances where, the claimant does not have limited capability for work as determined in accordance with the WCA, one of the circumstances in regulation 29(2) is established:

“29(2) This paragraph applies if – (a) the claimant is suffering from a life threatening disease in relation to which –

(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and (ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be con-trolled by a recognised therapeutic procedure; or

(b) the claimant suffers from some specifi c disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a sub-stantial risk to the mental or physical health of any person if the claimant were found not to have limit-ed capability for work. ”

19. The provisions mentioned in Regulations 20, 25, 26 are ‘non-functional’ and relate to those who are, for example, terminally ill, receiving certain types of treat-ment or are in-patients in hospital. Regulation 29(2) is also non-functional, but unlike the other regulations, is expressed to be an exception. But it, and its equivalent in Regulation 35 can be applied without the claimant going through an assessment of whether he or she has a limited capability for work or for work-related activity.

20. Regulation 35 sets out the exceptional circum-stances by which a person may be put into the Support Group even though he has not qualified under Schedule 3:

35. – (1) A claimant is to be treated as having limit-ed capability for work-related activity if – (a) the claimant is terminally ill; (b) the claimant is –

(i) receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or (ii) recovering from that treatment and the Sec-retary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or

(c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity.

(2) A claimant who does not have limited capability for work-related activity as determined in accor-dance with regulation 34(1) is to be treated as hav-ing limited capability for work-related activity if – (a) the claimant suffers from some specifi c disease or bodily or mental disablement; and (b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

Assessment21. It is important to bear in mind that there is no for-mal assessment of fi tness when a person fi rst makes a claim for ESA. New claimants are treated as having a limited capability to work (and thus entitled to ESA) simply by submitting a claim form (ESA1) accompa-nied by the relevant medical evidence from his or her GP (regulation 30). The medical evidence used to be called a ‘sick note’, but is now called ‘a fi t note’. The period of time during which a claimant is treated as hav-ing limited capability for work is called ‘the assessment period’. This is normally 13 weeks but is automatically extended until such time as he or she is more formally assessed.

22. Following the assessment, a DWP decision-maker will decide whether the new claimant has limited capability for work, rather than just being treated as having that limited capability. If so, his or her entitle-ment to ESA continues and the new claimant will be al-located to the WRAG or the Support Group, depending



on the descriptors or non-functional provisions he or she satisfi es. If not, the existing award is terminated.

23. Existing claimants who have previously been as-sessed and found to have limited capability for work or limited capability for work-related activity are reas-sessed from time to time to see whether they remain en-titled to benefi t. These are re-referral cases and if the claimant is successful, the award continues. If not, the existing award is terminated.

24. Claimants who are being considered for possible conversion from IB to ESA are called for assessment under the 2008 Regulations. The assessment criteria are considerably more stringent than those which applied under the PCA to IB. If the claimant passes the assess-ment, he or she is awarded ESA. If not, the IB or Income Support award is terminated.

25. To sum up in broad terms, there are three ways in which a claimant can establish entitlement to ESA on the basis of limited capability for work and so be placed in the WRAG. They are:i) by scoring 15 points under Schedule 2,ii) by establishing that he or she falls be treated as hav-ing limited capability for work under Regulations 20, 25, 26, and 33(2), andiii) by establishing that he or she falls to be treated as having limited capability for work because of the ex-ceptional circumstances defi ned in Regulation 29(2).

26. In equally broad terms, there are two ways in which a claimant can establish his entitlement to ESA on the basis that his or her capability for work-related activity is limited and be assigned to the Support Group. They are:i) by satisfying a descriptor in Schedule 3, or ii) by establishing that he or she falls to be so treated un-der Regulation 35.

27. To monitor the working of ESA, section 10 of the WRA 2007 requires the SSWP to put before Parliament an independent report annually for the fi rst fi ve years after sections 8 and 9 come into force. The independent reviewer, Professor Harrington, has so far provided three reports, the third report was published in November 2012. This was after this claim was brought and only very shortly before the evidence on behalf of the SSWP was fi led.

The present process for the determination of the entitlement to ESA, the recognition within it of diffi culties faced by claimants with MHPs and steps taken to address them28. Guidance on the assessments pursuant to the 2008 Regulations is contained in a document entitled “Training and Development: ESA Filework Guide-lines”, Final, December 2010 (“the Filework Guide-lines”). We were also referred to another document, en-titled the “Employment and Support Allowance: Work Capability Assessment Outcomes made on Paper Evi-

dence”, November 2012 (“the 2012 Paper Assessment Study”) which is a statistical survey of the processing of claims for ESA, in particular “information on those claims where Atos healthcare make their recommenda-tions using paper based evidence only rather than face-to-face assessment” (see Introduction, p 2), as evidence of the approach taken.

29. Regulations 21 and 36 are important starting points in the process as they set out the information re-quired for a WCA. They provide:

Information required for determining capability for work21. – (1) Subject to paragraphs (2) and (3), the in-formation or evidence required to determine wheth-er a claimant has limited capability for work is – (a) evidence of limited capability for work in accor-dance with the Medical Evidence Regulations (which prescribe the form of doctor’s statement or other evidence required in each case); (b) any information relating to a claimant’s capabil-ity to perform the activities referred to in Schedule 2 as may be requested in the form of a question-naire; and (c) any such additional information as may be re-quested.

(2) Where the Secretary of State is satisfied that there is suffi cient information to determine whether a claimant has limited capability for work without the information specifi ed in paragraph (1)(b), that information will not be required for the purposes of making the determination.

(3) Paragraph (1) does not apply in relation to a de-termination whether a claimant is to be treated as having limited capability for work under any of reg-ulations 20 (certain claimants to be treated as hav-ing limited capability for work), 25 (hospital in-pa-tients), 26 (claimants receiving certain regular treatment) and 33(2) (additional circumstances in which a claimant is to be treated as having limited capability for work). Information required for determining capability for work-related activity

36 – (1) Subject to paragraph (2), the information or evidence required to determine whether a claimant has limited capability for work-related activity is – (a) any information relating to the descriptors set out in Schedule 3 as may be requested in the form of a questionnaire; and (b) any such additional information as may be re-quested.

(2) Where the Secretary of State is satisfied that there is suffi cient information to determine whether a claimant has limited capability for work-related activity without the information specifi ed in para-graph (1)(a), that information will not be required for the purposes of making the determination.



30. In summary, both regulations make provision for a questionnaire directed to obtaining information re-garding the functional tests in Schedules 2 and 3 and provide that, if the SSWP is satisfi ed that there is suffi -cient information to determine whether the claimant has the relevant limited capability without it, that informa-tion will not be requested by the questionnaire The questionnaire that is issued is the ESA50 and we under-stand that this is the questionnaire used in all three types of claim.

31. The evidence referred to in Regulation 21(1)(a) is what is now called a “fi t note”.

32. It is to be noted that Regulation 21(1) applies to some but not all of the relevant regulations under which a claimant can be treated as having limited capability for work. In particular, it does not apply to Regulation 29(2)(b) (the exceptional circumstance relating to sub-stantial risk if a claimant is found not to have limited capability for work) or Regulation 35(2)(b). In practice, relevant information on these tests is, or can be, derived from the claimant’s responses to the ESA50. The ESA50 also includes the statement in bold:

“If you have any medical reports from your doctor, consultant or health care professional, or any other information you wish us to see, please send them with this questionnaire”;

and, in addition, a free text box which enables claimants to explain their position in their own words. These parts of the ESA50 give the claimant an opportunity to provide FME and reflect the approach of Professor Harrington in his first two reports that the onus is and must be on the claimant to provide information to support the claim.

33. The decision whether an ESA50 is required is, in practice, left to Atos through its HCPs. We were told that Regulation 21(2) is not applied by a DWP Decision-maker on a case by case basis but has been, and is being, applied by a general decision made by or on behalf of the SSWP. No points were taken on whether the delega-tion of this matter to Atos was lawful or on the lawful-ness of the approach taken by the SSWP to the applica-tion of Regulations 21(2) and 36(2), and accordingly we have not considered any such points.

34. It was common ground before us that every claimant is required to complete an ESA50 before he undergoes his or her fi rst assessment for ESA. We con-fess that we are not clear whether that common ground covered IB re-assessment cases and re-referral cases but do not think this matters, and the position adopted be-fore us was that we should proceed on the bases that:i) in all three types of case the DWP refer the assess-ment process to Atos by an IT platform, the Medical Services Referral System (“the MSRS”), which holds the relevant case details, and by that route:

a) on a new claim, Atos will receive the claim form (ESA1) accompanied by a medical statement

from the claimant’s doctor (the fi t note) which con-tains a diagnosis of the claimant’s condition and comments on the functional effects of the condi-tion, b) on an IB re-assessment case, there will be no ESA claim or claim form, no medical statement (fi t note) is required and Atos will receive all available information relating to the previous claims, andc) on a re-referral case, no medical statement is re-quired but Atos will receive all available informa-tion relating to the previous claims

ii) if the claimant has, or claims that he has, a MHP, the case is fl agged to that effect (and, as we understand it, this fl ag is triggered by the information in (i)(a) to (c) above, or by information provided later if the fl ag is not already in place, andiii) in every case, Atos request that an ESA50 is com-pleted.

35. This fl ag is a clear recognition by the DWP that claimants with MHPs may have particular diffi culties relating to their MHPs with the assessment process that do not, or do not necessarily, arise with other claimants. This is also recognised in other aspects of guidance and practice relating to obtaining FME in respect of claim-ants with MHPs.

36. Before turning to that we should mention that:i) All new claimants are informed by the ESA 1 claim form that: “the best way to make a claim is by phone” via a free phone number. There are direct free phone lines within Jobcentres, DWP staff will ring claimants back should they prefer and in the majority of cases a DWP agent will collect the relevant data by telephone and will fi ll in the form on the claimant’s behalf. The form can also be fi lled in online. ii) The Statement of Fitness to Work which a claimant must get from his doctor (the fi t note) has been changed substantially since April 2010 and is intended to be more informative. The Guidance currently available to doctors on completing the form is to be revised to re-fl ect research by the Department to help doctors provide information that is as useful as possible to employers. The experience of the two Upper Tribunal judges on this tribunal is that, as the fi t note normally consists of little more than a diagnosis and is directed to the claim-ant’s employer, rather than functional limitations relat-ing to entitlement to ESA, its assistance to the ESA as-sessment is essentially limited to the provision or confi rmation of a diagnosis whose symptoms or effects are known to Atos HCPs, DWP decision-makers and tribunal members. iii) The ESA50 has been prepared following discussions with representatives from, for example, Mencap and the National Autistic Society, to ask a properly structured series of questions to guide a claimant to provide a full explanation of any mental health and other issues.

37. A claimant has 28 days to return the ESA50. If this is not done the claim is normally referred immedi-ately to a DWP decision-maker who considers whether



the claimant has good cause for not returning the ques-tionnaire and so whether pursuant to Regulation 22 he should be treated as not having limited capability for work. But, at this stage, if the claimant is identifi ed as having a MHP (by previous fl agging or otherwise) a failure to return the ESA50 is treated differently. Instead of referring the matter to a DWP decision-maker, it is referred to an Atos HCP.

38. This is a another clear recognition within the cur-rent practice that claimants with MHPs may have par-ticular diffi culties relating to MHPs in completing the questionnaire and it provides them with some protec-tion in respect of those possible diffi culties.

39. Where the claimant returns the ESA50, or where a claimant has a MHP and has not returned to the ESA50, an Atos HCP will then consider the claimant’s entitlement on the information referred to in paragraph 34(i) above.

Obtaining FME under the existing process40. The Filework Guidelines under the heading “General Principles of ESA Filework” provide that:

2.5 Deferring for FME in ESA FileworkAtos Healthcare HCPs are best placed to determine when it is appropriate to request fresh medical evi-dence from the claimant’s GP or other Healthcare Provider. HCPs must be aware of the issue of con-sent when requesting FME

2.5.2 Requests for FMEFME should be obtained in those cases where there is a strong probability that such evidence will con-firm a level of claimed disability where Support Group criteria may be established or “treated as limited capability for work may be confi rmed. In re-referral cases, FME may confi rm that there has been no improvement in the condition resulting in ongoing functional restriction or may even confi rm further deterioration such that Support Group ad-vice may be applicable. Where, in the scrutinising practitioner’s judgement there is a clear possibility that an examination may be avoided they should make reasonable attempts to seek further evidence. FME should not be requested simply to confi rm that an examination is required or to obtain further in-formation to assist the examining HCP. [methods of obtaining FME are set out]

If information from the GP is needed, usually an ESA113 will be sent. However there may be oc-casions when a specifi c issue needs to be addressed and Form FRR2 is more appropriate (e.g. when in-formation about the frequency of epileptic fi ts is re-quired).

FME should always be requested before calling for examination a claimant who is noted to have an appointee.

Where there is evidence of a previous suicide attempt, suicidal ideation or self harm expressed in the ESA50/50A, the HCP must request FME.

When you request FME, at the time when initi-ating the FME request you need to determine whether:• the case requires further review if FME is not re-turned • the case requires examination if FME is not re-turnedtherefore where FME is not returned only those cas-es where review is indicated will be submitted for further review. The remaining cases will automati-cally be submitted for examination.

At the time of calling for FME, if examination on non-return is selected, you must also indicate whether the case is “Dr only” and whether a DV is required. (See Section 10.3 for information on DVs and Appendix A for a list of Dr only conditions).

If and when FME is returned, the case will al-ways be reviewed with this further information.

The methods of obtaining FME (referred to but not set out in the above quotation) might be read as giving a discretion to obtain it in circumstances other than those mentioned in this guidance. However, it was common ground before us that it was not so interpreted and applied in respect of new claims.

41. Under the headings “ESA Re-referral Filework” and “Scrutiny of evidence in IB Re-assessment cases” further guidance is given in shorter and more general terms and the evidence of the DWP was to the effect that the limitations in 2.5.2 cited above did not apply to their application. This guidance is as follows:

6.1 ESA Re-referral Scrutiny...After review of all the evidence, the HCP must make a decision on whether FME is required. The decision on FME should be based on the current ev-idence available and must only be requested if it is likely to impact on the scrutiny advice [i.e. whether the claimant should be interviewed]

7.3 Scrutiny of evidence in the IB Re-assessment CasesIn IB reassessment fi lework, the HCP must scruti-nise all available evidence. This evidence may be on MSRS or in the ESA 55 jacket. ...

7.3.3 MSRS/ESA 55 information... At times the evidence in the ESA 50 may suggest deterioration in the condition or that there is un-likely to have been a signifi cant change since the last assessment. Usually there will be a require-ment for supportive “Medical facts” to be docu-mented to allow acceptance of LCW/LCWRA un-der the revised WCA and at times there may be a requirement for FME.

42. Pausing here, it was common ground that in a fi rst assessment case no one is assigned to the WRAG without being called to attend a face-to-face examina-



tion, and this provides the underlying reason for the Filework Guidelines already cited, to the effect that:i) FME should only be sought in cases where:

a) there is a strong probability that such evidence will confi rm that the Support Group criteria may be established, b) there is a strong probability that such evidence will confi rm that the claimant should be “treated as limited capability for work”, (but as we were told that in a fi rst assessment case no-one is ever assigned to the WRAG without being called to a face-to-face examination, it seems that if this is applied at all it only applies in practice to re-as-sessment and re-referral claims), c) a claimant is noted to have an appointee,

ii) the claimant has referred to a previous suicide attempt, suicidal ideation or self harm (where the word “must” rather than the word “should” is used in the guidance), andiii) FME should not be sought simply to confi rm that an examination is required, or to obtain further information to assist the examining HCP.

43. We note that the Regulations state that a claimant “may” be called to attend a face-to-face medical exami-nation. The DWP decision-maker is given a clear dis-cretion as to whether or not a claimant should attend such an examination. But as already noted, this aspect of the assessment process is delegated to Atos. Paragraph 2.5.2 of the Filework Guidelines (cited in paragraph 40 above) continue as follows:

Potential Review CriteriaEach case must be considered on its individual merits. However, in deciding the appropriate course of action, you may wish to consider the following points:• [where a claimant is likely to have a terminal ill-ness the case should be reviewed further]• [where a claimant reports undergoing chemother-apy the case will benefi t from further review]• where a claimant is likely to be so distressed by be-ing called for an examination or have such a high lev-el of disability that an examination will only be con-sidered when all evidence gathering has failed, the case should be reviewed further. In particular consider those claimants with major mental health conditions such as psychotic illnesses and claimants who, for ex-ample, our oxygen dependent or quadriplegic etc.

This list is not intended to be exhaustive and, as indicated above, you should consider each case on its own individual merits. ...

Examples of cases where it might be appropri-ate to seek further evidence (when there is insuffi -cient evidence on fi le) as an alternative to calling the claimant for an examination:• A fi rst referral where, in the scrutinising practitio-ner's clinical judgement, there may be a severe medical condition or disability present suggesting inclusion in the Support Group.• Where in a re-referral or IB re-assessment case there appears to be a level of functional disability that would meet the limited capability for work criteria.

44. The last two bullet points differentiate between types of claim. However, it is not clear to us whether this part of the guidance is to be considered at the same time as, or only after, the earlier guidance we have re-ferred to. But, for our purposes we do not think that this matters. While this part of the guidance gives a wider discretion than the earlier part in respect of the exercise of the power to call for a face-to-face examination it has to be read with the earlier part of the guidance which clearly discourages an HCP from seeking FME and so, for example, the points that in new claims FME should not be requested to obtain further information simply to confi rm that an examination is required or to assist the examining HCP. When this is done, in our view, the overall effect of the guidance is that FME should only be sought in cases that are similar to the examples given. The SSWP did not argue that DWP decision-makers or HCPs had a wide discretion not to call claimants with MHPs for a face-to-face examina-tion. Instead, he stressed the justifi cation behind the guidance which served to excuse particular types of vulnerable claimants from face-to-face interviews as a suffi cient response to their diffi culties.

45. Where, after considering all available informa-tion (which will only include FME if it has been volun-teered or the claim is one of the few cases in which it will have been sought before this stage), and the above guidance, the HCP considers that a face-to-face exami-nation should take place, special provision is made for claimants with MHPs because of the vulnerability and particular diffi culties of this group that are recognised by the DWP. These are:i) where a claimant with a MHP fails to attend a face-to-face examination, a DWP decision-maker will not normally proceed to take an immediate decision on en-titlement but will instead attempt to contact him or her by telephone and, if appropriate, arrange a “safeguard-ing home visit” before a decision on entitlement is made,ii) where a claimant with a MHP does attend for a face-to-face examination, he or she is encouraged to bring an advocate or friend for support during the examina-tion,iii) special training and guidance are given to HCPs in assessing persons with MHPs, and the WCA Handbook notes as follows:

Mental health conditions can result in signifi cant functional restrictions for many individuals and the assessment of those with problems can be chal-lenging. The presence of a mental health problem may be obvious from the medication/med3 details etc but may not always be immediately apparent. The HCP must consider in all cases whether there may be any evidence of any mental function prob-lem. They should be mindful that those with physi-cal problems may also have subsequent mental health issues and careful and detailed exploration of these issues must be a part of any assessment. Some people will be reluctant to disclose mental health issues due to fear, embarrassment etc and



HCP’s must use all their communication skills to ensure they obtain all relevant information possible to ensure the claimant’s true level of function is ac-curately refl ected. The HCP must have a high level of suspicion about the presence of any mental func-tion issue and must carefully explore mental health symptoms that may not be overtly “provided” by the claimant. ”(We mention that it was common ground before us that in the last sentence the word “suspicion” carried the meaning that the presence of a MHP must be carefully investigated by the HCP to try to identify and take into account symptoms that were not overtly provided to the DWP.)

46. So, generally, that special provision is directed to the stage of the face-to-face examination by which time the claimant will have completed an ESA50 and FME will only be available if it has been volunteered or the claim is one of the few cases in which it will have been sought by then. And, that special provision, and the check referred to in the next paragraph, do not include a practice as to when FME should be sought, although we understand that it might be sought at those stages in a few cases.

47. Finally, where after considering all relevant in-formation, the DWP decision-maker is minded to disal-low a claim he will make up to 2 attempts to telephone the claimant to inform him or her of the likely decision and, in so doing, to try and identify any inaccuracies in the Atos assessment. If, as a result of the telephone call, the DWP decision-maker has concerns about a claim-ant with MHPs he or she can request a safeguarding home visit at which matters will be explained to the claimant face-to-face. This telephone call could also lead the DWP decision-maker to allow the claim, or to consider it appropriate to seek further advice from the HCP, or to request a claimant to submit further written evidence, or to contact (with relevant consents) the claimant’s chosen healthcare advisor to confi rm the in-formation provided by the claimant.

Pausing here - The recognition of the diffi culties of claimants with MHPs and the obtaining of FME under the present practice48. It is recognised by the DWP in its present prac-tice (e.g. by fl agging and in the WCA Handbook notes) and its evidence in this case that claimants with MHPs have vulnerabilities and present (or can present) chal-lenging problems. This is also recognised by Professor Harrington, who refers to the “unique circumstances of their condition” (see paragraph 41 of his third report quoted at paragraph 60 below).

49. We confess that, as no doubt the preceding para-graphs show, we have not found it easy to pin down with precision when FME is sought as a matter of dis-cretion under the present practice, and so in the applica-tion of the Filework Guidelines, in all of the three types of claim. Our diffi culties in this respect focus on re-re-

ferral and re-assessment claims when the DWP will have more information than on a new claim and cases to which Regulations 20, 25, 26, 29 and 35 apply.

50. The position adopted before us and our under-standing of the Filework Guidelines and the evidence of the present practice in respect of new claims is that:i) the circumstances in which FME is required to be sought by a DWP decision-maker and/or an HCP are very limited (namely when there is a strong probability that the Support Group criteria will be established, the claimant has an appointee and when there is evidence of a previous suicide attempt, suicidal ideation or self harm expressed in the ESA50; and even if there is a strong probability that treated as limited capability for work may be confi rmed this does not in a new claim found a requirement to seek FME), ii) those limited circumstances in which FME is re-quired to be sought are not directed to and are not ap-plied to claims where Regulations 29(2)(b) and 35(2), which are non-functional tests that, in the case of a claimant with MHPs are directly related to that claim-ant’s mental health, and in such claims the claimant will be required to fi ll in an ESA50 (but see the next paragraph),iii) the present practice does not require FME to be sought in any other circumstances before the ESA50 is completed and so there is no case by case consideration under Regulations 21 and 36 to inform whether the power to dispense with the ESA50 should be exer-cised,iv) the position adopted before us was that Atos will request an ESA50 in every case which indicates that FME will not (or will only rarely) be sought as a matter of discretion before that request is made. And this means that the position is that FME will in effect only be sought before the ESA50 is requested in cases where there is strong probability that Support Group criteria will be established and when the claimant has an ap-pointee, v) but a fl ag that a claimant asserts that he or she has MHPs will be entered on the system, and we under-stand that this will generally be done before the ESA50 is requested,vi) FME is not to be sought before or after the ESA50 is requested and supplied to confi rm that an examina-tion is required,vii) FME is not to be sought before or after the ESA50 is requested and supplied to obtain further information to assist the examining HCP, andviii) as a result, it will only be in very few cases that FME will be sought before the face-to-face examina-tion / assessment with an HCP takes place, and even in cases when it is (or it is volunteered) the face-to-face examination / assessment will take place in most of them.

51. It may be that all of the above do not apply in cases when Regulations 20, 25, 26 29 and 35 apply and in re-referral and re-assessment cases and, if that is the case, we are unclear as to the extent of the departure in



such cases. But, whatever the position relating to them, the evidence and common ground before us is that be-fore the fi rst two steps in the process (after an assess-ment of a claim has been initiated) namely: i) the request that an ESA50 be completed, and ii) the claimant is called for a face-to-face examinationit is only in a few cases that FME will be requested.

52. The consequence of this is that the relevant deci-sion-maker (and the practice is that this will be the HCP) will only be able to take FME into account when mak-ing these two decisions and at the face-to-face examina-tion / assessment:i) if, by then it has been volunteered, orii) the claim is one of the few in which it will be request-ed by or on behalf of the DWP.

53. So, in most claims the ways in which the recog-nised unique vulnerabilities and diffi culties of claimants with MHPs are addressed, under the present practice, relate to (a) a failure to attend and attendance at the face-to-face assessment (see paragraphs 45 and 46 above), and (b) a checking process if a claim is refused (see paragraph 47 above). And, those aspects of the present practice do not include provisions as to when FME should be sought, although we understand that as a mat-ter of discretion it might be sought at those stages in a few cases.

54. In its evidence the DWP stated that data for October 2012 shows that where a paper based assess-ment was made without meeting the claimant face-to-face FME was requested in around 27% of new claims and 42% of IB re-assessment cases. We assume that those fi gures relate only to claimants with MHPs, but it is not obvious how they fi t with the practice as described to us and when and why such FME was requested in such claims. The relevance of these percentages was not explained and it needs to be remembered that this data relates only to cases where no face-to-face assessment was requested, that it does not quantify the number of such cases and that the accepted position before us (con-fi rmed in the DWP’s additional evidence) was that the current practice does not allow for FME to be sought to enable a claimant to be put into the WRAG on the basis of the descriptors without a face-to-face assessment. From that it follows that these percentages relate to only some, and it seems only a small part, of the claims we are concerned with and do not undermine our summary of the present position.

Appeals to the First-tier Tribunal (“FtT”)55. If a DWP decision-maker decides that the claim-ant does not have limited capability for work or limited capability for work-related activity, the unsuccessful claimant has a right to appeal to the FtT. The proceed-ings are by way of a full rehearing on issues of fact and law, and the FtT can make any decision that was open to the decision-maker. The tribunal is a specialist body made up of a judge and a medically qualifi ed member and it decides the claim on the basis of its fi ndings of

fact based on the evidence before it and its application of the statutory provisions.

56. So, the appeal to the FtT is a new and free stand-ing fact fi nding and decision-making process, and its decision on entitlement is only appealable on a point of law. Often the FtT will hear evidence from and will question the claimant and, as a result, will have addi-tional evidence before it and the advantage of hearing evidence from the claimant and a member of the claim-ant’s family. The well developed case law relating to the duties of First-tier Tribunals in the Social Entitlement Chamber places upon them an extensive investigatory duty which is now buttressed by the overriding objec-tive in Rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 to deal with cases fairly and justly. In practice, this means that the FtT may call for FME whether or not either of the parties have submitted such evidence. By the time an appeal reaches the FtT, the experience of the Upper Tribunal judges on this tribunal is that claimants – whether or not they have MHPs – will regularly have produced FME or medically related evidence.

The reports/ reviews of Professor Harrington 57. It is not appropriate for us to try and give a sum-mary of these reports and we must, of necessity, confi ne ourselves to those parts of the reports which are of most relevance to these proceedings. We are conscious that what we say about them “cherry picks” from parts of the reports which merit reading as a whole.

58. Professor Harrington is a leading occupational health specialist. He was appointed to provide the fi rst three reports required under s. 10 of the WCA 2007 and, in doing so, he has been assisted by an Independent Scrutiny Group appointed by the SSWP. His reports are based on reviews that have taken into account responses from a wide range of sources, and from conducting meetings and seminars with a number of stakeholders. The Interveners have taken part in his reviews.

59. In his fi rst report, published in November 2010, he concluded that the system was not working as well as it should but that it was not beyond repair. Both par-ties referred us to Chapter 5 of this report. In paragraphs 33 to 35, he noted that concerns had been raised about the assessment by HCPs of claimants with MHPs. At paragraph 35 he said:

“In part these concerns reflect the difference be-tween a medical examination, which focuses on di-agnosis, and the Atos assessment, which looks at a person’s functional capability. With thorough dis-ability assessment training and a focus on the indi-vidual rather than the computer, Atos HCPs should be able to undertake most assessments to a high standard. The review also recognises that some con-ditions are more diffi cult to assess, due to their sub-jectivity and so makes recommendations to enable mental, cognitive and intellectual conditions to be assessed more accurately.”



60. In Chapter 6 at paragraph 16, to which we have already alluded, he said:

“While the onus is and must be on the claimant to provide information to support their claim, this is not always clear to claimants. There is no doubt that collecting this information can place extra burdens on the individuals. However, it is diffi cult to see any justifi cation or method of operating such a system without requiring the majority of claimants to be their own advocates.”

61. The fi rst report made a number of recommenda-tions including ones which are refl ected in the support given by Jobcentres to claimants, and in the free text section of the ESA50 referred to respectively in para-graphs 36(i) and 32 above. Professor Harrington also recommended that Atos provides mental, intellectual and cognitive champions in each medical assessment centre, but in his second report he recognised that the regional approach adopted by the DWP to his recom-mendation was a more effi cient use of scarce resources which still delivered the desired result. By the time of the Government’s response to his second report there were 60 mental function champions trained and in place, and in that response the Government stated that they were having a positive impact, with the champions receiving an average of 10 calls per day, and providing coaching and assistance with training as well as infor-mal support within the assessment centres. HCPs have welcomed the introduction of such champions.

62. In his fi rst report, Professor Harrington also rec-ommended that:

Decision-makers receive training so that they can give appropriate weight to additional evidence.Decision-makers are able to seek appropriate cho-sen healthcare professional advice to provide a view on the accuracy of the report if required.

63. In his second report, published in November 2011, Professor Harrington noted that the DWP moved swiftly to implement the recommendations in his fi rst report by making appropriate policy changes.

64. The Applicants submit that the DWP has not cor-rectly interpreted the second recommendation cited in the preceding paragraph (“the Additional Advice Recommendation”). They argue that, by that recom-mendation, Professor Harrington was indicating that ad-vice should be sought from healthcare professionals nominated by, and who had specifi c knowledge of, the claimant, and not from other healthcare professionals. They referred to the executive summary in Professor Harrington’s third report in which he says: “all the rec-ommendations made so far have been accepted by the Government. Not all have been fully acted upon yet.”

65. Whether or not the Additional Advice Recom-mendation has, or has not, been properly understood or fully implemented, it is clear that the general tenor of Professor Harrington’s reports is that the DWP has ac-

cepted and acted upon his recommendations and that by so doing the process and the WCA has noticeably changed for the better. For example, in respect of the im-plementation of the year one and year two recommenda-tions he also said, in his third report that:

The WCA continues to be portrayed in an extreme-ly negative light, often fuelled by adverse media coverage, representative groups and political points scoring. Whilst the Review continues to hear exam-ples of individuals who have been poorly treated by the WCA process, DWP can be reasonably pleased with what they have achieved. Some recognition of the considerable work to date would give a more balanced picture and DWP needs to be more proac-tive in communicating this.

66. In light of the Government’s response to Professor Harrington’s third report, in our view, it is not necessary or appropriate for us to examine the precise extent of the implementation of the Additional Advice Recommendation, as whatever the answer, it has now been overtaken by a recommendation made in the third report, where in his discussion of “any additional infor-mation supplied in support of the claim, whether it comes from a medical practitioner, professional allied to medicine, or someone else who knows the claimant and how their conditions affect them” he signposts a signifi cant change to the approach that the onus should be on claimants to provide information to support their claims by saying:

Discussion36. The year one Review said that: “the onus is and must be on the claimant is to provide information to support their claim ---- it is diffi cult to see any justi-fi cation or method of operating such a system with-out requiring the majority of claimants to be their own advocates”.

37. During the year two Review it became clear that the Decision-makers were seeking to gather in-creased amounts of further documentary evidence as recommended in year one. This was seen as posi-tive progress whilst also recognising that, in an ideal world, further documentary evidence will be pro-vided at an earlier point in the claim process. Con-cerns remained that further documentary evidence was often only being provided as part of the recon-sideration process.

38. However, some charities have suggested that the collection of further documentary evidence should be a mandatory duty on either Atos or on the Decision-maker. They have argued that claimants cannot, for a number of reasons, collect this infor-mation themselves and therefore the Department should take responsibility for doing so.

39. This view has been widely canvassed over the course of this year and put to charities, representa-tive and disability groups, politicians, senior offi -cials in DWP and, most importantly, to the Deci-



sion-makers during this year’s unannounced visits to Benefi t Delivery Centres.

40. A consensus has clearly emerged. There should be a requirement in every claim to consider seek-ing further documentary evidence and, if that evi-dence is not sought, that the decision not to should be justifi ed.

RecommendationBased on this, I recommend that:Decision-makers should actively consider the need to seek further documentary evidence in every claimant’s case. The fi nal decision must be justifi ed where this is not sought.

41. Given the unique circumstances of their condi-tion, particular care should be taken when the claim-ant has a mental, intellectual or cognitive condition as these individuals may lack insight into the effects of their condition on their day-to-day functioning.

67. We will refer to this recommendation as the “Evidence Seeking Recommendation”.

68. Professor Harrington’s Evidence Seeking Recommendation falls short of the adjustment put for-ward by the Applicants and Interveners. It is carefully worded to avoid mandatory evidence seeking in any particular case or class of cases. Obvious reasons for stopping short of a recommendation that the DWP ac-tively seek evidence from a healthcare professional cho-sen by the claimant are the increased burdens such a policy would place, in particular, on GPs, and the con-cern expressed on behalf of the medical profession by the British Medical Association that evidence seeking of this sort could interfere with the doctor/patient rela-tionship. Professor Harrington records later in the same chapter:

The British Medical Association, for example, have made it very clear that they do not want to become “guardians of the benefi t system”.

“Work Capability Assessments are carried out by health care professionals working directly for Atos Healthcare who are trained specifi cally to un-dertake this type of work. The claimant’s GP also has a specifi c role in the process, to provide a factu-al report based on information contained within the patient’s medical record. It is not, however, the GP’s role to provide any opinion on the patient’s capabil-ity to work as part of this process. It is vital that these two roles are kept separate and that GPs are not asked to provide opinion on their patient for the purposes of receiving Employment and Support Al-lowance (ESA); doing so could damage the doctor-patient relationship.

69. In response to Professor Harrington’s third re-port, the Government has said this:

45. Recommendation One is that Decision-makers should actively consider the need to seek further

documentary evidence in every claimant’s case. The fi nal decision must be justifi ed if this is not sought. [this is the Evidence Seeking Recommendation ]. This builds on the year one recommendation for De-cision-makers to seek appropriate chosen healthcare professional’s advice [this is the Additional Advice Recommendation ] to ensure all relevant informa-tion is available when coming to a decision on eligi-bility for benefi t. Professor Harrington raised con-cerns in the review that further evidence was often only provided during the reconsideration process and this is a suggestion to help ensure more relevant information is available early in the process.

46. The process could further clarify the need to seek more documentary evidence where it will be relevant, but we are mindful of Prof Harrington’s stated view that such evidence should be provided at the earliest opportunity.

47. We would anticipate that the best way of im-plementing the intent behind this recommendation would be to introduce an additional element in Atos’ process. This would take the form of making ex-plicit the requirement for Healthcare professionals to actively consider further evidence and to include a justifi cation where they decide that further evi-dence would not be necessary. Decision-makers would then ensure that this justifi cation has been provided, and where they question or disagree with a justification, would have the option to request Atos to go back and gather the further evidence that may be required.

48. As with any potential changes in our processes, we need to ensure that the additional resources re-quired in terms of administration and processing times is balanced by a demonstrable impact on the quality of decision-making and customer experi-ence, in order to maintain an appropriate emphasis on the value for money of the process. We will there-fore work on reviewing the implications of any such changes set out above before we can be clear on whether to implement. On that basis the Department supports the intent of the recommendation and pro-visionally accepts the desirability of making appro-priate changes, subject to the caveat that we must fi rst work to ensure it can be implemented in a cost-effective fashion before taking a fi nal decision.

70. In our view, the above citations from Professor Harrington’s third report show that:i) Professor Harrington has concluded that there should be a change from the earlier approach that the onus should be on the claimant to provide all necessary and appropriate information.ii) He considered, but effectively rejected, the adjust-ment sought by the Applicants before making the Evi-dence Seeking Recommendation.iii) The Evidence Seeking Recommendation is different to the adjustment sought by the Applicants and is appli-



cable to claimants who have and do not have MHPs.iv) Paragraph 37 of the third report only fi ts with the evidence summarised above on the approach within the present process in respect of FME, if it is remembered that it applies to other types of evidence. v) The consideration of whether it is necessary to seek further documentary evidence, including FME should start at an early stage of the process and continue throughout.vi) The further documentary evidence referred to covers evidence relating to the claimant from people who know him or her and/or his or her relevant history, and so FME from treating doctors and mental health services who have worked with the claimant.vii) Literally, the justifi cation for not seeking such evi-dence must be given at the time of the fi nal decision, rather than when decisions are made during the process to continue (e.g. to call for an ESA50 or for a face-to-face examination) without seeking further documentary evidence (including FME), but viii) that justifi cation must be on the basis that the DWP decision-maker is of the view that his conclusion on en-titlement and the recommendation of the Atos HCP have been made on a properly informed basis. And so, it would follow that the decision-maker has to justify a conclusion that the additional documentary evidence would not provide useful information to the decision- making process and so “added value” to it, and so to the decisions and recommendations made during it as op-posed to just the fi nal decision on entitlement.

71. The Government’s response to the Evidence Seeking Recommendation:i) Has at least the potential for continuing the dispute concerning the intention underlying the Additional Ad-vice Recommendation and thus the intent that underlies both recommendations, and whether it includes further documentary evidence from treating doctors and men-tal health services who have worked with the claimant. (In our view, as a matter of substance and intention the Evidence Seeking Recommendation does cover this and is not restricted to evidence from independent sources.)ii) Suggests that adoption of the Evidence Seeking Rec-ommendation would be best achieved by an introduc-tion of an additional element into the Atos process (which recognises the points in paragraph 70(vii) and (viii) above) and so, as a change to the present practice, a stage would be added to the present practice of Atos which would require HCPs to consider seeking further documentary evidence (including FME) and, in cases when they do not do so, to include in their report their reasons for not doing so,iii) Recognises that the further documentary evidence should be sought early in the process but does not iden-tify when in the Atos process this would be, and so whether it would be before or after the ESA50 is com-pleted or the claimant attends a face-to-face interview. But, given the medical nature of the issue, if the matter is to be considered in the Atos process this must be done before the HCP makes his or her recommendation.

72. In our view it is plain that, if the Evidence Seeking Recommendation, as we understand it, was accepted and implemented in respect of the obtaining of FME for claimants with MHPs alone, or for all claimants, within the Atos process it would result in signifi cant changes being made to the present approach to seeking FME.

73. The essential change would be that the HCP would have to consider in every claim by, or assess-ment concerning, a claimant with MHPs whether to seek FME and an application of the timing suggested by Professor Harrington would mean that the HCP did this, and reviewed it, from the start to the end of that process and so both before and after the decision that the clamant should be required to complete an ESA50 is made. And so, if it was so implemented, the Evidence Seeking Recommendation would go a long way towards meeting the adjustment sought by the Applicants (i.e. that FME would be called for in every claim where the claimant has a MHP) and would cre-ate something signifi cantly different from the present practice in respect of seeking FME, in respect of claimants with MHPs.

74. At the hearing, we were unclear on (a) whether the SSWP, and so the Government, share our view of the intent and meaning of the Additional Evidence Recommendation, and (b) what steps the DWP is pro-posing to take pursuant to the caveat in paragraph 48 of the Government’s response. Our confusion on this was added to by the SSWP’s response in evidence to the adjustment sought by the Applicants which was as follows:

... The process was changed so that HCPs could is-sue requests to GPs where relevant and appropri-ate, so as to reduce the bureaucratic burden on doctors. The DWP makes guidance available to assist GPs, but the system as it currently works still places a signifi cant burden on them to provide evidence. It would be unreasonable to increase this burden without evidence to demonstrate that a blanket requirement would significantly aid the process by providing relevant additional material.

... Data for October to December 2011, the lat-est data currently available, shows that where FME was requested, it was eventually provided only in around 71% of cases overall. Moreover, even when FME was provided upon request, it was provided within the requested two-week peri-od in only some 37% of cases.

It is likely that if request for FME were in-creased without being targeted by the professional expertise of HCPs to cases where they are most likely to add relevant new information, there would be an increase in the proportion of cases where FME is not provided in response to an Atos request. Moreover, by asking GPs to produce more evidence as a matter of course, without consider-ation of the facts of the particular case, it may rea-sonably be expected that the additional workload



burden would lead to the quality of completed forms being lower.

The financial impact of requiring FME as a matter of course in all cases involving MHPs is diffi cult to estimate without a complex modelling exercise, but in my judgment, if this were required, processing times and administration costs would substantially increase. If, as I believe to be the case, FME is already being requested in cases where it is appropriate, I do not see that these ad-ditional costs and burdens could be justifi ed.

As appears from this, without carrying out work similar to that referred to in the caveat to his response to the Additional Evidence Recommen-dation, the SSWP felt able to make the point that he did not consider that the costs involved in eval-uating the adjustment sought by the Applicants were justifi ed and to reject it outright. Our under-standing of that evidence, and of the SSWP’s sub-missions relating to it, is that one of the reasons for this outright rejection of a consideration of what was being advanced by the Applicants was the as-sertion that “FME is being sought in cases where it is appropriate.”

75. We were mindful of the limited time that the SSWP had had to consider the Additional Evidence Recommendation in the context of these proceedings and therefore sought a further statement from the DWP to set out the SSWP’s position on the detail of the work proposed pursuant to the caveat and an explanation of how the view expressed in his present evidence that “FME is already being requested in cases where it is appropriate” fi ts with the acceptance of the intent of the Additional Evidence Recommendation.

The additional evidence76. As we thought we had made clear at the hearing, before the DWP implements either an adjustment sought by the Applicants or a recommendation such as the Evidence Seeking Recommendation made by Pro-fessor Harrington, we understand why for a number of legal, political and pragmatic reasons it would want to carry out an assessment of the implications, practicali-ties, likely effects and likely costs, of so doing and that would explain the use of the word “provisionally” in the Government’s response we have referred to. We also made it clear that we understood that the Evidence Seeking Recommendation covered evidence other than FME and all claimants and so, adopting a description used in the additional evidence FME for claimants with MHPs is “a subset of further documentary evidence” that may be relevant and so may be sought if the Evi-dence Seeking Recommendation was implemented.

77. What we sought clarifi cation of, was:i) whether the DWP intended to commit to an assess-ment of the implementation of the Evidence Seeking Recommendation which would cover the seeking of FME in respect of claims by persons with MHPs (in-cluding evidence from treating doctors and mental

health services who have worked with the claimant) and thus an assessment of a change or adjustment that would go a long way towards meeting the problems relied on by the Applicants, or ii) whether the DWP was not going to include this in any such assessment for equivalent reasons to those advanced in its evidence and submissions in respect of the adjustment advanced by the Applicants (i.e. it be-lieved that FME was requested where appropriate and the costs of an assessment of what was proposed by the Applicants were not justifi ed).

78. By the additional evidence, the DWP makes it clear that it has started to and will continue with an as-sessment of the Evidence Seeking Recommendation that will encompass FME in respect of claimants with MHPs. The reasons given relate to the DWP’s commit-ment to the assessment and implementation of Professor Harrington’s recommendations (and its his-tory relating to this) and do not expressly comment on:i) its previously asserted belief that “FME is already being requested in cases where it is appropriate”, orii) whether it agrees that such FME includes evidence from treating doctors and mental health services who have worked with the claimant.

But, it must follow from the silence on these points and the inclusion of the subset of FME in respect of claimants with MHPs within its assessment of the Evi-dence Seeking Recommendation that the DWP has not relied on them to limit that assessment. This is so, even though we accept that the further assessment, like the Evidence Seeking Recommendation, is directed to a possible improvement of the whole assessment pro-cess rather than any acceptance that there is any duty under the Equality Act 2010 to make reasonable ad-justments for claimants with MHPs, as the Applicants assert.

79. In many ways this narrows the issues between the parties by changing the position of the SSWP from one where he asserted that claimants with MHPs were not put at a substantial disadvantage by the present practice (which incorporates improvements effected in response to earlier recommendations of Professor Harrington) and so he would not be assessing the in-troduction of changes to that practice in connection with obtaining FME from claimants with MHPs, to a position in which he is now carrying out that assess-ment (amongst other things).

80. But we acknowledge that the Evidence Seeking Recommendation was a late entry into this litigation and that the SSWP:i) maintains his position that the present practice does not found a duty to make reasonable adjustments un-der the Equality Act 2010 and, to support that, he con-tinues to assert that FME is already being requested in respect of claimants with MHPs where it is appropri-ate and so, as we understand it ii) his assessment of the Evidence Seeking Recom-mendation is based only on the continuation of his ap-



proach of considering and implementing Professor Harrington’s recommendations with a view to making improvements.

81. We return later to this additional evidence when considering what would be a reasonable adjustment. As appears from that discussion, we consider, that what the DWP is proposing to do falls well short of an investiga-tion and assessment of the Evidence Seeking Recom-mendation as it applies to obtaining FME from claim-ants with MHPs.

Disability Discrimination under the Equality Act 201082. In interpreting and applying the Equality Act 2010 the courts are required to take into account the Equality Act 2010 Code of Practice (“the Code”).

83. By s. 29(6) of the Equality Act 2010, a person may not, in the exercise of a public function, do any-thing that constitutes discrimination. By s. 21(2) there-of, a person or body (A) discriminates against a dis-abled person (B) if (A) fails to comply with a duty to make reasonable adjustments in relation to that person. A “duty to make reasonable adjustments” applies to a person who exercises a public function (see s. 29(7) Equality Act 2010).

84. Sections 20 and 21 of the Equality Act 2010 pro-vide, as relevant to the proceedings, as follows:

20 Duty to make adjustments(1) Where this Act imposes a duty to make reason-able adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three re-quirements.

(3) The fi rst requirement 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.…

(13) The applicable Schedule is, in relation to the Part of this Act specifi ed in the fi rst column of the Table, the Schedule specifi ed in the second column.

Part of this Act Applicable Schedule

Part 3 (services and public functions)

Schedule 2

21 Failure to comply with duty(1) A failure to comply with the fi rst, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3) A provision of an applicable Schedule which imposes a duty to comply with the fi rst, second or third requirement applies only for the purpose of es-tablishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, ac-cordingly, not actionable by virtue of another provi-sion of this Act or otherwise.

85. The applicable schedule, namely Schedule 2 provides:

SCHEDULE 2Services and public functions: reasonable adjust-ments

Preliminary1. This Schedule applies where a duty to make rea-sonable adjustments is imposed on A by this Part.

The duty2.(1) A must comply with the fi rst, second and third requirements.

(2) For the purposes of this paragraph, the reference in section 20(3), (4) or (5) to a disabled person is to disabled persons generally.

(3) ...

(4) In relation to each requirement, the relevant mat-ter is the provision of the service, or the exercise of the function, by A.

(5) Being placed at a substantial disadvantage in re-lation to the exercise of a function means – (a) if a benefi t is or may be conferred in the exer-cise of the function, being placed at a substantial disadvantage in relation to the conferment of the benefi t, or.(b) if a person is or may be subjected to a detriment in the exercise of the function, suffering an unrea-sonably adverse experience when being subjected to the detriment.

(6) ...

(7) If A is a service-provider, nothing in this para-graph requires A to take a step which would funda-mentally alter – (a) the nature of the service, or.(b) the nature of A’s trade or profession.

(8) If A exercises a public function, nothing in this paragraph requires A to take a step which A has no power to take.

86. By s. 212(1) Equality Act 2010 “substantial” is defi ned as “more than minor or trivial”.



87. Section 136 Equality Act 2010 provides:136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could de-cide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention oc-curred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision. .

(4) The reference to a contravention of this Act in-cludes a reference to a breach of an equality clause or rule.

88. The Equality Act 2010 also provides:113 Proceedings(1) Proceedings relating to a contravention of this Act must be brought in accordance with this Part.

(2) Subsection (1) does not apply to proceedings under Part 1 of the Equality Act 2006.

(3) Subsection (1) does not prevent – (a) a claim for judicial review; (b) proceedings under the Immigration Acts; ...

(4) This section is subject to any express provision of this Act conferring jurisdiction on a court or tribu-nal.

(5) The reference to a contravention of this Act in-cludes a reference to a breach of an equality clause or rule. ...

114(1) A county court or, in Scotland, the sheriff has jurisdiction to determine a claim relating to – (a) contravention of Part 3 (services and public functions); ...

119 Remedies(1) This section applies if a county court or the sher-iff fi nds that there has been a contravention of a pro-vision referred to in section 114(1).

(2) The county court has power to grant any reme-dy which could be granted by the High Court – (a) in proceedings in tort; (b) on a claim for judicial review.

(3) ...

(4) An award of damages may include compensa-tion for injured feelings (whether or not it includes compensation on any other basis)...

89. A number of issues arose in respect of the inter-pretation and application of these provisions of the

Equality Act 2010 though there was inevitably some common ground, including the following:i) the SSWP in designing and implementing the process for assessing eligibility for ESA is exercising a public function,ii) the duty to make reasonable adjustments is owed to disabled people generally (see paragraph 7.19 of the Code),iii) the duty to make reasonable adjustments is an an-ticipatory duty and that is an effect of paragraph 2(2) of Schedule 2 (and see paragraph 7.20-21 of the Code),iv) the duty to make reasonable adjustments is a con-tinuing duty and so it has to be kept under regular re-view in the light of experience and so, in this respect, it is an evolving duty (see paragraph 7.27 of the Code),v) to pass the burden of proof to the SSWP the Appli-cants have to establish the existence of a substantial dis-advantage (i.e. one that is more than minor or trivial) vi) the Applicants must identify an adjustment that has a real prospect of remedying the established disadvantage they rely on in such detail that it informs the SSWP of the case he has to meet and to engage the question and the passing of the burden on whether that adjustment can reasonably be made,vii) a multi-faceted approach has to be taken to deter-mining whether a proposed or possible adjustment is reasonable. The factors to be taken into account should be ones which will or can remove or ameliorate the sub-stantial disadvantage, or may have a chance of doing so, and may include the cost of the steps to be taken and the proper exercise of the provider’s powers.

We agree with this common ground.

90. The statutory test in respect of the duty to make reasonable adjustments (s. 20(3) and Schedule 2) refers to “the relevant matter” which is defi ned by paragraph 2(5) as “the provision of the service or the exercise of the function”. In our view, in designing and implement-ing the process for assessing the eligibility of a claimant for ESA, the SSWP is exercising his statutory function of administering the statutory scheme relating to ESA. It is clear, and common ground, that by so doing a ben-efi t is or may be conferred. That benefi t is the payment of ESA because the claimant is entitled to it under that statutory scheme.

91. If we re-write s 20(3) to introduce the statutory defi nitions with reference to this case, it provides that to establish the existence of the fi rst requirement the ques-tion has to be asked whether:

The present practice of the SSWP in respect of the exercise of his function of designing and imple-menting the process for assessing eligibility for ESA puts disabled persons generally at a disadvan-tage that is more than minor or trivial in relation to the conferment of ESA in comparison with persons who are not disabled?

92. The SSWP argued on the basis of paragraphs 2(5) (a) and (b) of Schedule 2 that in this case we are only concerned with the conferment of a benefi t and



that the different wording of sub-paragraphs (a) and (b) means that the Applicants could not rely on them “suf-fering an unreasonably adverse experience”. We do not agree, because in our view: i) as a matter of language and purposively:

a) the general meaning of “disadvantage” in sub-paragraph (a) should not be cut down, and so the argument that, as Parliament has chosen different words in the two sub-paragraphs, an adverse expe-rience should not be classified as a disadvantage within (a), is unpersuasive, andb) a fl aw in the Secretary of State’s argument is that it is based on a false assumption: that cases must be classifi ed as falling either within (a) or (b),

ii) there may indeed be some functions that are only designed to confer a benefi t and others that are only de-signed to subject a person to a detriment but that is not so for the sort of cases that we are considering. The ESA assessment process may potentially confer a ben-efi t (continuation of entitlement or transfer to the sup-port group) or subject a person to a detriment (termina-tion of entitlement). Paragraph (5) defines “being placed at a substantial disadvantage” and so is directed to what makes a person’s position worse than it need be relative to the potential outcome. The language chosen falls to be applied whether the relevant outcome is a benefi t or a detriment, and a claimant who is ultimately successful can be said to have suffered a detriment by reason of an adverse decision or practice during the de-cision-making process. The issue is whether what has happened is properly within the ordinary meaning of the language used in the defi nition and in taking that approach it is a mistake to try to give primacy to the wording of (a) in order to cut down (b) or vice versa. Rather, they should be read and applied collectively. and when this is done an impediment to a claimant for a social security benefi t may be a disadvantage or an unreasonably adverse experience according to whether or not the claimant is ultimately successful, andiii) the power to grant damages for injured feelings (see s. 119(4)) indicates that Parliament intended that such damages could arise from an adverse experience during the process of establishing an entitlement to a benefi t.

93. The SSWP also argued that the generic claim ad-vanced by the Applicants was not open to them. This argument was based on s. 21(2) and (3), and the points that:i) paragraph 2(2) of Schedule 2 does not apply to sub-section (2), and so s. 21(2) is directed to an individual disabled person,ii) a breach of duty to make a reasonable adjustment is only actionable under s. 21(2) (see s. 21(3)), andiii) the Applicants could not show that the duty to make the alleged reasonable adjustment was breached in their cases because they could not show that it had any im-pact on the conferment of the benefi t on them (i.e. the payment of their entitlement to ESA).

94. In advancing this argument, the example of a duty to make a reasonable adjustment for blind people

by allowing access to premises for guide dogs was ad-vanced. And it was submitted that a blind person who did not use a guide dog could not bring proceedings based on the breach of that duty under s. 21(2) because he could not show that the breach of duty related to him because it does not affect him. We agree with the ex-ample but not with this argument of the SSWP.

95. In bringing a claim under s. 21 what an individu-al claimant has to establish is:i) that there is a failure to comply with the fi rst second or third requirements and so a failure to comply with a duty to make reasonable adjustments, and thenii) that there was a breach of that duty in relation to him.

This is a two stage process.

96. The fi rst stage involves an application of the test set by s. 20(3). It also has two limbs:i) the fi rst is a comparative test by reference to two class-es of persons to establish the existence of a substantial disadvantage (as defi ned). So it is a generic test, andii) the second is directed to whether there are steps that it is reasonable to take to avoid that disadvantage, and so a disadvantage founded on a generic test.

97. At the second stage, the test set by s. 21 and the questions it poses are dependent on:i) the establishment, extent and nature of the duty, and therefore of the reasonable adjustments that have to be made by reference to a class or classes of claimants, and ii) the impact on the individual claimant of the failure to have made them.

And, that impact is not confi ned to the decision on entitlement to, or payment of, the relevant benefi t.

98. So, in this case, the Applicants have to establish:i) by applying a generic test, that the substantial disad-vantage (as defi ned) exists and that the SSWP has a duty to take reasonable steps to avoid it by putting in place a different practice for obtaining FME (the reasonable ad-justment) and if they succeed in doing that, that ii) in their individual cases FME was not sought in ac-cordance with the practice required by that reasonable adjustment.

In our view, the fi rst stage looked at as a whole and the fi rst element of the fi rst stage are free standing and could found declaratory relief.

99. So we therefore reject the argument of the SSWP that the Applicants are precluded from advancing their generic claim. Indeed, in our view that is the approach required at the fi rst stage of a claim by an individual.

100. Further, and in any event, this is a claim for judi-cial review. It was not argued that the Applicants did not have a suffi cient interest to bring a claim for judicial re-view. Also, in our view, although they have not brought proceedings for judicial review the Charity Interveners would be able to establish that they had suffi cient inter-ests to do so. But, as they are not individuals, they could



not satisfy s. 21(2) and so, if proceedings for judicial re-view are covered by s.21(3), they would be precluded from bringing such proceedings. Indeed, if the argument of the SSWP is right, a claim for judicial review relating to the duty to make reasonable adjustments could only be brought by an individual who could also rely on s. 21(2). In our view: i) this would be a very strange result and one that would fl y in the face of the underlying purpose of the Equality Act 2010 having particular regard to:

a) the subject matter of the Equality Act 2010, and b) the exclusion of “a claim for judicial review” from the mandatory terms of s. 113(1) (albeit that the county court is given the power to grant any remedy that the High Court could grant on “a claim for judicial review” (see s. 119(2)), and

ii) that view relating to the underlying purpose of the Equality Act 2010 points strongly to the conclusion we have reached.

That conclusion is that a claim for judicial review brought by an individual or by a trust, or body in respect of a failure to make reasonable adjustments by a body carrying out a public function is not precluded by s. 21(3) because such a claim is not, or is not to be regard-ed in the context of the Equality Act 2010 as, an action.

101. As appears later in this judgment when we dis-cuss remedy, at the second stage of a claim by an indi-vidual applicant issues may arise as to the date on which the duty to make a reasonable adjustment arises. This is because it may be that there should be further assess-ment of what changes would be “reasonable”. However, these issues do not preclude a declaration being made that the generic test set by s. 20(3) is satisfi ed.

102. Also, at the second stage individual applicants could establish a breach of duty on the basis that FME was not sought in accordance with the adjustment that should have been made and could do this without showing that the breach of duty had an effect on the conferment of the benefi t (i.e. the establishment of their entitlement to ESA). But, if they cannot show this ef-fect, it may mean that they can claim no, or only re-duced damages (e.g. for distress and injured feelings). But, if that was the case, they could still seek a declara-tion that there was a breach of duty in relation to them as individuals. Equally, the points that under the exist-ing practice FME should have been sought in MM’s case, or should be sought in DM’s case, do not mean that they could not show a breach of duty because they would be relying on the non-existence of a different practice for seeking FME.

103. So, in our view, the arguments of the SSWP in respect of the impact of the way in which FME should have been sought and was sought or obtained in the cases of the two Applicants go to whether, as they as-sert, persons with MHPs are put at a substantial disad-vantage by the existing practice of the SSWP, and do not preclude the Applicants from advancing their ge-neric claims.

104. The parties also differed on the comparisons that fall to be made under s. 20(3) and Schedule 2 and thus in assessing whether a practice of A’s:

puts disabled persons generally at a disadvantage that is more than minor or trivial in relation to a relevant matter in comparison with persons who are not disabled.

105. In our view, it was correctly common ground that the Equality Act 2010 was clearly intended to apply to matters that were only available to disabled people and thus to matters that would never concern, be used by, or be the subject of a claim for a benefi t by, persons who were not disabled (or not disabled in the relevant way). One of the purposes of the Equality Act 2010 is to remove, as far as reasonably possible, the impediments experienced by those with disabilities in accessing public functions. This purpose would be thwarted if the Act required comparison only with per-sons who have no disabilities and who would, there-fore, not properly seek to access the public function.

106. Further, in our view, it was correctly common ground that the statutory phrase “disabled persons gen-erally” introduced into the section by paragraph 2(2) of Schedule 2 does not mean that the impact of a prac-tice on a class of disabled people (e.g. blind or deaf people and here people with MHPs) cannot be taken into account. If this was not so, an obvious underlying purpose of the Equality Act 2010 to cater for, and to put in place a duty to make differing reasonable ad-justments for, people suffering from different physical and mental disablements would be thwarted. So, it seems to us that for the purposes of s. 20(3) and para-graph 2(2) of Schedule 2 “disabled persons” has to be so interpreted and defi ned, and that this can be done, and generally will have to be done, by reference to a type or types of disablement.

107. On that basis, in our view, it is natural to read the statutory phrase “persons who are not disabled” to include “persons who are not so disabled” and so to cover both “persons who are not disabled or are not so disabled”.

Statistics108. In their claim form and opening submissions the Applicants placed considerable weight on the statistics concerning the percentage success rate of appeals to the FtT. By the end of the hearing, in our view cor-rectly, their counsel resiled from that position. The SSWP made a number of points as to why the Appli-cants were wrong to regard the statistics as a striking piece of evidence and to place such weight on them. But, then inconsistently the SSWP sought to rely on them to found arguments relating to what he asserted was the generalised and generic evidence of the Char-ity Interveners and to demonstrate that claimants with MHPs were not put at a substantial disadvantage when compared with other claimants (i.e. those who do not have MHPs).



109. In summary, the statistics relied on were that:i) Of the 168,000 ESA appeals handled in 2011/12 122,500 (or 73%) were dealt with by way of an oral hearing at the First-tier Tribunal. The remainder were determined on the papers.ii) In 2011/12, 39% of ESA appeals that were dealt with at a tribunal hearing were successful. This increased to 42% in the fi rst quarter of 2012/13. iii) Between October 2008 and August 2011, the DWP made over 1.1 million decisions on new ESA claims following a WCA. 687,000 claimants (approximately 60% of 1.1m) were found “fi t for work”. Some 272,000 appeals had been heard against those “fi t for work” de-cisions by July 2012, with the tribunal overturning the DWP decision in 102,000 cases (15% of the 687,000 “fi t to work” decisions made).iv) Data from all claims between October 2008 and May 2011 shows that, closely in line with the average success rate of 38%, 41% of appeals brought by a claimant with a MHP were successful. By contrast, 45% of appeals were successful in cases where the claimant had cancer and 48% in cases involving diseases of the nervous system.

110. At fi rst sight these success rates on appeals read alone, or in the context of the total number of decisions made by the DWP, can be said to support the view that the success rate is high and that this indicates that some-thing is wrong with the process and claimants are put at a disadvantage by it. But, in our view, the SSWP was right when rebutting this approach by the Applicants to point out that the signifi cance of these fi gures should not be overstated. Indeed, we go further and hold that without further analysis they are of no real relevance.

111. The evidence as to why appeals succeed is limit-ed and is based on a pilot study with FtT judges. In our view, that limited evidence supports the conclusion one would expect, namely that the nature of the relevant tests and an appeal procedure under which the FtT makes its own decisions on the facts means that there is ample scope for two decision-makers applying the cor-rect legal approach to reach different decisions even if, at the appeal stage, there is no additional evidence. This prospect is increased when it is remembered that claim-ants and others can, and often do, make different im-pressions on different assessors and decision-makers. It seems to us that when this is taken into account it can-not be said that the success rates are high and so that they demonstrate generic or specifi c failings in the DWP decision-making process. Indeed, it might be said that they indicate that in the application of the tests that in-volve value judgments, the overall system provides ap-propriate safeguards, checks and balances in the deter-mination of a claimant’s entitlement to ESA.

112. A focus of the legal argument on the comparisons to be made was on the application of the statistics. As we have set out, our conclusion on those arguments is that the comparison can be with persons who are not disabled or not so disabled. The latter is the comparison that the SSWP seeks to make in reliance on the statistics.

113. We do not accept the SSWP’s argument that the statistics show or support the view that claimants with MHPs are not put at a substantial (more than minor or trivial) disadvantage because, applying that comparison, the successful appeal rates are similar and so the present practice (i) treats both classes equally well or badly, and so (ii) does not disadvantage either. The essential reason for this is that the reasons for success are not known and they may relate to different aspects of the practice relat-ing to the application of the statutory tests and the fac-tual and value judgments they involve. This means that if the statistics could be further analysed they would still show that the success rate for different classes of claim-ants are effectively the same, but that this result is based on different aspects of the practice relating to the assess-ment of entitlement for different classes. We have men-tioned earlier (paragraph 56 above) that by the time an appeal reaches the FtT, the experience of the Upper Tribunal judges on this tribunal is that claimants – whether or not they have MHPs – will regularly have produced FME or medically related evidence but this experience does not provide a base for differentiating between claimants with and without MHPs or between the impact of FME as between classes of claim or in re-spect of claimants with different MHPs.

114. So, in our view, the statistics and the limited ev-idence relating to why appeals were allowed, simply do not provide material upon which the impact on the success rate of appeals by claimants with MHPs and that for other claimants, of the present practice relating to obtaining FME and any change thereto can sensibly be based. The same can be said if the comparison is with persons who do not suffer from any disability and in that comparison there would be the added problem that the comparators could never properly make a claim for ESA.

115. So, in our view, any reliance by the parties on the statistics leads to speculation and so none of their cases are advanced by them.

The Applicants’ evidence and evidence relating to other individual claimants116. This evidence from the Applicants and other claimants was advanced to support the view that the present practice relating to obtaining FME for claimants with MHPs puts them at a disadvantage. It was not dis-puted that that is what the witnesses believed but the SSWP put in evidence from the relevant DWP decision-makers and an analysis of their cases to show that they do not show that the approach taken to obtaining FME had any impact on the decisions that were made on en-titlement.

117. In respect of the Applicants the point was cor-rectly made that under the present practice FME should have been sought in MM’s case, and should be sought in DM’s case. Subject to the point that the adjustment proposed by the Applicants would have prevented that error (or reduced the likelihood that it would be made)



in MM’s case, and will avoid it (or make it less likely) in DM’s case, it follows that any disadvantage fl owing from that mistake relates to the application of the pres-ent practice or system rather than a defect in the practice or system itself. Also, it was argued by the SSWP that these cases, and those of the other claimants relied on, do not establish that the approach taken to FME in them was an effective cause of problems in, or of the claim-ants’ dissatisfaction with, the decision-making process, and decisions made during it.

118. There is force in the individual analyses ad-vanced by the SSWP but in our view they do not under-mine the conclusions reached on a general approach (to which we turn below) or themselves found the view in the individual cases that if FME had been sought in ac-cordance the adjustment suggested by the Applicants this would not have made a difference that removed a substantial disadvantage (as defi ned).

119. Inevitably this analysis and evidence is based in part on hypothesis (i.e. what would have happened or what would I have done) if FME had been sought at an early stage. And to properly assess what would have happened the range of possibilities as to what the FME might have said has to be factored in. Albeit that the ac-tual DWP decision-makers have given evidence on what they think would have happened we are not persuaded that their evidence and the analysis advanced by the SSWP rules out (on a balance of probabilities) that if helpful and informative FME had been obtained, at an early stage, it would not have made a difference to the decisions made, or to the decision-making process, or to the experience (and reaction) thereto of the claimants that was more than minimal or trivial. The last of those possibilities is based on our rejection of the SSWP’s ar-gument on the meaning and application of paragraph 2(5)(a) and (b) of Schedule 2 of the Equality Act 2010 (see paragraph 92 above) and was not the focus of the SSWP’s evidence and analysis, or that of the claimants.

120. The statistics are based on a much larger amount of claims but our views on this evidence put forward by the Applicants and the DWP’s response thereto apply to reduce even further the assistance that, for present pur-poses, can be gained from the statistics.

121. However, we accept that the evidence and analy-sis relied on by the SSWP does show that the Applicants have not provided specifi c examples of cases in which it is established (on the balance of probabilities) that the present practice relating to obtaining FME from claim-ants with MHPs has put that claimant at a substantial disadvantage (as defi ned).

The evidence put in by the Charity Interveners122. This consists of witness statements and reports from policy makers and medical professionals, together with exhibits. The evidence put in by the Applicants contains similar assertions from the viewpoints of indi-vidual claimants.

123. The SSWP asserts that the evidence of the Charity Interveners only supports a series of generic broad and generalised assertions as to diffi culties that it is alleged claimants with MHPs suffer, or might suffer, and that the SSWP cannot respond to that evidence in the absence of proper information on the particular cases relied on (de-tails or examples of which, so far as we know, were not sought by the SSWP). We do not agree because: i) We have rejected the SSWP’s argument that a gener-ic claim advanced by the Applicants was not open to them (or the Interveners). Indeed, in our view, s. 20(3) sets a generic test (see paragraphs 93 to 100 above). ii) No sub-division or re-categorisation of the class chosen, namely claimants with MHPs, was suggested. iii) The witnesses have considerable and relevant ex-perience, and their statements and reports are based on that experience and are well reasoned.iv) Although this evidence goes further than, it accords with, the recognition contained in Professor Har-rington’s reports and the SSWP’s evidence in this case, of specifi c vulnerabilities and diffi culties experienced by claimants with MHPs because of their MHPs in the present decision-making and assessment process, and what any reasonably informed person would expect.v) The SSWP’s analysis of the examples advanced by the Applicants of the impact that FME would have had in those cases does not undermine the reasoning based on relevant knowledge and experience and so the conclusions reached and asserted in the Charity Interveners’ evidence.vi) It would have been open to the SSWP to seek to challenge such evidence with evidence from other ap-propriately qualifi ed persons with or without reference to detailed case studies, but he chose not to do so.

124. In our judgment, the Charity Interveners’ evi-dence, properly focuses on a relevant issue, namely the effects of MHPs generally, and does so, on the basis of the wide and appropriately varied experience and ex-pertise of the witnesses. Those effects identify the prob-lems that claimants with MHPs experience, as a class. We acknowledge that the class chosen is a wide one and that many persons with MHPs do not make claims for ESA and would not be entitled to it if they did. We return to the impact of the class being a wide one. But, at this stage, its primary relevance is that (a) the identi-fi cation of problems by reference to it does not mean that all claimants with MHPs have those problems, and (b) any individual member of the class may have one or more of those problems.

125. On that generic approach, in our judgment, the Charity Interveners’ evidence establishes and we fi nd that, as they and the Applicants assert:i) in terms of fi lling out a form, seeking additional evi-dence and answering questions, claimants with MHPs as a class have the following problems and diffi culties because of their MHPs, some of which overlap:

a) insuffi cient appreciation of their condition to an-swer questions on the ESA50 correctly without help,b) failure to self-report because of lack of insight into their condition,



c) inability to self-report because of diffi culties with social interaction and expression,d) inability to self-report because they are confused by their symptoms,e) inability because of their condition to describe its effects properly,f) diffi culty in concentrating and in understanding the questions asked,g) unwillingness to self-report because of shame or fear of discrimination, h) failure to understand the need for additional evi-dence because of cognitive diffi culties,i) problems with self-motivation because of anxiety and depression which may prevent them approach-ing professionals for help and assistance,j) false expectation that conditions will be under-stood without them needing additional help, andk) lack of understanding that professionals named in the form will not automatically be contacted in the assessment process.

ii) in terms of further aspects of the process for the de-termination of their entitlement to ESA, claimants with MHPs as a class have or have to face the following problems and diffi culties because of their MHPs:

a) particular conditions (e.g. agoraphobia and panic attacks and autism spectrum disorder) make attend-ing and/or travelling to a face-to-face assessment diffi cult,b) fi nding the process itself intimidating and stress-ful, and, in some cases, that having a long-lasting negative effect on their condition,c) a desire to understate conditions,d) the masking of health problems as physical problems,e) dealing with assessors who have little or no expe-rience of mental health problems,f) the diffi culties of identifying many symptoms of a condition and its impact on what a person needs without proper training and knowledge,g) the lack of time during a short assessment to identify a person’s needs,h) fl uctuation in condition, andi) scepticism about the condition.

The fi rst statutory question posed by s. 20(3) – are claimants with MHPs presently placed at a substantial disadvantage?126 . As we have acknowledged earlier, the SSWP asserts that the present practice (which incorporates improvements effected in response to earlier recom-mendations of Professor Harrington) caters adequate-ly for claimants with MHPs and so does not put them at a substantial disadvantage. So starting points for a consideration of whether such claimants are presently placed at a substantial disadvantage are:i) the present practice (see paragraphs 40 to 54 above), andii) the point that the Applicants have not provided spe-cifi c examples of cases in which it is established (on the balance of probabilities) that the present practice relat-ing to obtaining FME from claimants with MHPs has

put such a claimant at a substantial disadvantage (see paragraphs 116 to 121 above) and so the point that the Applicants base their argument oniii) the problems and diffi culties (“the Diffi culties”) es-tablished by the evidence of the Charity Interveners (and the Applicants’ evidence to the same effect) set out in paragraph 125 above.

127. In our judgment, the existence of the Diffi culties (established and described by reference to a wide class) does not of itself answer the relevant statutory ques-tions. Rather, in the absence of direct evidence based on particular cases, the Diffi culties are factors to be taken into account in, and so are building blocks in, the rea-soning process to determine whether the generic test posed by s. 20(3) is satisfi ed.

128. The Difficulties are specifically linked to the defi nition of the class (i.e. claimants with MHPs) as they arise because of MHPs. As we have mentioned, no point was taken that this class was too vague or too wide or had too many sub-categories to be appropri-ate. And it would have been diffi cult for the SSWP, and the other parties, to take this point given its use in the present guidance and practice of the DWP and by Professor Harrington.

129. From the starting points of that defi nition of the class and the linkage of the Diffi culties to it, it does not matter whether the effects of the Diffi culties on the class of claimants with MHPs is compared with the position of the class of claimants who are not so disabled (and so do not have MHPs) or persons who are not disabled (and so could not properly claim ESA). This is because those two classes of persons do not have MHPs and so diffi culties caused by them.

130. Other claimants, who are not so disabled and so do not have MHPs, may or may not have similar diffi -culties and problems but if, and to the extent that, they do their cause will be different and there is no evidence before us that they have the same or similar problems to any signifi cant degree. Further, the utility and effect of FME in respect of a class of claimants without MHPs give rise to a different overall question and dif-ferent issues relating to improvements in decision-making that might arise from changes in the approach taken to obtaining FME, even though the analysis of that question and those issues would overlap with that taken below.

131. Logically, the first statutory question (namely whether the relevant individual, or as here class of per-sons, are put at substantial disadvantage (as defi ned) by the relevant practice) is approached by identifying the effects or likely effects of the problems suffered by that person or class of persons on the ways in which the practice operates. Applying that approach here it gives rise to the following question, in respect of claimants with MHPs (and so a class of claimants who have the Diffi culties because of their MHPs), namely:



Do the Diffi culties mean that they (as a class) are put at a substantial disadvantage (as defined) by the present practice of the DWP towards obtaining FME in the assessment of their entitlement to ESA?

And, writing in the statutory definitions, as we have interpreted them this question reads:

Do the Diffi culties mean that they (as a class):(i) are placed at a disadvantage that is more than minor or trivial in relation to the conferment of a benefi t, or (ii) suffer an unreasonably adverse experience when being subjected to a detriment (e.g. by rea-sons of an adverse decision or practice during the decision-making process) by the present practice of the DWP towards obtain-ing FME in the assessment of their entitlement to ESA?

132. In our view the answer to this question is “yes”. Our reasons for this conclusion follow.

133. During the hearing we posed the general ques-tion whether accurate and appropriately directed FME would be likely to add value to the decision-making process concerning claimants with MHPs by making the Atos HCP and the DWP decision-maker better in-formed. We think that on a generic approach by refer-ence to claimants who have MHPs the answer must be “yes” although we acknowledge that in some cases it would only be confi rmatory of a view already formed by an HCP or DWP decision-maker, or for other rea-sons of little or no added value. We return to this qualifi -cation when considering what steps it is reasonable for the SSWP to take.

134. The essential reason for this conclusion on the likely effect of FME is that the nature of the Diffi culties and their cause are such that, in our view, it is plain that FME would add value to the decision-making process on many claims by claimants who have those diffi cul-ties, because properly directed FME would provide in-formation that would remove or reduce the impact of the Diffi culties. For example, it is likely that this would be so in many cases where, as the Applicants assert, a claimant with MHPs:i) has diffi culties, or particular diffi culties with insight into, and self-reporting his or her condition,ii) suffers from complex, fl uctuating and often hidden problems that have an impact on his or her capability for work,iii) has particular vulnerability in respect of the stresses involved in getting to, and during, a face-to-face assess-ment, oriv) has an inability to understand the need for medical evidence.

135. The next question is therefore whether under the present practice that value added is appropriately pro-vided as the SSWP asserts. In our view, the answer is that it is not.

136. The present practice is summarised at paragraphs 48 to 54 above. As appears therefrom, it is only in a very few cases that it provides for FME to be obtained be-fore:i) the claimant is required to complete an ESA50, andii) the claimant is required to attend a face-to-face ex-amination / assessment.

And, after those stages, the steps taken because of the recognition that claimants with MHPs have vulner-abilities and problems do not include a practice as to when FME should be sought, although we understand that, as a matter of discretion, it might be sought at those stages in a few cases.

137. The Diffi culties have an obvious connection with the fi rst two stages of the process and, if they are not ad-dressed and thereby avoided or reduced at those stages, they will continue to have an impact. They also have a particular impact on the non-functional tests and the present practice does not address how and when FME should be sought in those cases, which we accept are likely to be only a small number in percentage terms.

138. In our judgment, the present practice relating to FME, has the result that in a significant number of claims by claimants with MHPs the existence and im-pact of the Diffi culties result in those claimants, and thus that class of claimants, being placed at a disadvan-tage that is more than minor or trivial and/or suffering an unreasonably adverse experience: i) by being required to complete an ESA50 when this is not needed,ii) in the completion of the ESA50, iii) by being required to attend a face-to-face examina-tion / assessment when this is not needed, iv) during a face-to-face examination / assessment, andv) during the final decision-making process and the communication of that decision by the DWP decision-maker.

139. In our judgment, if appropriately directed FME was made available earlier in the decision-making pro-cess in respect of claims by claimants with MHPs, it is likely that, in a signifi cant number of such claims: i) the HCP would be better informed before requiring an ESA50 and at the face-to-face to examination / assess-ment, with the result that the decision-making process in respect of the class, and the way in which it is per-ceived by claimants with MHPs as a class, would be improved because the Diffi culties would be better ad-dressed and so avoided or reduced, and ii) the DWP decision-maker would also be better in-formed in his or her assessment of the claim, the recom-mendations of the Atos HCP and his or her approach to the acknowledged vulnerabilities and difficulties of claimants with MHPs as a class and so individuals with-in it.

140. The point made earlier that the experience of the two Upper Tribunal judges on this tribunal that FME is regularly produced for an appeal to the FtT (whether or



not the claimant has MHPs) points to the conclusion that it can add value to the decision-making process at each of its stages and how that process is perceived. Indeed, it seems to us that this is obvious in respect of many claims by persons with MHPs when the grounds for entitlement to ESA and the Diffi culties are remem-bered.

141. We do not accept the argument advanced by the SSWP that this is not so because the main tests for ESA are functional. Of course they are but, particularly where the claimant has MHPs, a full and proper understanding of the condition and the diffi culties it gives rise to plain-ly informs how the claimant functions. Accordingly, ap-propriately directed FME will often be important to in-form (and in some cases to confi rm) views of the HCP and the DWP decision-maker on relevant (and some-times critical) factors in assessing the claimant’s func-tional capability. So, we accept the Applicants’ submis-sions that the dichotomy that the DWP seeks to draw in its evidence between diagnosis and treatment and as-sessment for ESA and its reliance on it to support the view that FME is appropriately sought under the pres-ent practice is unconvincing.

The second statutory question posed by s. 20(3) - are there steps that it is reasonable for the SSWP to take to avoid the substantial disadvantage? And the relief to be granted142. As we have mentioned earlier, it was common ground that a number of factors fall to be taken into ac-count in determining what steps it is reasonable for a provider to take to avoid a substantial disadvantage (see paragraph 89(vii) above).

143. The relief to be granted. We also acknowledge that the court and not the DWP is the ultimate statutory decision-maker under the Equality Act and so the judi-cial review approach of remitting the decision to the rel-evant statutory decision-maker is not appropriate.

144. It was argued that, as in a claim in the County Court, on the evidence before us we should make a fi nd-ing on what the reasonable adjustment should be and order the SSWP to implement it. We accept that we could do this on this claim for judicial review and that in many cases this is what the county court and the judi-cial review court, as the decision-maker under the Equality Act 2010, can and should do.

145. But, in our judgment, it is also open to the court to adjourn to obtain more evidence to determine what is or is not reasonable and that this may often be the ap-propriate course for it to take before deciding what steps it should order the provider to take in performance of the statutory duty, to make reasonable adjustments.

146. Further, it seems to us that where, as here, the practice relates to the administration and implementa-tion by a Government Department of a statutory scheme the concept of what is or is not reasonable engages wide

ranging issues that introduce the need for a proper as-sessment of how a substantial disadvantage should be addressed in performance of both the duty under the Equality Act 2010 and the proper exercise of the func-tions and powers of the Government Department, in-cluding the proper expenditure of public money having regard to budgetary resources. The adversarial court process is unlikely to be the most suitable process for performing the relevant assessments and evidence gath-ering exercises and so it is likely that in many cases this should initially be done by the Government Department in a way that is directed by the court to address the alter-native steps that the court has concluded should be fur-ther investigated and assessed.

147. Such an assessment might be classifi ed as either:i) a fi rst stage of the steps that it is reasonable for the provider to take in the performance of its duty to make reasonable adjustments, or ii) a part of the court’s process of obtaining evidence that enables it to order, on a properly informed basis and with appropriate particularity, what reasonable steps should have been, or are to be, taken in performance of the duty to make reasonable adjustments.

This classifi cation issue may be relevant to the ques-tion whether there is or is not an existing breach of duty and/or the amount of any damages claim. It was not raised before us and we express no opinion on it at this stage

148. Reasonable adjustments. By the end of the hearing:i) the Applicants’ primary case remained that FME should always sought at an early stage in the process of the assessment of the entitlement to ESA of claimants with MHPs, and ii) their secondary case was that the Evidence Seeking Recommendation should be applied to claimants with MHPs.

149. The essential difference between the Applicant’s primary case and our understanding of the Evidence Seeking Recommendation (see paragraphs 70( v) to (viii), 72 and 73 above) is that in the latter, if it was not volunteered, FME would only be introduced as a result of a request made by a DWP decision-maker or an Atos HCP but, if no such request was made, this must be jus-tifi ed.

150. The Applicants’ primary submission mirrored the argument that the Charity Interveners had put to Professor Harrington and which he rejected. We accept that we are not in any way bound by that conclusion of Professor Harrington, that we do not know all of his rea-soning concerning it and we should decide this issue on the evidence before us (or to be put before us).

151. However, our view accords with that reached by Professor Harrington and it is that at this stage it would not be reasonable to require the SSWP to introduce such a practice.



152. We acknowledge the points that (a) prior to Professor Harrington’s third report the SSWP’s stance was that the DWP was not going to embark on any as-sessment such as that described in the Government’s re-sponse to the Evidence Seeking Recommendation, and (b) the DWP had not put forward with any particularity any cost or practical reason why the adjustment sought by the Applicants could not, or should not, be imple-mented. But this stance was in large measure based on the SSWP’s stance that there was no substantial disad-vantage caused by the present practice, and in our view, it does not obviate the need for us to consider a proper assessment of the impact of implementing a practice that FME is sought in every case before we can deter-mine whether it is reasonable.

153. So, the question for us is whether, at this stage, we should direct that such an assessment is made. We have concluded that we should not.

154. Our main reason for this returns us to the generic approach to the establishment of the duty, the width of the class used in that exercise and the points that:i) many claimants within it will not experience the Dif-fi culties to the same degree as others (or in some cases at all ), andii) Atos HCPs, DWP decision-makers and tribunal members will be well aware of the symptoms and ef-fects of many diagnoses of MHPs.

155. When determining what would be a reasonable adjustment to be made in respect of the class, these points establish a need to consider the likely impact of obtaining FME in all as opposed to some cases. That founds an assessment of the likely number of cases in the class in which FME will only be confi rmatory of what the HCP and the DWP decision-maker know from the diagnosis and other information mentioned in the ESA50 and the “fi t note” or, for other reasons, will be of little or no assistance to them in the decision-making process.

156. The experience of the two Upper Tribunal judges on this Tribunal and our view, on the present evidence relating to individuals and the wide class of claimants with MHPs, is that the diversity of the problems suf-fered by claimants with MHPs and their impact on indi-vidual claimants are such that:i) it is likely that this will be the case in a signifi cant number of claims, with the result that the time, cost and effort of providing FME in those cases would not be reasonable, andii) the approach taken by the Evidence Seeking Recom-mendation is more likely to effectively target the signifi -cant balance of the claims within the class in which FME will be likely to add real value to the decision-making process.

157. It seems to us that the most appropriate and rea-sonable way of testing those views on the impact of FME on individual members of the class used to estab-

lish the signifi cant disadvantage would be to assess and trial an adjustment along the lines of the Evidence Seeking Recommendation.

158. Further, if FME was to be provided in respect of every claimant with MHPs issues arise as to how and when and from whom the FME should be sought. The focus and content of the “fi t note” is a factor that under-lies the adjustment sought by the Applicants but, as they accepted, it gives rise to issues concerning how the FME should be sought in every case and so, for exam-ple, what form should be used for it and what guidance should be given about it that will appropriately focus the FME, and thereby maximise the value added that it pro-vides to the ESA decision-making process. This in turn introduces the problems relating to the role of GPs re-ferred to by Professor Harrington (see the citation in paragraph 68 above).

159. In our view, those issues and more generally is-sues relating to the proper expenditure of public money and the application of public resources support our con-clusion that, at this stage, the introduction of the adjust-ment primarily sought by the Applicants would be pre-mature and so unreasonable because, in our view, a possible change to a practice that provides for FME to be requested by the persons assessing and deciding the entitlement, should be assessed and trialled fi rst.

160. In reaching this conclusion we have not forgotten the Applicants’ point that an automatic provision of FME in every case would avoid mistakes such as that in MM’s case being made and/or assessors and decision-makers not seeking FME when it would be helpful. But, in our view, the proof of that pudding will be in the eat-ing.

161. An adjustment along the lines of the Evidence Seeking Recommendation would require Atos HCPs and DWP decision-makers to consider whether FME should be sought and to identify its content or explain why it is not needed. This approach would fi t with the statutory scheme, and would reduce the burden on the providers of FME and assist them by identifying what is sought in the given case.

162. An adjustment that introduces a change in prac-tice along the lines suggested by the Evidence Seeking Recommendation The additional evidence indicates that the DWP does not share our view as to the meaning and intent behind the Evidence Seeking Recommendation.

163. Firstly, we agree, as that evidence and the Government’s response indicate, that if the present roles of Atos and the DWP are maintained, it would be sensible for the reasonable additional element to the practice to be introduced into the Atos process. Indeed, if as the DWP recognises the intent of the recommen-dation is that the further documentary evidence (and so for our purposes FME) is to be provided at the earliest opportunity, this method of change would have to be



adopted, unless a DWP decision-maker (pursuant to Regulations 21 and 36 or otherwise) was required to consider whether FME should be sought before the case is referred to Atos and/or a questionnaire was to be completed. We also agree with the DWP that there is much to be said for an HCP, as part of his or her assess-ment, being the first person on the DWP side of the process considering this issue and making the request, as this will have the results that it is from an HCP to a doctor or person involved in providing treatment and help to a claimant with MHPs, and that the approach fi ts with the division of roles between the Atos HCP and the DWP decision-maker. We are therefore puzzled why the DWP thought it appropriate to make the point that what it is proposing in respect of the implementa-tion of the Evidence Seeking Recommendation goes beyond its strict terms because Professor Harrington refers only to decision-makers. Further, on our under-standing of the Evidence Seeking Recommendation, the DWP decision-maker would have to check back over the process, including the decision of the Atos HCP on requesting FME (see paragraph 70(v), (vii) and (viii) above).

164. Secondly, and more important, is the description given by the DWP in the additional evidence of what it is currently considering to implement the policy intent of the Evidence Seeking Recommendation because this only introduces new steps, concerning the obtaining of FME:i) after the face-to-face examination by the Atos HCP, and laterii) by the DWP decision-maker after the recommenda-tion has been made by the Atos HCP.So, before those stages in the process, the DWP is sug-gesting that the ability of a claimant with MHPs to vol-unteer FME with (or before) the ESA50 and the present practice relating to requesting FME in only a very few cases before calling for a face-to-face assessment should not be changed.

165. In our view, this approach of the DWP fl ies in the face of: i) the signifi cant change by Professor Harrington from the earlier approach that the onus should be on the claimant to provide all necessary and appropriate infor-mation, that underlies the Evidence Seeking Recom-mendation, ii) the point recognised by the DWP, that the further evi-dence (including FME) should be provided at the earli-est opportunity, andiii) the point that, given the unique circumstances of their condition, particular care should be taken with claimants with MHPs,and so seeks to cling to the existing practice rather than adopting and addressing Professor Harrington’s Evi-dence Seeking Recommendation, whether it is inter-preted literally or purposefully.

166. More importantly for our purposes, this approach by the DWP does not address the Diffi culties at the fi rst

three stages of the decision-making process, namely (i) the request that an ESA50 be completed, (ii) the deci-sion to call the claimant for a face-to-face examination / assessment, and (iii) the face-to-face examination / as-sessment. So it does not address:i) the consequences set out in paragraphs 52 and 53 above namely:

The consequence of this is that the relevant deci-sion-maker (and the practice is that this will be the Atos HCP) will only be able to take FME into account when making these two decisions and at the face-to-face examination / assessment:(i) if, by then it has been volunteered, or(ii) the claim is one of the few in which it will be requested by or on behalf of the DWP.So, in most claims the ways in which the recog-nised unique vulnerabilities and difficulties of claimants with MHPs are addressed, under the present practice, relate to (a) a failure to attend and attendance at the face-to-face assessment (see paragraphs 45 and 46 above), and (b) a checking process if a claim is refused (see paragraph 47 above). And, those aspects of the present practice do not include provisions as to when FME should be sought, although we understand that as a mat-ter of discretion it might be sought at those stages in a few cases.

ii) the Difficulties, (see paragraphs 125 and 126(ii) above), andiii) the substantial disadvantages we have found to exist (see paragraphs 138 and 139 above) where we said:

In our judgment, the present practice relating to FME, has the result that in a signifi cant number of claims by claimants with MHPs the existence and impact of the Diffi culties result in those claimants, and thus that class of claimants, being placed at a disadvantage that is more than minor or trivial and/or suffering an unreasonably adverse experience: i) by being required to complete an ESA50 when this is not needed,ii) in the completion of the ESA50, iii) by being required to attend a face-to-face exami-nation / assessment when this is not needed, iv) during a face-to-face examination / assessment, andv) during the fi nal decision-making process and the communication of that decision by the DWP deci-sion-maker.

In our judgment, if appropriately directed FME was made available earlier in the decision-making process in respect of claims by claimants with MHPs, it is likely that, in a signifi cant number of such claims: i) the HCP would be better informed before requir-ing an ESA50 and at the face-to-face to examina-tion / assessment, with the result that the decision-making process in respect of the class, and the way in which it is perceived by claimants with MHPs as a class, would be improved because the Diffi culties would be better addressed and so avoided or re-duced, and



ii) the DWP decision-maker would also be better informed in his or her assessment of the claim, the recommendations of the Atos HCP and his or her approach to the acknowledged vulnerabilities and diffi culties of claimants with MHPs as a class and so individuals within it.

167. Accordingly, in our view the present approach by the DWP to the assessment and implementation of the Evidence Seeking Recommendation falls short of what is required to assess and implement reasonable steps to avoid the substantial disadvantages we have found to exist.

168. We have concluded that before we make a fi nal determination and order as to the reasonable steps the SSWP should have taken or is to take to avoid the sub-stantial disadvantages we have found to exist, the SSWP should be directed to carry out an investigation / assess-ment within a defined time as to how the Evidence Seeking Recommendation, as we understand it (see paragraphs 70(v) to (viii), 72 and 73 above) could be implemented. Without it, we are not in a position to reach a properly informed decision, with suffi cient par-ticularity, on what reasonable steps the SSWP should have taken or should be ordered to take.

169. This assessment or investigation will cover sig-nifi cant changes to the present practice that include:i) requesting FME from treating doctors and mental health services who have worked with a claimant with MHPs (and further or updating FME) before:

a) he or she is requested to complete an ESA50, b) the decision is made to call him or her for a face-to-face examination / assessment, and before and afterc) any such examination / assessment takes place.

ii) the matters to be taken into account in deciding why such FME should or should not be sought at each such stage,iii) the manner in which FME is to be sought, including how the request will be drafted and focused, andiv) the manner in which the reasons for not seeking FME are to be recorded and passed on to the claimant.

And, this assessment or investigation should ad-dress the practice in cases covered by both the function-al and non-functional tests.

170. We acknowledge that this assessment or investi-gation may found arguments on what would or would not be reasonable at various stages having regard to ad-ministrative, computer, cost or other factors.

Remedy171. We agreed that we would hear the parties on this after this judgment had been circulated in draft for the identifi cation of typing corrections and obvious errors.

DECISION ON REMEDY OF THE UPPER TRIBUNAL

1. It is hereby declared that persons with MHPs (as defi ned in paragraph 2 of our Decision promulgated on 22 May 2013 - “the judgment”) ) suffer substantial dis-advantage in the present process of assessment for eli-gibility for Employment Support Allowance (“the Present Practice”) in the manner and for the reasons set out in the judgment (“the Substantial Disadvantages”)

2. The burden on the issue whether the adjustment advanced by the Applicants (the Evidence Seeking Recommendation as it is construed in paragraphs 70(i), (v) to (viii), 72, 73, 163 to 167 of the judgment “the ESR”)) or steps towards implementing it involve steps that it has been, is or will be reasonable for the Respondent (the SSWP) to take to avoid the Substantial Disadvantages (the Reasonableness Issue) has passed to and presently rests with the SSWP.

3. On the present evidence the Upper Tribunal is not in a position to make a properly informed decision on the Reasonableness Issue and with a view to provid-ing it with evidence that will enable it to do so:(A) By 3 July 2013 the SSWP is to carry out an investi-gation I assessment (that does not involve him under-taking any step that he wishes to argue it is not reason-able for him to take as a step to avoid the Substantial Disadvantages because such step is resource-intensive or for any other reason) and by reference thereto is to fi le such further evidence as he wishes to rely on in re-spect of the Reasonableness Issue that, without preju-dice to the generality of the foregoing:

i. develops, particularises and supports any case he wishes to advance that it is not reasonable for him to implement in whole or in part the ESR or to take any steps in accordance with that recom-mendation and its purpose (as set out in para-graphs 70(i), (v) to (viii), 72, 73, 163 to 167 of the judgment) to change the Present Practice.ii. addresses the matters identifi ed in paragraph 169 of the judgment, andiii. addresses with particularity what pilots or tri-als (if any) the SSWP proposes to carry out to as-sess the likely value or impact of any changes he proposes to make to the Present Practice, and in general terms the nature of pilot(s) and trial(s) that could be carried out to assess the likely value or impact of an implementation of the ESR, and why he has decided not to carry any of them out.

(B) A directions hearing is to be fi xed (time estimate half a day) on the fi rst available date in July 2013 on or after 10 July 2013.(C) Subject to further direction the Applicants and the First Three Interveners are to fi le and serve their evi-dence in answer to the evidence directed by paragraph (A) within 28 days of its service upon them.(D) The SSWP may if he is so advised serve evidence in reply to that directed by paragraph (C) within 28 days of its service on him.



(E) A hearing date with a time estimate of 2 days is to be fi xed in September 2013 to address, subject to fur-ther direction, the Reasonableness Issue and, if appro-priate, all consequential issues.(F) The parties have permission to apply on 2 working days notice for further directions

4. Costs reserved.

5. Permission to appeal is refused and the effect of our decision is not suspended.

Reasons For Decision On Remedy1. As we indicated we would at the end of our de-cision promulgated on 22 May 2013 (the judgment), we heard the parties on remedy.

2. Having regard to the positions adopted by the parties before and at that hearing we think it would be helpful if we set out the impact of the judgment. This is refl ected in and explains the reasons for the decision on remedy set out above.

3. In our analysis and conclusions we divided the relevant statutory provisions into the fi rst and second statutory questions posed by s. 20(3) of the Equality Act 2010 (see Index and Overview paragraphs (14) and (15)).

4. On the first statutory question posed: - “Are claimants with MHPs presently placed at a substantial disadvantage?” We decided that the answer is that they are and that this conclusion can properly be the subject of a declaration at this stage (see in particular para-graphs 98, 131, 132 and 138).

5. That affirmative answer to the first statutory question is a condition precedent to establishing, but does not establish, that the SSWP is in breach of the duty to make adjustments imposed by s. 20(3) of the Equality Act 2010.

6. The second question: Are there steps that it is reasonable for the SSWP to take to avoid the substan-tial disadvantage? - has to be answered in the affi rma-tive to establish a breach of that duty.

7. We have not given an affi rmative answer to that second statutory question and therefore have not found that the SSWP is in breach of that duty (see in particu-lar paragraph 147). Rather:a. we rejected the Applicants’ primary case that it would be reasonable for FME always be sought at an early stage in the process of the assessment of the entitlement to ESA of claimants with MHPs (see paragraphs 148(i) and 153), andb. we concluded that we did not have suffi cient evi-dence to enable us to reach a properly informed deci-sion on the Applicants’ secondary case that it would be reasonable for the Evidence Seeking Recommendation, as we interpreted and understood it, to be implemented

in respect of claimants with MHPs (see paragraph 148(ii) and 168).

8. In reaching conclusion (b) we concluded that the existing evidence of the SSWP fell well short of dem-onstrating that it would not be reasonable for the SSWP to take the steps necessary to implement the Evidence Seeking Recommendation (see paragraphs 164 to 167). Our approach to that evidence in respect to the Evidence Seeking Recommendation refl ected and ap-plied the common ground on the approach to be taken in law in paragraphs 89(v) and (vi) and thus an accep-tance that:a. the Applicants had identifi ed by their secondary case an adjustment that has a real prospect of remedying the substantial disadvantages we found to exist, andb. the burden of establishing whether that adjustment can reasonably be made has passed to the SSWP.

9. We rejected the Applicants’ argument that we should decide what steps the SSWP was or was not to take on the existing evidence, which probably would have led to us making an order to the effect that the Evidence Seeking Recommendation (as we interpreted it and understood it) should be implemented. By so doing we effectively gave the SSWP a further opportu-nity to provide us with evidence and argument on wheth-er complete or partial implementation of that Recommendation would be reasonable. Accordingly, we concluded that to that end we, as the relevant decision-maker (and whether our role is classifi ed as investigatory or adversarial), should direct the SSWP to carry out an investigation I assessment as to how the Evidence Seeking Recommendation could be implemented. We also acknowledged that this assessment or investigation may found arguments on what would or would not be reasonable at various stages having regard to administra-tive, computer and other costs (see paragraph 170). This refl ects the matters we decided can be taken into account on the multi-faceted approach to be taken in determining whether there are reasonable steps that can be taken (see paragraphs 89(vii) and (146).

10. We are sorry that this approach seems to have given rise to some confusion as to what the investiga-tion or assessment is to comprise and how it is to be carried out.

11. We confi rm that we envisaged, and hoped that we had made clear, that in addressing the burden that now lies on him:a. the SSWP fi rst by assessing and investigating the possible implementation of the Evidence Seeking Rec-ommendation, and then, as a result thereofb. by evidence and reasoning seeking to demonstrate to us that it would not be reasonable for him to implement all, or some parts of the Evidence Seeking Recommen-dation in respect of claims for ESA by persons with MHPs,a staged approach could be taken. Thus, for example, as is the case if before he embarks on resource-intensive



steps the SSWP wishes to carry out an assessment or in-vestigation and as result thereof inform us (and the other parties) on a properly particularised, supported and rea-soned basis why he asserts it would not be reasonable for him either (a) to carry out resource-intensive steps such as a trial, a pilot or an approach third parties or (b) to take any steps other than those he decides to take in imple-menting Professor Harrington’s recommendations, di-rections to this effect could be made.

12. We repeat points made in argument and in the judgment that:a. in preparing any such evidence the SSWP needs to consider carefully the detail of, and the supporting evi-dence and reasoning he should provide, to make good his points relating to his rejection of the implementation of the Evidence Seeking Recommendation (in whole or in part) and more generally any modifi cations thereof or other steps in line with it and its intention, to avoid the substantial disadvantages we have found to exist, on the basis that it would not be reasonable for him to take such steps to that end,b. if he adopts the same approach as he has done in the evidence he has put before us thus far, we may conclude that this falls short of what is required.

13. It is also clear that the Applicants and the Charity interveners may wish to challenge the evi-dence and reasoning advanced by the SSWP.

Costs14. At an early stage Upper Tribunal Judge Jacobs di-rected that, as there is no case law on the Upper Tribu-nal’s approach to costs in its judicial review jurisdiction (at least in this Chamber), the parties were to address us on the principles to be applied. An awaited decision of a three judge panel with the Senior President of Tribunals presiding which sat very recently may be of some rele-vance on this. So we have reserved costs.

Permission to appeal and a stay/suspension15. The SSWP sought permission to appeal and pointed out that he can only make such an application to the Court of Appeal if we have refused permission. He submitted that this was logically a prior issue to the ques-tion whether a stay should be granted. [Translating that into the terminology of our rules of procedure, he ap-plied for us to suspend the effect of our decision.] We agree, but consider that issues relating to a suspension and the expedition of an appeal can found the view that both permission and such matters should be dealt with by the Court of Appeal.

16. The SSWP sought a suspension primarily on the basis of the argument that if one was not granted he would have to carry out resource-intensive work that he would not have to carry out if he was successful on the appeal.

17. He submitted that our rejection of his arguments set out at paragraphs 92 and 93 and on the generic ap-

proach taken by the Applicants are all arguably wrong in law, and involve points of some general importance that have not been decided before and which merit consider-ation by the Court of Appeal. He also argued that we were arguably wrong in law to order the SSWP to “trial” a particular adjustment. As explained we do not think that we have done that.

18. As mentioned during the hearing we found the is-sues that the SSWP identifi es to be some of the easier ones in this case but we do not dispute that they involve points of some general importance that have not been decided before. We also acknowledge that if the SSWP were to succeed on them (or some of them) our conclu-sions in respect of the fi rst and second statutory ques-tions (referred to above) would be undermined and the SSWP would be likely to obtain an order from the Court of Appeal dismissing the claim.

19. The application for the suspension took a back seat during the hearing before us and it was not urged on us that we should suspend the effect of our order pend-ing an application to the Court of Appeal for permission to appeal and a stay. But we understood that such a stay would or might be sought if and when permission to ap-peal was granted.

20. We have concluded that:a. the nature of the points that the SSWP wishes to ad-vance on an appeal are such that the Court of Appeal will be able to take a view on their arguability without having to spend time on considering the complicated analysis of the present practice relating to the assess-ment of a claim for ESA and the detail of the evidence relating to the Diffi culties and substantial disadvantag-es we found to exist,b. the point pressed on us by the Applicants, which we accept, that a conclusion should be reached as quickly as possible on how the substantial disadvantages we have found to exist are to be addressed under the Equal-ity Act 2010,c. the approach taken by the SSWP thus far in this litiga-tion towards providing reasons why he asserts that the alternative adjustments sought by the Applicants would not be reasonable and what he will do to implement Pro-fessor Harrington’s recommendations, andd. our inability to impose any timetable on any appealmean that the correct course for us to take is to refuse the application for permission to appeal and to leave it and any issue raised concerning a stay to the Court of Appeal.


Sobhi v Commissioner of Police of the Metropolis: EAT [2013] EqLR 785

Sobhi v Commissioner of Police of the Metropolis

UKEAT/0518/12

Employment Appeal Tribunal (Mr Justice Keith)

2 May 2013

Disability: meaning of disability; direct discrimination; failure to make reasonable adjustments; employment ● Employment: disability

Applying the decisions in Chacón Navas v Eurest Colectividades SA and Paterson v Commissioner of Police of the Metropolis, the EAT held that a woman who suffered from dissociative amnesia as a result of which she could not recall that she had a previous conviction for theft, and was then unsuccessful in her applications to become a police constable because of her failure to disclose that fact, was a disabled person within the meaning of s.1 of the Disability Discrimination Act 1995: the impairment had a substantial and long-term adverse effect on an activity which related to her active participation in professional life.

The factsRachida Sobhi, the Claimant, is a police community support offi cer with the Metropolitan Police. She applied to become a police constable but, when she did so, she did not disclose that she had previously been convicted of theft. Her previous conviction was discovered as part of the application process. Her application was refused and she received a disciplinary warning in respect of the failure to disclose her conviction. The Claimant made a further application to become a police constable, in which she did disclose the fact of the conviction. However, that application was also unsuccessful, this time because of the disciplinary reprimand which prevented her from being considered as a police constable during the fi ve-year period it remained on her fi le.

The Claimant suffers from dissociative amnesia, which involves the breakdown of and disruptions in an individual’s memory. In the Claimant’s case, it prevented her from recalling events around her arrest and conviction because of the traumatic circumstances of her life at that time.

The Claimant issued proceedings before the Employment Tribunal, in which she alleged that, among other matters, the Respondent had discriminated against her on grounds of her disability. She alleged that the Respondent failed to make reasonable adjustments when it issued the disciplinary reprimand and that the refusal of the second application to become a police offi cer was an act of direct disability discrimination.

A pre-hearing review was held in order to determine a number of matters, including whether the Claimant had been a disabled person at the relevant time. The Respondent conceded that the Claimant suffered from a mental impairment, dissociative amnesia. However, the Respondent contended that that impairment did not have a substantial and long-term adverse effect on the Claimant’s ability to carry out normal day-to-day activities. It argued, in particular, that applying to become a police offi cer, while normal for a police community support offi cer to do, was a one-off activity and not a normal day-to-day activity. Further, it contended that the impairment did not have a substantial and long-term adverse effect on the Claimant’s ability to undertake normal day-to-day activities because the loss of impairment was limited, relating to only one aspect of her past.

The Employment Judge held that the Claimant was not a disabled person. The Claimant appealed.

Section 1 of the Disability Discrimination Act 1995 (DDA) provided that: “A person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

DecisionThe Employment Appeal Tribunal allowed the appeal and remitted the case to the Employment Tribunal.

The EAT HELD:(1) The Employment Judge erred in concluding that the Claimant, who suffered from dissociative amnesia as a result of which she did not recall that she had a previous conviction for theft, was not a disabled person within the meaning of s.1 of the DDA. The Claimant worked as a police community support offi cer for the Respondent. When she applied to become a police constable she did not disclose the fact that she had been convicted of the offence because she did not recall that fact: the impairment from which she suffered prevented her from recalling events around her arrest and conviction because of the traumatic circumstances of her life at that time. The Claimant’s application to

August_3_Sobhi.indd 785August_3_Sobhi.indd 785 2/8/13 13:01:242/8/13 13:01:24

[2013] EqLR 786 Sobhi v Commissioner of Police of the Metropolis: EAT

become a police offi cer was refused because of her failure to disclose the conviction and she received a disciplinary reprimand as a result of which a subsequent application to become a police offi cer was also refused.

A person must be regarded as a disabled person if their condition has a substantial and long-term adverse effect on any activity of theirs which relates to their effective participation in professional life. The fact that an activity is performed only intermittently does not make it any less a day-to-day activity. When assessing whether an individual is disabled, therefore, it is necessary to ascertain whether the impairment which the worker has may hinder their full and effective participation in professional life on an equal basis with other workers.

In the present case, while the Claimant’s loss of memory was limited to just one aspect of her past, her loss of memory in that respect had an adverse and long-term effect on any activity of hers which required her to recall whether she had any previous convictions. One of those activities was applying to become a police constable. That was an activity to which the defi nition of disability in s.1(1) of the DDA should be treated as applying because it was relevant to her effective participation in professional life.

Cases referred toChacón Navas v Eurest Colectividades SA, C-13/05 [2006] IRLR 706 ECJHK Danmark, acting on behalf of Ring v Dansk almennyttigt Boligselskab, C-335/11 [2013] EqLR 528 CJEUPaterson v Commissioner of Police of the Metropolis [2007] IRLR 763 EAT

AppearancesFor the Appellant: Declan O’Dempsey, instructed by Chelsea CABFor the Respondent: Rohan Pirani, instructed by Metropolitan Police, Director of Legal Services

THE HON. MR JUSTICE KEITH:

Introduction1. The claimant, Ms Rachida Sobhi, is a police community support offi cer with the Metropolitan Po-lice. In August 2008, she applied to become a police constable. As part of that process, her fingerprints were taken. That revealed that she had been convicted in 1991 of an offence of theft from a previous em-ployer for which she had been conditionally dis-charged. Her application to become a police constable was refused, and in April 2009, she received a disci-plinary reprimand (which was to remain on her fi le for fi ve years) for failing to disclose her previous con-viction when she had originally applied to become a police community support offi cer and when she had subsequently applied to become a police constable.

2. In November 2009, Ms Sobhi applied once again to become a police constable, this time disclosing her previous conviction. That application was refused in December 2009 on the basis that the reprimand on her fi le prevented her from being considered for appoint-ment as a police constable. It is said that her previous conviction would have prevented her from being con-sidered for such an appointment anyway.

3. In November 2010, Ms Sobhi brought a claim in the employment tribunal complaining of discrimination on the ground of her sex, her sexual orientation, her reli-gion or beliefs, her age and her disability against the Metropolitan Police and a number of individuals. Leaving aside the individuals, the Commissioner of Police of the Metropolis was treated as the appropriate respondent in respect of the claim against the Metropolitan Police. The current appeal relates only to her claim of discrimination on the ground of her disabil-ity. At a case management discussion at the employment tribunal in London Central on 21 January 2011, the acts which were said to have amounted to her discrimination on the ground of her disability, leaving aside an issue of victimisation, were identifi ed as the reprimand she had got in April 2009 and the refusal of her second applica-tion to become a police constable in December 2009. The fi rst of those allegations was that the Metropolitan Police had failed to make reasonable adjustments, which is shorthand for an allegation that in reprimanding her the Metropolitan Police had applied a provision, criteri-on or practice to her, which had placed her at a substan-tial disadvantage in comparison with people who were not disabled, and had failed to take reasonable steps to prevent that provision, criterion or practice from having that effect. The second of the allegations was one of di-rect discrimination on the ground of her disability, i.e. that in refusing her second application to become a po-lice constable, she had been treated less favourably be-cause of her disability than a non-disabled person would have been. Her case is that when she had originally ap-plied to become a police constable, she had forgotten about her conviction and the facts to which it related as a result of traumatic events in her life.



4. At the case management discussion, it was or-dered that there should be a pre-hearing review to de-cide a number of things, one of which was whether Ms Sobhi had been a disabled person at the relevant time. The pre-hearing review took place before Employment Judge Sigsworth on 12 May 2011. He concluded that Ms Sobhi had not been a disabled person at the rele-vant time, and her claim of discrimination on the ground of her disability was dismissed. Following the dismissal of that claim, Ms Sobhi withdrew her other claims, but she now appeals to the Employment Appeal Tribunal against the fi nding that she had not been a disabled person at the relevant time and against the dismissal of her claim of discrimination on the ground of her disability.

5. The employment judge thought that the rele-vant time at which Ms Sobhi was or was not a dis-abled person was when the acts which were said to have amounted to her discrimination took place, namely in April and December 2009. Mr Rohan Pirani for the Commissioner suggests otherwise. He says that the relevant time was February 2009 when Ms Sobhi completed the security questionnaire in which she had had to disclose whether she had any previous convictions because that was when such disability as she had would have disadvantaged her. That is not a debate into which I need to be drawn because it is not suggested that it makes any difference to the one ground of appeal which I have decided is determina-tive of the appeal.

The meaning of “disabled person”6. The statutory provisions on the topic are well known. The starting point, of course, is the defi nition of “disabled person” in section 1(1) of the Disability Discrimination Act 1995 (“the 1995 Act”):

“Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he had a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

The impairment which Ms Sobhi was conceded to have had was a mental one. It was dissociative amnesia, which is a form of mental illness which involves the breakdown of, or disruptions in, someone’s memory. The Commissioner conceded that at the time she had completed the security questionnaire in February 2009 she had been suffering from that condition. The Commissioner questions whether at the time she completed the security questionnaire she was aware that there were gaps in her memory relating to events which occurred in 1991, and whether she should therefore have said that she did not know whether or not she had had any convictions at that time. The issue which the employment judge addressed was whether, on the assumption in Ms Sobhi’s favour that she had been unaware that there were any gaps in her memory of events which occurred in 1991 (as to which the employment judge made no finding), her

condition was one which had “a substantial and long-term adverse effect” on her “ability to carry out normal day-to-day activities”.

7. Schedule 1 to the 1995 Act contains a set of pro-visions which supplement section 1. It identifi es, for example, what a mental impairment can include, and when the effect of an impairment is long-term. For present purposes, it is what the Schedule says about when an impairment is to be taken to affect someone’s ability to carry out normal day-to-day activities which is relevant. Para. 4(1) of the Schedule provides that an impairment is to be taken to affect someone’s ability to carry out normal day-to-day activities only if it affects one of eight specific capacities. The only capacity which is relevant to the present case is that set out in para. 4(1)(g): “memory or ability to concentrate, learn or understand”.

8. The employment judge was obliged, of course, by section 3(3) of the Act to take into account the guid-ance issued by the Secretary of State about matters to be taken into account when determining whether someone is a disabled person to the extent that it ap-peared to the employment judge to be relevant. In view of the dates of the acts alleged to have constituted the alleged discrimination, the relevant guidance is the one issued in 2006. Para. B1 of the guidance says that someone’s disability has a substantial effect on their ability to carry out normal day-to-day activities if its effect is more than minor or trivial.

The nature of Ms Sobhi’s disability9. Ms Sobhi gave evidence in the employment tri-bunal and she was cross-examined by Mr Pirani, but the principal evidence about her condition which the employment judge had was a series of reports on her since August 2009 by a consultant neuropsychiatrist, Professor Michael Kopelman, together with his an-swers to a number of questions asked of him by the Commissioner’s lawyers. In his reports, he set out what Ms Sobhi had told him about what had been hap-pening in her life at the time when, as she was subse-quently to discover, she had been convicted of theft and given a conditional discharge. He thought that she had been suffering from depression at the time. He said that her loss of memory related only to “her abili-ty to recall events around the time of her arrest and conviction in 1991”. He thought that her amnesia in respect of those events was likely to be genuine in the light of the “traumatic circumstances” of her life which she had described to him. He added that he did not think that the “relatively small gap” in her “past re-mote memory” affected the day-to-day functioning of her memory, or that it had “any implications for her ability to perform well as a police constable now, when she is much more settled in her life”. He did not ex-press any view about whether she had been aware in February 2009, when she had completed the security questionnaire, that she had any memory loss for events which had occurred in 1991.



10. Professor Kopelman also diagnosed Ms Sobhi as suffering from moderate depression when he saw her – not as a result of the traumatic events in her life in the past, but because of the circumstances which had caused her application to become a police con-stable to be refused and the diffi culties she was en-countering in becoming a police constable. In February 2011, Professor Kopelman was saying that he thought that her depression had lasted for over 12 months by then, and that it was then compounded by “considerable agitation and anxiety relating to” the is-sues around her employment. He thought that her agi-tation and anxiety compromised her memory and her ability to concentrate, but that her depression did not have a substantial and long-term effect on her ability to carry out normal day-to-day activities. That no doubt – in part at least – is why it is not her depression which is said to constitute her disability for the pur-poses of her claim of disability discrimination. In any event, it would have been diffi cult for her to rely on it if her disability had to be considered by reference to her condition in February 2009, because her applica-tion to become a police constable had not been re-fused by then. As the employment judge put it in para. 5 of his judgment:

“These symptoms of depression were brought about by her discovery of the amnesia and/or the treatment of the [Metropolitan Police]. They were not a cause of that treatment. Depression did not cause her disadvantage, and, indeed, is not relied upon [by] her as so doing.”

11. That was the evidence, then, on which the em-ployment judge reached the conclusions which he did. He acknowledged in para. 5 of his judgement that Ms Sobhi had been substantially disadvantaged by her amnesia in respect of her conviction in 1991 when she completed the security questionnaire as part of her ap-plication to become a police constable. But he went on to say in para. 6 of his judgment:

“The fact is, there is no substantial adverse effect on [Ms Sobhi’s] ability to carry out normal day-to-day activities by reason of this amnesia over certain events in 1991. Such does not affect the day-to-day functioning of her memory, as Profes-sor Kopelman has concluded. She can function perfectly well as a [police community support of-fi cer], and no doubt would do so as a regular [po-lice constable]. There is absolutely no evidence that her normal day-to-day activities outside the work place are adversely affected by the dissocia-tive amnesia. [Ms Sobhi] has given no examples of what she cannot do, which is where I should focus, because of that condition on a day-to-day basis.”

It would have been more accurate, I think, for him to have said that Ms Sobhi could give no such examples other than the impact which her failure to recall her conviction had had on the way she completed the se-curity questionnaire.

“Normal day-to-day activities”12. A number of grounds of appeal have been ad-vanced by Mr Declan O’Dempsey on behalf of Ms Sobhi, but the core ground is that the employment judge wrongly focused on the one occasion when Ms Sobhi’s dissociative amnesia demonstrably disadvan-tage her, namely when she completed the security questionnaire which she had to complete in order for her application to become a police constable to be pro-cessed. That did not mean that her dissociative amne-sia did not have a substantial effect on her ability to carry out normal day-to-day activities, and to the ex-tent that the employment judge thought that it did, he is said to have erred in law because he should have held that Ms Sobhi’s normal day-to-day activities in-cluded trying to remember things – in other words, the use to which she put her memory.

13. I do not think that the employment judge’s focus was out of kilter. Although the employment judge noted the one occasion when Ms Sobhi’s dissociative amnesia demonstrably disadvantaged her, the employ-ment judge did not equate the requirement for her am-nesia to have had a substantial and long-term adverse effect on her ability to carry out normal day-to-day ac-tivities with her amnesia having put her at a substantial disadvantage. He was alive to the issues which the 1995 Act required him to address when it came to de-termining whether or not she was a disabled person. The way the employment judge expressed his conclu-sion in para. 6 of his judgment admits of no other view. Nor can it be said that using one’s memory (which is something we all do every minute of every hour of every day while we are awake) is the sort of activity contemplated by section 1. The sort of activity con-templated by section 1 is an activity which you use your memory for. The particular activity which might be said to have been affected by her amnesia was the application she made to become a police constable.

14. The real question, therefore, is whether it was open to the employment judge to conclude that apply-ing to become a police constable did not amount to Ms Sobhi’s normal day-to-day activity. If the matter had been free from authority, I would have been inclined to think that it had been open to the employment judge to conclude that applying to become a police constable did not amount to Ms Sobhi’s normal day-to-day ac-tivity. Ms Sobhi’s application to become a police con-stable was an entirely normal thing for a police com-munity support offi cer to do, but I am sceptical about whether it could be characterised as a day-to-day ac-tivity. It was a one-off activity, and the use of the words “day-to-day” in section 1(1) of the 1995 Act tend to show that one-off activities are not to be taken into ac-count in determining whether someone is to be treated as disabled. That mirrors what the guidance says at para. D4:

“In general, day-to-day activities are things people do on a regular or daily basis, and examples in-clude shopping, reading and writing, having a con-



versation or using the telephone, watching televi-sion, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.”

15. This analysis is said to be inconsistent with the approach of the Employment Appeal Tribunal in Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763 (Elias P (as he then was) presiding). In that case, a police offi cer with dyslexia was found to be signifi cantly disadvantaged when compared with his colleagues when taking examinations for promo-tion. The Employment Appeal Tribunal said at [38]:

“Where it is not disputed that the employee is suf-fering a substantial disadvantage because of the ef-fects of his or her disability in the procedures ad-opted for deciding between candidates for promotion, the only proper inference is that those effects must involve a more than trivial effect on his ability to undertake normal day to day activi-ties. It would fundamentally undermine the protec-tion which the Act is designed to provide were it otherwise.”

The important point is that although the activity in which Mr Paterson was disadvantaged was the taking of examinations for promotion, it was the impairment of his ability to carry out his normal day-to-day activities like reading and comprehension which his dyslexia had a substantial and long-term adverse effect on. I would have been inclined to think that Ms Sobhi’s loss of memory did not have a substantial and long-term adverse effect on her normal day-to-day activities in that sense because her loss of memory could not have been more limited, related as it was to only one aspect of her past.

16. However, there are two other passages in the Employment Appeal Tribunal’s judgment in Paterson which suggest that this analysis may be wrong. First, the Employment Appeal Tribunal said at [66]:

“... carrying out an assessment or examination is properly to be described as a normal day to day activity.”

In other words, the fact that an activity is performed only intermittently does not make it any the less a day-to-day activity. That could be something which distinguishes Paterson from Ms Sobhi’s case. Mr Paterson would take examinations for promotion at various stages of his career. Applying for promotion by taking examinations to achieve that was something which Mr Paterson did intermittently. It could be said to be unlike Ms Sobhi’s application to become a police constable, which was a one-off activity.

17. Secondly, though, the Employment Appeal Tribunal concluded in Paterson at [78] that, for the reasons given in [72]-[77], it was bound by the deci-sion of the European Court of Justice in Chacón Navas

v Eurest Colectividades SA [2006] IRLR 706. The rel-evance of that is that the 1995 Act is the domestic im-plementation of Framework Directive 2000/78, and in Chacón Navas the European Court of Justice held at [43] that “the concept of ‘disability’ [in the Directive] must be understood as referring to a limitation which ... hinders the participation of the person concerned in professional life”. The European Court of Justice went on to say at [50] that Art. 5 of the Directive meant that “employers are to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, unless such measures would impose a disproportionate burden on the employer.” That led the Employment Appeal Tribunal in Paterson to conclude at [67] that in order to give effect to the law of the European Union, section 1 of the 1995 Act had to give

“... a meaning to day-to-day activities which en-compasses the activities which are relevant to par-ticipation in professional life. Appropriate mea-sures must be taken to enable a worker to advance in his or her employment. Since the effect of [Mr Paterson’s] disability may adversely affect promo-tion prospects, then it must be said to hinder par-ticipation in professional life.”

18. I see the force of all that. All the more so now that the European Court of Justice in HK Danmark v Dansk Almennyttigt Boligselskab [2013] EUECJ C-335/11 only last month reaffirmed the principle in Chacón Navas by reference to the need for the Directive to be interpreted in a manner which is con-sistent with the United Nations Convention on the Rights of Persons with Disabilities. You look to see whether the impairment which the worker has may hinder their full and effective participation in profes-sional life on an equal basis with other workers.

19. What all of that means is this. Although Ms Sobhi’s loss of memory was limited to just one aspect of her past, her loss of memory in that respect had an adverse and long-term effect on any activity of hers which required her to recall whether she had any pre-vious convictions. One of those activities was apply-ing to become a police constable. That was an activity to which the defi nition of disability in section 1(1) of the 1995 Act should be treated as applying because, despite its language, a person must be regard as a dis-abled person if their condition has a substantial and long-term adverse effect on any activity of theirs which relates to their effective participation in profes-sional life. Such an activity must include Ms Sobhi’s application to become a police constable.

20. There is an anomaly here which I fi nd diffi cult to resolve. Ms Sobhi was either not aware of her dis-ability or not aware of the impact of her disability on her ability to recollect her conviction when she applied to become a police constable. Nor, of course, was the Metropolitan Police. But since she was required to dis-close her previous conviction when applying to be-



come a police constable, and since that requirement might be said to have placed her at a substantial disad-vantage in comparison with people who could remem-ber any previous convictions they had, and who there-fore disclosed them on the appropriate form, the Metropolitan Police would have been under a duty to take such steps as were reasonable to prevent that re-quirement from having that effect. It is a little diffi cult to see what steps they could have taken if they did not know of Ms Sobhi’s memory loss. That might suggest that her memory loss was not the kind of disability which the Directive contemplated.

Conclusion21. There are, as I have said, a number of subsidiary grounds of appeal, but none of them need to be consid-ered in the light of my conclusion on this core ground of appeal. It follows that Ms Sobhi’s appeal must be allowed, the employment judge’s fi nding that she was not a disabled person must be set aside, as must his or-der that her claim of discrimination on the ground of her disability be dismissed, and the case must be re-mitted to the employment tribunal for it to consider whether in February 2009 when Ms Sobhi completed the security questionnaire, she knew of her amnesia relating to various events that occurred in 1991, be-cause if she did, that goes to the question whether she should have said that she did not know whether there was anything in 1991 which she had to disclose to the Metropolitan Police. The answer to that question, as well as what this judgment says about what constitutes normal day-to-day activities, may have an impact on what the appropriate fi nding should be as to whether the effect which her amnesia had on her ability to carry out her normal day-to-day activities should be charac-terised as substantial. I shall hear from the parties on whether that remission should be to the same employ-ment judge or a different one, but at present my strong inclination is that it should be remitted to the same em-ployment judge.


Redcar and Cleveland Primary Care Trust v Lonsdale: EAT [2013] EqLR 791

Redcar and Cleveland Primary Care Trust v Lonsdale

UKEAT/0090/12

Employment Appeal Tribunal (HH Judge Peter Clark; K Bilgan, S Yeboah)

9 May 2013

Disability: employment; failure to make reasonable adjustments ● Employment: disability

The Employment Tribunal correctly held that the Respondent PCT had failed to make reasonable adjustments to the two-stage HR framework that they applied to staff, including the Claimant, who had been told they were at risk of redundancy, when allocating those staff to new roles following a restructure. When the Claimant had become disabled sometime previously, she had been redeployed from her original band 6 post to a band 4 post. Had she not become disabled and thus redeployed, and had that band 6 post been at risk, she would have been eligible to compete with the successful candidate for the new band 6 role instead of suffering the substantial disadvantage of being restricted by the HR framework to apply for a post one grade above her then current role.

The factsThe Claimant had been employed by the Respondent PCT as a senior occupational therapist, which was a band 6 post. Her vision deteriorated to the point where she was unable to continue in her existing role. It was accepted that her visual impairment meant that she was a disabled person within the meaning of s.6 of the Equality Act 2010. Redeployment to a suitable alternative role was recommended, but the only suitable alternative was a band 4 post. The Claimant was confi rmed in that role following a trial.

Just over a year later, the Respondent embarked on a restructuring exercise involving the deletion of posts and the Claimant was warned that her post was one of 30 at risk of redundancy. The two-stage HR framework adopted by the Respondent to allocate posts in the new structure to employees at risk of redundancy stipulated that, at the fi rst stage, an employee could apply for up to

fi ve roles in the new structure at their present grade or one grade higher than their present grade. In the Claimant’s case, that meant that she was restricted to applying for posts at band 4 or band 5. Where there was a close match between the old role and the new role the employee would be slotted in. If the candidate had the required skills for the role they could be considered without competition, but if there was more than one candidate with the required skills there would be competitive interviews. It was only if the post remained unfi lled at the end of that fi rst stage that the post would be available to any employee to apply for at the second stage, regardless of their substantive grade.

The Claimant was given notice of dismissal by reason of redundancy. She appealed against that dismissal and expressed interest in a band 6 post. A colleague, whose then substantive role was band 6, also expressed interest. At an appeal, it was decided that the Claimant was unable to apply at the fi rst stage for her preferred band 6 post in the new structure because it was more than one grade above her present post, even though it was on the same level as that which she had started her employment with the PCT before the onset of her disability. The post was fi lled at the fi rst stage by the colleague. The Claimant’s appeal against dismissal was rejected.

The Claimant brought proceedings before the Employment Tribunal complaining of unfair dismissal and disability discrimination. The Tribunal upheld her complaint of failure to make reasonable adjustments, holding that it would have been a reasonable adjustment to allow her to apply at the fi rst stage for the band 6 post. They held that her dismissal for redundancy had been unfair but dismissed her complaint of dismissal as an act of discrimination arising from disability. The PCT appealed to the EAT and the Claimant cross-appealed against the fi nding that her dismissal had not been discriminatory.

DecisionThe Employment Appeal Tribunal dismissed the appeal and allowed the Claimant’s cross-appeal.

The EAT HELD:(1) The Employment Tribunal had been correct to hold that the Respondent had failed to make reasonable adjustments to the HR framework that they applied to staff who had been told they were at risk of redundancy. The prohibition on staff at risk of redundancy applying for posts more than one grade above their current banding was a provision,

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[2013] EqLR 792 Redcar and Cleveland Primary Care Trust v Lonsdale: EAT

criterion or practice (PCP) which put the Claimant at a substantial disadvantage.

In considering whether there has been a failure to make a reasonable adjustment, it is only necessary to identify a non-disabled comparator where that is appropriate. In the present case, a like-for-like comparison between the Claimant, who at the time of the restructure held a substantive post in band 4, and a non-disabled comparator was not appropriate on the facts.

The substantial disadvantage suffered by the Claimant lay in the fact that, as a direct result of the onset of her visual impairment (which was accepted to be a disabling condition), she had been redeployed from a band 6 to a band 4 post more than 12 months before the restructure. It was for that reason that she was precluded from applying for her preferred band 6 role at the fi rst stage of the HR framework. Had she not become disabled, she would have remained in her original band 6 post and, had that been at risk, would have been eligible to compete with the successful candidate for the new band 6 role. Instead, she had been disadvantaged by not being able to apply for that alternative role.

Allowing her to compete for that post would have been a reasonable adjustment. The Respondent wished to treat all staff equally under the HR framework, but sometimes disabled people must be treated more favourably than those who are not disabled. In all the circumstances, it would not have been unreasonable to make an exception under the HR framework to allow for the Claimant’s disability and its consequences.

(2) Although it had not been possible on the evidence before it for the Employment Tribunal to make a defi nitive fi nding on whether the Claimant would have been successful had she been permitted to apply for the band 6 post, it is now well established that it was enough for the Claimant to be able to show a real prospect of the adjustment removing the disadvantage that she suffered as a result of her disability.

The loss of a chance of successfully applying for a post might properly be refl ected in the assessment of loss arising from the failure to make the relevant adjustment at the remedy stage in the same way that the loss of a chance falls to be assessed under the principle explained in Polkey v AE Dayton Services Ltd when assessing the compensatory award for unfair dismissal.

(3) The fi nding of the Employment Tribunal that the reason or principal reason for dismissal was redundancy, a potentially fair reason within s.98 of the Employment Rights Act 1996, did not preclude

there being a discriminatory element amounting to a signifi cant factor in the dismissal. The failure of the Respondent to allow the Claimant to apply for the band 6 post meant that her dismissal by reason of redundancy had been inevitable. That was suffi cient to amount to a discriminatory dismissal.

Cases referred toArchibald v Fife Council [2004] IRLR 651 HL Environment Agency v Rowan [2008] IRLR 20 EATFareham College v Walters [2009] IRLR 991 EATPolkey v AE Dayton Services Ltd [1988] AC 344 HLRudham v Romec Ltd [2007] All ER (D) 206 (Jul) EAT

AppearancesFor the Appellant: Georgina Nolan, instructed by Eversheds LLPFor the Respondent: Adam Mugliston, instructed by Unison Legal Services



HIS HONOUR JUDGE PETER CLARK:

Introduction1. We have before us for full hearing an appeal by the Respondent, Redcar and Cleveland PCT and a cross-appeal by the Claimant, Miss Lonsdale against the Judgment of an Employment Tribunal chaired by Employment Judge Wade and sitting at North Shields on 3-6 October 2011. That Judgment was promulgated with reasons on 3 November 2011.

The facts2. The Claimant commenced the relevant period of continuous employment with the Respondent or its predecessor on 1 January 2008 as a Senior Occupa-tional Therapist on band 6.

3. In August 2008 she suffered a signifi cant deterio-ration in her vision. On 29 December 2008 an Occupational Health assessment concluded that she could not, as a result of her visual impairment, continue in her existing role; redeployment to a suitable role was recommended. The only suitable alternative was a band 4 post as Workforce Development Co-ordinator. The Claimant commenced a trial in the alternative band 4 role on 16 February 2009 with the benefi t of various ad-justments at a cost to the Respondent of £6,000. She was confi rmed in the role on 1 June 2009 having applied un-successfully for a band 6 role in May and then a different band 4 role in June. Her visual disability precluded her from patient interaction. It is common ground that she was disabled for the purpose of the Equality Act 2010.

4. In the summer of 2010 the Respondent em-barked on a genuine restructuring exercise involving the deletion of posts. By letter dated 10 August 2010 the Claimant was notifi ed that her post of Workforce Development Co-ordinator was at risk of redundancy. It was one of 30 posts at risk. A process of consultation commenced on 16 August.

5. The Respondent adopted an HR Framework to deal with possible redeployment of those employees occupying posts at risk. At stage 1 staff whose posts were to be eliminated could apply for up to 5 posts at their present grade (in the Claimant’s case, band 4) or one post at one grade above but no higher. The Claimant was thus limited to applying for one band 5 post. At stage 2, staff could apply for any post in com-petition with their colleagues.

6. At stage 1 the fi rst step was slotting in, without competition, where there was a close match between the new and old posts. Next were posts where the can-didate had the required skills for and could be consid-ered without competition; thirdly, where there was more than one candidate with the required skills, com-petitive interviews would take place.

7. The Claimant’s position was that at stage 1 she was prevented from applying for the role of Staff and

Patient Safety under the HR Framework because it was at band 6, two grades above her present post, al-though on the same level at which she had joined the Respondent prior to the onset of her disability.

8. Having considered the Claimant’s representa-tions the Respondent, through Ms Tempest, declined to permit her to apply for the band 6 Staff and Patient Safety role, citing the HR Framework which ‘had been impact assessed to ensure that there are no adverse ef-fects resulting from any of the protected characteristics covered by the Equality Act’.

9. The ET considered the Respondent’s impact as-sessment (paras. 14-16) and noted the Respondent’s acknowledgement of the fact that there was a respon-sibility to take account of disabled peoples’ disabilities even where that involves treating them more favoura-bly than others. However, Mr Gilligan, who chaired the panel which ultimately dismissed the Claimant, despite his diversity training and 30 years experience in clinical practice, believed that there was no duty to treat disabled people more favourably in a redundancy situation as the HR Framework acknowledged. He had never come across a registered blind person (as was the Claimant) in a clinical post.

10. On 15 November 2010 the Claimant was given notice of dismissal, that notice expiring, following an extension, on 31 December.

11. On 20 November the Claimant appealed against her dismissal. On 23 November she expressed interest in the band 6 Patient and Staff Safety role. On 29 November a colleague, then a band 6 HR Adviser, also expressed interest in that role. That person also suf-fered from a disability, which affected her driving in-termittently. The ET found (para. 19) that her expres-sion of interest form was, on the face of it, completed more comprehensively than was the Claimant’s.

12. An appeal hearing before a panel chaired by Ms Tempest took place on 30 November. At that meeting the panel concluded that the Claimant could not be allowed to apply at stage 1 for the Patient Safety role, whilst fi nding that she appeared to dem-onstrate some of the relevant skills and competencies. She could apply at stage 2 if it remained unfi lled. In the event it was filled at stage 1 by the former HR Adviser following consideration by a matching panel which also concluded, informally, that the Claimant did not meet the essential criteria for the role. The rea-son for that view was never explained (reasons, para. 20). The Claimant’s appeal was dismissed. Her em-ployment ended on expiry of her notice on 31 December 2010.

13. By her claim form ET1 presented to the ET on 14 February 2011 the Claimant complained of disabil-ity discrimination and unfair dismissal. All claims were resisted by the Respondent.


[2013] EqLR 794 Redcar and Cleveland Primary Care Trust v Lonsdale: EAT

The ET decision14. The ET held that the Respondent had failed to make a reasonable adjustment by permitting the Claimant to apply for the band 6 Patient and Safety role, allowing her to compete with the other (success-ful) candidate at stage 1 of the restructuring process. They did not consider that slotting the Claimant into that role was a reasonable adjustment. The dismissal was by reason of redundancy and was unfair for the reasons given at para. 39. However, the dismissal was not itself an act of discrimination arising from her dis-ability (see para. 40). A remedy hearing has yet to take place.

The appeal and cross-appeal15. The Respondent appeals the ET’s fi ndings both as to its failure to make a reasonable adjustment and unfair dismissal. The Claimant challenges the fi nding at para. 40 that her dismissal was not discriminatory by way of her cross-appeal. It is convenient to take those three issues in the following order: (1) reasona-ble adjustments (2) disability dismissal (3) unfair dis-missal.

Reasonable adjustments16. The statutory duty to make reasonable adjust-ments is now contained in s.20 Equality Act 2010. The fi rst requirement (s.20(3)) is a requirement, where a provision, criterion or practice (PCP) of (here, the Respondent) puts a disabled person at a substantial disadvantage in relation to a relevant matter in com-parison with persons who are not disabled, to take such steps as it is reasonable to take to avoid the dis-advantage.

17. Section 20(3) EqA re-enacts the former s.4A Disability Discrimination Act 1995, as amended and so the old case law remains relevant when construing the s.20(3) duty.

18. In Environment Agency v Rowan [2008] IRLR 20, para. 27 the EAT (HHJ Serota QC presiding) indi-cated that in considering an alleged breach of the s.4A duty an ET must identify:(a) the PCP applied by or on behalf of the employer…(c) the identity of non-disabled comparators (where appropriate) and(d) the nature and extent of the substantial disadvan-tage suffered by the Claimant.

19. Ms Nolan does not challenge the ET’s fi nding that here the relevant PCP was the prohibition under the HR Framework on staff at risk of redundancy ap-plying for posts more than one grade above their cur-rent banding, thereby precluding the Claimant from applying for the band 6 Patient and Staff Safety role. However, she submits that the ET fell into error, fi rst in failing to identify a non-disabled comparator and secondly in failing to make a fi nding as to how the PCP put the Claimant at a substantial disadvantage.

20. Taking the comparator point fi rst, we empha-sise the words ‘where appropriate’ in the Rowan for-mulation of the appropriate test. We agree with Mr Mugliston, by reference to the observations of Cox J in Fareham College v Walters [2009] IRLR 991, par-ticularly paras. 56, 58, that a like for like comparison is not appropriate on the facts of this case. Secondly, the substantial disadvantage suffered by this Claimant lay in the fact that, as a direct result of the onset of her visual impairment, she was redeployed from a band 6 to a band 4 post in 2009. That is why she was precluded from applying for the band 6 Staff and Patient Safety role at stage 1 under the HR Framework. We do not accept that that redeployment was ‘too remote’ as the ET thought in relation to dis-criminatory dismissal (para. 40) when considering the duty to make adjustments. Had she not become disabled she would have remained in her original band 6 post and, had that been at risk, would have been eligible to compete with the successful candi-date for the Safety role. Instead, she was disadvan-taged by not being able to apply for that alternative role. As to whether allowing her to compete for that post was a reasonable adjustment, the ET took into account the Respondent’s desire to treat all staff equally under the HR Framework, but that overlooks the Respondent’s own acknowledgement that some-times disabled people must be treated more favoura-bly than those who are not disabled, the principle es-tablished in Archibald v Fife Council [2004] IRLR 651 (HL). In all the circumstances it was not unrea-sonable to make an exception under the HR Framework to allow for the Claimant’s disability and its consequences.

21. Accordingly, we uphold the ET’s fi nding of a failure to make a reasonable adjustment in this re-spect. In doing so we have not overlooked Ms Nolan’s complaint that the ET made no finding that the Claimant would have been successful in applying for the Safety role. We have earlier noted the ET’s fi nding at para. 20 that although the matching panel informal-ly formed the view that the Claimant did not meet the essential criteria for the role, no explanation was given for that fi nding. Thus no defi nite answer to the question, would the Claimant have been successful, was possible on the state of the evidence before the ET. It is now well established in EAT authority (see the cases listed in Harvey, vol 2, L402) that it is enough that there was a real prospect, as I put it in Romec v Rudham [2007] ALL ER (D) 2010, of the adjustment removing the disadvantage suffered by the Claimant as a result of her disability. That was effec-tively the ET’s fi nding at para. 34. Further, it seems to us that the loss of a chance of successfully applying for the Safety post may properly be refl ected in the as-sessment of loss arising from the failure to make the relevant adjustment at the remedy stage in the same way that the loss of a chance falls to be assessed under the Polkey principle when assessing the compensato-ry award for unfair dismissal (see below).



Discriminatory dismissal22. Mr Mugliston makes a short and telling point in relation to the ET’s reasons for dismissing this part of the claim at para. 40. The ET there appear to be ad-dressing again (see para. 37) the claim under s.15 EqA whereas, having found a breach of the duty under s.20 the ET was bound to go on to conclude that the dis-missal was inextricably linked with the failure to make that adjustment and was therefore an act of discrimina-tion contrary to s.39(2)(c).

23. We accept that submission. Ms Nolan points to the ET’s finding that the reason (or, we would add, principal reason) for dismissal for the purposes of the unfair dismissal claim was redundancy. It follows, she submits, that the ET was entitled to conclude that the dismissal was not discriminatory. However, the reason or principal reason for dismissal under s.98 ERA does not preclude there being a discriminatory element amounting to a significant factor in the dismissal. Here, the failure to allow the Claimant to apply for the Safety post meant that her dismissal by reason of re-dundancy was inevitable. That is suffi cient to amount to a discriminatory dismissal under s.20(3) read with s.39(2)(c) EqA.

24. It follows that we shall allow the Claimant’s cross-appeal.

Unfair dismissal25. It follows from what has gone before that we reject the Respondent’s appeal against the fi nding of unfair dismissal. We accept the ET’s fi ndings as to un-fairness of the dismissal by reason of redundancy at para. 39. In addition, as we have concluded, the failure to make an adjustment by permitting the Claimant to apply for the Safety post, itself leading to a discrimi-natory dismissal, added to its unfairness. We repeat, the loss of a chance of obtaining that post is a factor to be considered in the calculation of the compensatory award at the remedy stage.

Disposal26. The Respondent’s appeal is dismissed.

27. The Claimant’s cross-appeal is allowed. The matter will now return to the same ET for the assess-ment of compensation for disability discrimination, in-cluding discriminatory dismissal as explained above and unfair dismissal, ensuring that there is no double-counting in the two assessment exercises.


[2013] EqLR 796 Woodhouse v West North West Homes Leeds Ltd: EAT

Woodhouse v West North West Homes Leeds Ltd

UKEAT/0007/12

Employment Appeal Tribunal (HH Judge Hand QC; M Clancy, M Worthington)

5 June 2013

Race: employment; victimisation ● Employment: race

The Employment Tribunal had wrongly concluded that evidence about numerous ill-founded grievances of race discrimination brought by the Claimant during his employment by the Respondent amounted to genuinely separable features from the protected acts themselves that justifi ed the conclusion that the dismissal was not because of past or future protected acts but because the Claimant had lost trust and confi dence in his employer. The case of Martin v Devonshires Solicitors could not be regarded as some sort of template into which the facts of cases of alleged victimisation could be fi tted. On the evidence, the only proper conclusion was that the Appellant had been victimised by his suspension and dismissal.

The factsThe Respondent was responsible for managing a signifi cant proportion of the housing stock of Leeds City Council. Michael Woodhouse, who is black, was employed by the Respondent as a project offi cer. As such, he was required to work closely with the council and, in particular, had a working relationship with Mr Chapman, its principal surveyor.

Mr Woodhouse complained in October 2003 that Mr Chapman had displayed a racist attitude towards him and that his manager had not given him suffi cient support. Leeds City Council conducted an investigation and concluded there had been no discrimination and, in October 2005, Mr Woodhouse raised a grievance with his employer about this process. The grievance was upheld in part, although not in relation to discrimination. By that stage, he had been promoted to the post of principal regeneration offi cer. In December 2006, Mr Woodhouse was told that Mr Chapman had made racist comments about him to the effect that he “only got his job

because he was black”. This led to a second grievance but it was again found by Leeds City Council that Mr Chapman had not behaved in a racist manner and Mr Woodhouse’s grievance was rejected.

In 2007, Mr Woodhouse brought his fi rst Employment Tribunal claim alleging race discrimination, and over the course of the year launched a further three grievances. All of his grievances were rejected by the employer. Over the following four years, the Claimant raised a total of 10 grievances with the Respondent alleging race discrimination, each taken through a three-stage process, and nine Employment Tribunal claims. The Employment Tribunal fi ndings in respect of those were that after the fi rst two grievances (concerning the behaviour of Leeds City Council’s employees and their handling of his complaints), the Claimant repeatedly brought forward “empty allegations without any proper evidential basis or grounds for his suspicions” which “were investigated thoroughly and carefully by the […] Respondent, who decided on objective evidence, that they had no substance”. However, it was not suggested that the Claimant had brought the allegations in bad faith; his sincerity was accepted.

By 28 May 2010, Mr Woodhouse had submitted several claims to the Employment Tribunal, alleging that his treatment amounted to race discrimination. At that stage, an informal discussion took place between the Claimant and his line manager about his future. The line manager reported to the head of human resources that the Claimant had said that he had lost faith in the organisation and that he was only staying on in order to fi ght his cases.

The Respondent’s head of human resources began to be concerned that the Claimant was so disaffected that he could not remain as an employee. He had had some absences from work which triggered the sickness absence policy and the breakdown in working relations between employer and employee was highlighted by the occupational health advisors as being likely to result in ongoing high levels of absence.

The Claimant was placed on precautionary suspension and called to a meeting to discuss his future employment. The decision was taken by the Respondent to terminate the Claimant’s employment, on notice, for reasons which were described as including that he had loss all trust and confi dence in the Respondent organisation, that this would only change were the Respondent to accept that they had discriminated against him in the past, that the Respondent considered itself to have investigated all allegations and found them to be false

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Woodhouse v West North West Homes Leeds Ltd: EAT [2013] EqLR 797

and that there was not a sustainable working relationship going forward.

The Employment Tribunal concluded that the fi rst two grievances raised by the Claimant concerning his treatment at the hands of Mr Chapman and the way in which Leeds City Council had investigated that grievance were well founded and that Mr Woodhouse had indeed been subjected to race discrimination by Leeds. In relation to all the subsequent grievances, the Tribunal held that the Claimant’s complaints were without foundation and that his allegations of discriminatory treatment were wholly without merit. They therefore rejected his remaining claims of discrimination.

As for the claim of victimisation, the Tribunal held that the case was “on all fours” with Martin v Devonshires Solicitors. In that case, it was held that the dismissal of an employee who had made claims of sex discrimination did not amount to victimisation because the dismissal was genuinely due to factors which were “properly separable” from the allegations themselves – namely the fact that the allegations were wholly false, highly disruptive, made as a result of mental illness and likely to be repeated. In the present case, the Tribunal held that any employee who had raised grievances not related to race, but in a comparable way as the Claimant, would have been treated in the same way. The factors that stood out for the Tribunal were not simply that grievances were repeatedly made but that they were unfounded and that in the vast majority of cases they were substantially without any signifi cant evidential basis. It said the allegations of racism were “scattered around” in circumstances where there was clearly no basis for suggesting a racial element, and that there was a repeated pattern of grievances which were thoroughly and exhaustively investigated and objectively demonstrated to be false. Each time the Claimant’s grievances were rejected it fuelled his belief – which the Tribunal accepted was sincere – that managers and the organisation itself were racist in treating him that way. It was that conviction which led the Respondent to decide that the loss of trust and confi dence in them meant that the employment could no longer be continued.

On appeal to the EAT, Mr Woodhouse argued that the Tribunal had approached the issue of victimisation in the wrong way. His claim for victimisation, because of the date of his dismissal, was covered by the Equality Act 2010 (EqA), and he argued that the Tribunal had failed to appreciate that the defi nition of victimisation was changed in that Act with the result that it was no longer necessary to show that the Claimant had been treated less favourably than another person. All that was

required was that he or she was subjected to a detriment because he or she had done a protected act.

Section 27 of the EqA reads, so far as is material:“(1) A person (A) victimises another person (B) if A subjects B to a detriment because –(a) B does a protected act, or(b) A believes that B had done, or may do, a protected act.

(2) Each of the following is a protected act –(a) bringing proceedings under this Act;(b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.”

DecisionThe Employment Appeal Tribunal allowed the appeal and substituted a fi nding of victimisation.

The EAT HELD:(1) The Employment Tribunal erred in concluding that the Respondent did not dismiss the Claimant because he had complained of race discrimination and therefore did not unlawfully victimise him.

Although the Employment Tribunal had correctly directed itself as to the test to apply when considering a claim of victimisation contrary to s.27 of the EqA, it had failed to apply its own self-direction by adopting a comparative approach. Less favourable treatment is no longer a component of “victimisation” under the EqA but it was beyond argument that the actual analysis applied in the present case by the Tribunal was a comparative one. The relevant question the Tribunal ought to have asked itself was whether the Claimant’s conduct in raising frequent grievances alleging race discrimination had played any signifi cant part in the Respondent’s decision to dismiss.

(2) The provision in s.27(3) of the EqA that giving false evidence or information, or making a false allegation, is not a protected act within the meaning of the section if the employee acts in bad faith, provides only limited protection to an employer from the consequences of taking action where the allegation is false. It does not matter if the allegation,



evidence or information is wrong or incorrect – or, in the terms used by the Employment Tribunal in the present case, “ill-founded”, “substantially without any evidential basis”, “unfounded” and “objectively demonstrated to be false”– unless bad faith is made out. Bad faith had not been in issue in the present case.

(3) The Employment Tribunal had wrongly concluded that there was evidence of “genuinely separable features” justifying the conclusion that the dismissal was not because of past or future protected acts. It described the case as “on all fours” with Martin v Devonshires Solicitors but it was not apparent from the judgment what those “separable features” were found to have been. On the evidence, the only proper conclusion was that the Claimant had been victimised by his suspension and dismissal.

The case of Martin v Devonshires Solicitors, in which an employee was dismissed following repeated false allegations of sexual harassment which she was not, as a result of mental illness, able to accept to be false, cannot be regarded as some sort of template into which the facts of cases of alleged victimisation could be fi tted. Very few cases will be like Martin. There are no doubt exceptional cases where protected acts have not caused the dismissal, or whatever other detriment is at issue, and Martin is an example of such an exceptional case. Very few cases, however, will have grievances based on paranoid delusions about events that never happened. The process of measuring cases against such a yardstick is a dangerous one.

One person’s conviction that they have been discriminated against is very likely to generate the polar opposite – that is to say, that the complainant is irrational – in the person or organisation complained about. Experience of this type of litigation teaches that grievances multiply and so the fact that in the present case there was a series of them was not unusual. It was a slippery slope towards neutering the concept of victimisation if the irrationality and multiplicity of grievances could lead, as a matter of routine, to the case being placed outside the scope of s.27 of the EqA. All the more so when the origin of the problem was established, as in the present case, to have been real, as opposed to imaginary, race discrimination.

Before a case could be regarded as analogous to Martin, it is necessary to identify some feature of the protected acts which could properly be regarded as separable from them, as being the reason for the treatment complained of. Conduct or behaviour might be one type of separable feature. Other cases, like Martin, might involve a collection of separable

features, some of which related to behaviour (past and future) and some of which related to the employee’s state of mind, viewed both subjectively (that is to say, what the employee thought) and objectively (that is to say, what medical experts thought was the reality, and the cause, of the employee’s perception).

On any objective basis, the present case was not “on all fours” with Martin. This was illustrated by the clear factual differences between it and Martin but also by the diffi culty of the Employment Tribunal in articulating what the “genuinely separable features” were. The Martin concept is an unchallengeable factual fi nding that the reason for the detrimental action was other than the doing of a protected act in the past or the potential for such an act in the future. The relevant passages in the judgment of the Tribunal in the present case amounted to fi ndings that the Claimant had raised a number of grievances in the past, which had proved to be unjustifi ed, and his state of mind was such that he was likely to do so in the future. The Respondent’s position that the Claimant was dismissed because he had lost trust and confi dence in the organisation when coupled, as the Tribunal found it to be, with the avoidance of further repetition of grievances by ending the employment relationship, was no more than the Claimant being dismissed, if not because of past protected acts, then because of the belief of the likelihood of future protected acts. On the Employment Tribunal’s own factual fi ndings, that amounted to victimisation within the scope of s.27(1) of the EqA and the Tribunal erred in reaching any other conclusion.

Cases referred toAndrews v Software 2000 Ltd [2007] ICR 825 EATKhan v Chief Constable of West Yorkshire [2001] IRLR 830 HLMartin v Devonshires Solicitors [2011] EqLR 108 EATMcFarlane v Relate Avon Ltd [2010] IRLR 196 EATO’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615 CA Owen and Briggs v James [1982] IRLR 502 CAOyarce v Cheshire County Council [2008] ICR 1179 CAPasab Ltd t/a Jhoots Pharmacy v Woods [2012] EqLR 392 EATShamoon v Chief Constable of Royal Ulster Constabulary [2003] IRLR 285 HL

AppearancesFor the Appellant: Sam Healy, instructed by Morrish Solicitors LLPFor the Respondent: Carlo Breen, instructed by Ford & Warren



HIS HONOUR JUDGE HAND QC:

Introduction1. This is an appeal by Mr Michael Woodhouse (“the Appellant”) from the judgment of an Employ-ment Tribunal comprising Employment Judge For-rest, Ms Fawcett and Mr Lyons sitting at Leeds over fi fteen days in June 2011. The scale of the task facing the Employment Tribunal should not be underestimat-ed. It had over four thousand pages of documentary material to consider and it heard oral evidence from twenty-fi ve witnesses. It took two days to read into the material and there were ten days of oral evidence followed by three days of deliberation and the deliv-ery of an oral judgment on 30 June 2011. Written rea-sons were sought and a written judgment was sent to the parties on 22 September 2011. By it, the Employ-ment Tribunal upheld some of the claims made by the Appellant against Leeds City Council, the First Re-spondent, but dismissed his claims of race discrimina-tion, harassment and victimisation against West North West Homes (Leeds) Limited, the Second Respondent and Respondent to this appeal (“the Respondent”). The Employment Tribunal also found that the Appel-lant had been unfairly dismissed and came to the con-clusion that compensation should be reduced by 90%.

2. The Appellant has been represented by Mr Sam Healy of counsel and Mr Carlo Breen of counsel ap-peared for the Respondent. Both had appeared below. The appeal by the Respondent is limited to two aspects of the judgment, namely the rejection of the claim that the dismissal was an act of victimisation and against the reduction in compensation to 10% of the full value of the claim.

3. We are therefore not concerned with the fi nd-ings against Leeds City Council and Mr Chapman, who was the third Respondent, save that the Employment Tribunal adopted what might be de-scribed as an “holistic” approach to the case (see par-agraph 6 of the judgment) and a similar approach was urged on us by Mr Breen of counsel. Although the ap-peal is concentrated on the dismissal he submitted any consideration of that part of the history has to be set into a broader context and it is therefore necessary to consider the broad sweep of the case over a period of about seven years. In particular, although the focus of the appeal could be seen as more limited it is impor-tant, Mr Breen submitted, not to lose sight of the over-all perspective of a more or less continuous cascade of complaints about his treatment by the Respondent made by the Appellant over a period of more than four years. From 2005 onwards the Respondent was con-tinuously dealing with grievances (nine in total) and responding to complaints made to the Employment Tribunal (also nine in total). We agree that a broad perspective is helpful and, accordingly, we will at-tempt to summarise the narrative and, at the same time, examine briefly the conclusions of the

Employment Tribunal, irrespective as to whether or not they are the subject of the appeal.

The origin of the litigation4. The history of the relationship between Leeds City Council and the Respondent is explained at para-graph 15 of the Employment Tribunal’s judgment and we need say no more about it here than that by October 2003 some considerable proportion of the housing stock of Leeds City Council was being managed by the Respondent. The Appellant, who had originally been an employee of Leeds City Council, was by then work-ing for the Respondent as a Project Offi cer. He had a working relationship with Mr Chapman, who was em-ployed by Leeds City Council as its principal surveyor. At a meeting in October 2003, the Appellant alleged that Mr Chapman had told him that he had “an attitude problem”. The Appellant, who is of black ethnicity, re-garded this as “a racist remark”. He made no formal complaint at the time. Over the following period, how-ever, he came to feel that his manager, a Mr Walker (and we should make it clear not the same Mr Walker featuring later in the history), who had been present at the meeting in October 2003, had not given the Appel-lant adequate support and that he, Mr Walker, was also guilty of racist attitudes.

5. At paragraphs 27 to 35 of the judgment are a se-ries of fi ndings about Mr Chapman’s conduct, not only in October 2003, but also at the end of 2006 and in 2007. That there had been some sort of investigation by Leeds City Council into at least some of these matters is borne out by paragraphs 28 and 33 of the judgment. The Employment Tribunal made fi ndings of racial har-assment against Mr Chapman (see paragraphs 28 and 32) and held that the conduct of the investigation by Leeds City Council and the conclusions reached by it, namely that there had been no discrimination by reason of race, itself amounted to direct race discrimination.

The fi rst grievance6. Ultimately, the Appellant raised a grievance about these exculpatory conclusions reached by Leeds City Council in October 2005. By then he had been promoted to Principle Regeneration Offi cer; as we un-derstand it both posts involved management responsi-bilities and the Employment Tribunal recorded at para-graph 10 of the judgment that “he was always well regarded by his employees”. This grievance was up-held in part, although not in relation to discrimination or bullying. The Respondent’s grievance procedure provides a three-stage process. At the fi rst stage of this grievance Peninsula Business Services Limited, a con-sultancy, which had a business relationship with the Respondent, was engaged to provide the input of Mr Barrett, one of its consultants. He prepared a report, which the Appellant subsequently characterised as in-adequate, but the Employment Tribunal found that it was neither inadequate nor had it been wrong and un-reasonable for the Respondent to accept it (see para-graphs 36 and 37 of the judgment).



7. The Employment Tribunal, however, regarded this fi rst stage as having been “a missed opportunity” (see paragraph 38 of the judgment). This grievance went to a second stage. The investigating offi cer was Ms Wanless. Her conduct of the second stage of the grievance procedure between August 2006 and October 2006 was found by the Tribunal to be “innocent of any taint of discrimination on racial grounds, harassment or victimisation” (see paragraph 39 of the judgment). As Mr Breen pointed out to us, this was to be a formula-tion reiterated by the Employment Tribunal in its ex-amination of nearly every stage of the series of griev-ances, which it was considering.

8. The Employment Tribunal found that, although it disagreed with her conclusion, in her conduct of the second stage of the fi rst grievance, Ms Wanless had not acted unlawfully, nor had she deliberately delayed the third stage, which was not completed until August 2007, and so, likewise, her conduct in relation to the third stage had not been unlawful (see paragraphs 40 and 41 of the judgment). The Appellant, of course, had to wait another six or so years before he was vindicated in respect of the treatment of him by Messrs Chapman and Mr Walker and the Employment Tribunal obvious-ly took a different view to that formed by Ms Wanless.

9. But this was understandable thought the Tribunal. The Tribunal says this at paragraph 41:-

“We comment that her understanding of harass-ment is limited because, in giving weight to the in-tention of the harassor she ignores the effect on the recipient. However, that lack of understanding on her part does not mean that she was infl uenced by Mr Woodhouse’s racial origins, or that she reached that conclusion because she was victimising him for raising the complaint of discrimination, or that she was harassing him on racial grounds in reach-ing that conclusion. We have come to a different conclusion from her, after fuller consideration of the evidence relating to the incident with Mr Chap-man, but we bring a different and legal perspective to bear on it.”

Ms Wanless had refused to look at some diaries which the Appellant wished to produce at the second stage meeting. Despite the fact that the Employment Tribu-nal did not know the contents of the diaries, it came to the conclusion that although this was another “missed opportunity” (see paragraph 43 of the judgment) there had been no “less favourable action on racial grounds towards [the Appellant] or that it constituted racial ha-rassment or that she victimised him in this respect for having brought forward his complaints of racism.” As with all his other grievances, the Appellant took this to the third and last stage of the procedure but Councillor Alison Lowe and her third stage panel confi rmed the decision of Ms Wanless and the Employment Tribunal regarded that disposal as not open to criticism and not calling for any further explanation (see paragraph 44 of the judgment).

The second grievance10. In the meantime, in December 2006 the Appel-lant had been told that Mr Chapman had made racist comments about him. This information came from a colleague called Ms Meskouri, who said that she had heard Mr Chapman saying that the Appellant “had only got his job because he was black”. It also transpired that Mr Chapman had a habit of calling colleagues by nick-names such as “ladyboy” and “Bin Laden”. The Appel-lant commenced a second grievance in January 2007.

11. The Tribunal, in the proceedings between the Appellant and Leeds City Council, found that Mr Chapman had made these remarks and that they amounted to racial harassment (see paragraph 32 of the judgment). The Employment Tribunal also found that the subsequent investigation by Leeds City Council into that grievance was inadequate to the ex-tent that the burden of proof shifted and an explanation was called for, which explanation the Tribunal found to be unsatisfactory. Consequently, the Employment Tribunal upheld the complaint of direct race discrimi-nation against Leeds City Council (see paragraph 34 of the judgment).

12. Investigations conducted by Leeds City Council at the fi rst stage of the second grievance caused a delay in the investigation being conducted by the Respondent at the second stage. The second stage was not started by the Respondent until July 2007 and not completed until the end of January 2008. Initially Ms Thorne, who was considering the grievance, limited the scope of her inquiry to a period of three months before the griev-ance was lodged (as apparently the grievance proce-dure required) but when the Appellant protested she broadened the scope to the period of twelve months be-fore the complaint was lodged. Even so the earlier complaints made about the behaviour of Mr Chapman were never considered. The Employment Tribunal con-cluded that the delay did not amount to race discrimi-nation, victimisation or harassment (see paragraph 45 of the judgment) nor did the limited scope of the in-quiry (see paragraph 46 of the judgment). But the Employment Tribunal was critical of the conclusions reached by Ms Thorne. Firstly, they found it diffi cult to understand why she accepted that Mr Chapman had made the “unambiguously racist comment” that the Appellant had “only got the job because he was black” in January 2007 but rejected evidence from the same source that the same or similar had been said repeated-ly over the previous six months. Secondly, the Employment Tribunal could not understand the distinc-tion she made between that comment and other deroga-tory comments, which she found not to be racist be-cause Mr Chapman made them to others as well as to the Appellant (see paragraph 47 of the judgment). Nevertheless the Employment Tribunal concluded that her reasoning whilst it might be logically imperfect was “an honest view” and was not “affected by any taint of racism”. But it was acknowledged that (see paragraph 48 of the judgment):



“… it left Mr Woodhouse with, in our view, an un-derstandable (at the time) sense of grievance that the full range of his complaints against Mr Chap-man had never been properly investigated and had not been fully upheld.”

13. Ms Thorne’s fi ndings were endorsed at the third stage of the second grievance in June 2008 by Councillor Lowe, who the Employment Tribunal found to have been “strongly sympathetic towards the Appellant” albeit “constrained by her position at stage 3 by the Respondent’s procedural rules which she loy-ally followed”. The Employment Tribunal found that in respect of this stage of this grievance the Appellant had “misheard or misinterpreted” Ms Lowe and that she had not made any “disparaging comment” about his complaint (see paragraphs 49 and 50 of the judgment). Consequently her conduct of this stage of the grievance was not racially motivated.

The third, fourth and fi fth grievances14. The Appellant’s health had been adversely af-fected; he was off work with stress between February 2007 and September 2007 and in that period, namely in May 2007, he lodged his fi rst claim in these proceed-ings. When he returned to work in September 2007 he lodged his third grievance. This was followed shortly afterwards by a fourth grievance which he lodged in October 2007. The following day he lodged his second ET1 form.

15. These third and fourth grievances were about delay in dealing with his previous grievances, about complaints he made in relation to sick pay, about a sug-gestion that he be considered for referral for Cognitive Behavioural Therapy, which had been made in July 2007, about the reallocation of duties on his return to work and about his returning to different duties. By the end of November 2007, the third and fourth grievances had been investigated and rejected by a Ms Austin of the Human Resources Department.

16. On 15 January 2008, the Appellant lodged his third set of proceedings in the Employment Tribunal and in March 2008, he submitted his fi fth grievance. This complained of the allocation of staff and duties and of continued victimisation and harassment because he had made the previous complaints. Because Mr Evans, the Head of Customer Services was considering the third and fourth grievances at stage two it was de-cided that he should, at the same time, consider the fi fth grievance. In total he had to consider some 22 com-plaints His investigation and hearing in respect of all three grievances took place between February 2008 and June 2008 but it was not until October 2008 that he published his decision that rejecting all three.

17. The third stage was once again conducted by a panel chaired by Councillor Lowe. Her panel rejected all complaints and it seems her sympathy had evapo-rated by this time because the rejection was in the fol-

lowing uncompromising terms (taken from the deci-sion letter - see paragraph 20.32 of the judgment):

“Neither you nor your Trade Union Representative put forward any evidence which either substanti-ates, or even suggests, a link between either your race or your previous grievances and the specifi c matters which are the subject of your complaint. Therefore, the panel have concluded that the alle-gations of race discrimination/victimisation are completely without merit and have not been made in good faith. … It is clear from what was said dur-ing the appeal by both yourself and your Trade Union Representative, Mr Stephen Clark, that you no longer have trust or confi dence with WNWHLL and that you perceive that this relationship has now broken down. Whilst it is extremely disappointing, that is not an issue which is within the remit of the panel to explore further.”

18. One of the matters of which the Appellant had complained (as part of the third grievance) was the suggestion that it be investigated whether or not Cognitive Behavioural Therapy might be helpful in his case. He alleged in these proceedings that this consti-tuted race discrimination. Although the Employment Tribunal recognised it might be a natural reaction on the part of the Appellant to think this suggestion im-plied that his mental health might be impaired, the Employment Tribunal regarded the suggestion as an attempt by the Respondent to be helpful; it was after all only a suggestion that the possibility be investigat-ed. The Employment Tribunal regarded the allegation that this constituted race discrimination, victimisation or harassment as “fanciful” (see paragraphs 51 and 52 of the judgment). This refl ects the trenchant remarks made by Councillor Lowe (on behalf of her panel) and marks something of a watershed in the Employment Tribunal’s narration of the history. Up to then it had expressed some sympathy for the Appellant’s situa-tion; from then on the adjectives used reflect a less sympathetic attitude.

19. Another aspect of these grievances had been the Appellant’s complaint that after six month’s absence through illness his pay had been reduced by half and no discretion had been exercised in his favour. The Employment Tribunal accepted that the only time dis-cretion was ever exercised to continue full pay after more than 6 months of sickness absence was in cases of terminal illness and therefore did not regard the re-jection of this complaint as amounting to race discrimi-nation (see paragraph 53 of the judgment). Nor was there anything for the Respondent to explain further about the delay in restoring full pay after his return nor the fact that he was not given back all his old duties or clients nor in the delay in returning documents or notes to him nor in the misdating of correspondence (see par-agraphs 54, 55, 56, 57 and 59 of the judgment).

20. Of a somewhat different character was the alle-gation that Ms Thorne had asked the Appellant wheth-



er he thought that he might have applied “undue pres-sure” on Mr Chapman, “which may have provoked Mr Chapman’s comment”. The Employment Tribunal seems to have accepted that this had happened but concluded that this was not objectionable because it was appropriate and said (see paragraph 58 of the judgment):

“The words used by Mr Chapman may have car-ried a racial connotation or they may not, depend-ing in part on whether they were provoked or not. The questioning was appropriate and proportion-ate; we cannot see anything which calls for an ex-planation in this situation.”

No doubt aspects of the above could be the subject of further debate; it may open to question as to whether they command universal acceptance. But this part of the judgment is not subject to any appeal and the passage may only be notable as confirming that the sympathy of the Employment Tribunal appears to have ebbed away by this point.

21. This is also evident in its analysis at paragraph 60 of the judgment of another of his allegations investi-gated under the umbrella of the third, fourth and fi fth grievance, namely that he had been deliberately sad-dled with the management of a diffi cult colleague, a Ms Kim Towey. The Employment Tribunal described this as:

“… a clearly contrived allegation with no objective basis in reality at all.”

The sixth and seventh grievances22. In late July 2008, there was a telephone conver-sation between the Appellant and Ms Carol Brook1, a female colleague, which resulted in cross-allegations being made by the Appellant and Ms Brook about in-timidation and hostility. Subsequently, Ms Brook raised a complaint against the Appellant and the matter was investigated. The Appellant’s account was accepted, but it was suggested that he should apologise to Ms Brook. He refused. In September 2008, he went off sick again and he was off work until 3 December 2008. Meanwhile on 24 November 2008, the Appellant sub-mitted his fi fth complaint to the Employment Tribunal.

23. Just before the end of 2008, the Appellant sub-mitted a sixth grievance complaining both about Ms Brook and the subsequent investigation into that inci-dent by Mr Carlill. The Employment Tribunal com-mented as follows at paragraph 66:-

“We are not surprised that Mr Woodhouse was un-willing to apologise; indeed, he did not just take offence at this suggestion; he believed it was moti-vated because of his racial origins; that this was an act of discrimination by Mr Carlill against him. He believed that Mr Carlill was effectively “setting him up” and that if he made such an apology, he would lay himself open to disciplinary action should Miss Brook subsequently make a complaint about his action. We are not persuaded that there is

anything in this exchange that calls for an explana-tion, but if we are thought wrong on that, having heard Mr Carlill’s explanation, we accept it. He says that he was simply trying to sooth troubled waters. There had evidently been a row and some misunderstanding between two employees; if Mr Woodhouse could take the relatively easy step of expressing regret for any distress that he had inad-vertently caused Miss Brook, that would be an end of it. It would be easier all round if Mr Woodhouse could “be a man” and do so. We see nothing offen-sive in that comment, and nothing that indicates any element of race, victimisation or harassment.”

24. When all of this was raised as the sixth griev-ance by the Appellant in September 2008 it was subse-quently investigated by a Miss Rhodes, who is de-scribed by the Employment Tribunal as “an independent investigator employed by Eversheds, a fi rm of solici-tors. In the meantime the Appellant submitted his sixth ET1 form.

25. Ms Rhodes reported in writing, apparently at some length, in April 2009. She rejected the grievanc-es and although the decision was formally communi-cated by Mr Charters, the Head of Finance, it was es-sentially hers. The matter then proceeded to the second stage to be conducted by a newly appointed manager, Mr Walker (a different person to the man with the same name, who had been involved earlier in the nar-rative). But the Appellant perceived problems over the conduct of the management team and what he saw as interference with witnesses. He had been asked initial-ly to supply a list of questions, which he intended to put to witnesses, although when he refused the request was withdrawn. He then learned that the witnesses had been interviewed by Mr Charters and he withdrew from the process. The grievance continued to be inves-tigated and considered in his absence and it was ulti-mately rejected.

26. The Appellant submitted his seventh grievance on 20 August 2009. This complained about the conduct of management in relation to the sixth grievance. By September 2009, the Appellant was again off work with a stress-related illness and on 9 October 2009 he submitted his sixth ET1 form.

27. During this absence through illness, there were two developments. Firstly, the third stage hearing of his sixth grievances was combined with the seventh griev-ance and dealt with by Councillor Lowe and her panel. The panel asked for grounds of appeal. The Appellant refused to supply them on the basis that it was not part of the procedure. There were hearings in December 2009 and February and March 2010 but in April 2010 his grievances were rejected on the basis that although Mr Carlill could have handled the matter differently there was no evidence of race discrimination or victim-isation. The Employment Tribunal accepted, as did Councillor Lowe’s panel, that there had been no inter-



ference with witnesses and that it had been perfectly reasonable to seek grounds of appeal.

The eighth and ninth grievances28. The second development during the Appellant’s absence in late 2009 was that the funding of the depart-ment in which he worked was cut and the structure al-tered. Consequently, on the day that he returned to work, 18 December 2009, the fi rst thing that he had to under-take was an interview for the post of Project Manager. As we understand it this was a series of interviews with managers at that level to determine who should be re-tained at that level, there now being insuffi cient funds to keep all the managers. The Appellant was not successful. Apart from the fact that he had just been absent through illness for three months, in his opinion in the period be-fore that absence he had not been doing the full range of his work and he had been “systematically de-skilled”.

29. A meeting was arranged for 11.00 a.m. on 23 December 2009 to discuss the Appellant’s future. The manager was not able to attend at that time. He came later but the Appellant had left by then and gone home. The Employment Tribunal found that the manager had been unavoidably detained at another meeting. As a re-sult the Appellant immediately submitted his eighth grievance complaining about cancellation of the meet-ing. He also complained about having been “de-skilled” and about the Respondent having manipulated the situ-ation so as to manoeuvre him into selection for redun-dancy because of his previous allegations of race dis-crimination, victimisation and bullying.

30. When the Appellant returned after the Christmas and New Year break, he asked for a phased return to work. This was refused. When he was paid in late January, he was still paid on half pay, which had been appropriate whilst absent through illness. He was not paid at the full rate or in respect of any arrears until February 2010. Consequently, on 17 January 2010 the Appellant submitted his ninth grievance, which raised the refusal to permit a phased return to work and the failure to pay him at the correct rate. In 2010 the Respondent changed the grievance procedure to require any appeal to be supported by written grounds.

31. Both the eighth and ninth grievances were con-sidered at the fi rst stage by Ms Bleasdale. She started her investigation on 1 March 2010. It took some time for her to investigate and her decision was not sent out until August 2010. She rejected his complaint that he had been deskilled as part of a deliberate plan to get rid of him and the Employment Tribunal said at paragraph 72 of the judgment:

“It was probably inevitable that, following such a period of sickness absence, Mr Woodhouse’s per-formance at interview would be adversely affected. He would not have all the issues immediately at his fi ngertips, as he might well have done had he been at work. We can see nothing in the fact that he was not offered a job that indicates it was infl uenced by

racism, victimisation or harassment to any extent. We fi nd the suggestion that any deskilling on his part had been deliberately engineered by the Re-spondents fanciful.”

32. Nor was there any basis for the allegation, re-jected by Ms Bleasdale, that the failure of Mr Vickers to attend the meeting on 23 December 2010 on time or return a call, if he had been requested to do so, which was by no means certain, had been a deliberate slight giving rise to an inference of racism. Likewise the fail-ure to restore full pay and pay arrears until February and the refusal of a phased return to work were rejected as direct discrimination victimisation or harassment, a conclusion, which the Employment Tribunal endorsed. The former could be explained by the fact that the Appellant had returned to work without notice, inclem-ent weather and internal delays. As to the latter, the Employment Tribunal thought that, in effect, the Christmas and New Year break constituted a phased re-turn to work but, if the request had been refused, all management had done was to follow the established policy of not having a phased return to work.

The tenth grievance33. As a result of his failure to secure the post of Project Manager, the Appellant had become supernu-merary and was given ad hoc tasks whilst attempts were made to find him alternative work. There was some talk of voluntary severance. On 27 April 2010, Ms Austin of the Human Resources Department, wrote an erroneous letter about the Appellant having refused a proposal for voluntary severance; this was simply wrong because he had not refused anything.

34. On 12 May 2010, there was a meeting to discuss the Appellant’s future, but it was cancelled at the last moment. Two days later the Appellant submitted his tenth grievance complaining of the cancellation of the meeting, about the erroneous voluntary severance letter of 27 April 2010, that he had been told that any further sickness absence would result in his position being con-sidered under stage three of the sickness attendance poli-cy and that he was the only former Project Manager, who had been declared supernumerary. Mr Beynon consid-ered and dismissed this tenth grievance in September 2010. This rejection was endorsed by the Employment Tribunal; the allegation that the letter referring to an offer of voluntary severance, when none had been made, could amount to discrimination was regarded by the Employment Tribunal as “bizarre”; it was plainly an error. The letter threatening Stage 3 of the absence pro-cedure had never been sent. The fact that the Appellant was the only former Project Manager declared supernu-merary was explicable by the fact that one manager had retired and the other had been seconded to other duties because of his experience at a higher level.

The grievances – the overall picture35. At paragraphs 85 and 86 of the judgment the Employment Tribunal reminded itself that the total is



sometimes greater than the sum of its parts and stepped back to look and see whether there was an overall pat-tern and concluded that there was and identifi ed it as being:

“85. … that, after the fi rst two grievances when Mr Woodhouse’s complaints had some substance, Mr Woodhouse repeatedly brought forward empty al-legations without any proper evidential basis or grounds for his suspicion; that these were investi-gated thoroughly and carefully by the Second Re-spondent, who decided on objective evidence, that they had no substance; Mr Woodhouse then pur-sued those grievances through to the second and third stages, persistently refusing to accept that there was any reason for the rejection of his griev-ances, other than that those investigating, whoever they happened to be, and whether they had any his-tory with the organisation, or indeed were indepen-dent of it, were motivated by his racial origins in rejecting them, that the rejection was because he had earlier made complaints of racism, or that the rejection was itself an act of racial harassment. In-deed, the very fact of the subsequent rejections came, in turn, to fuel Mr Woodhouse’s conviction that he was the victim of a pattern racism perpetu-ated at every level throughout the organisation. Any Manager who ruled against him in connection with the grievance was themselves tainted with racism, right through to consideration at stage 3 by Ms Lowe and her panel.

86. That conclusion of ours was effectively shared, save for our findings in relation to the first two grievances, by the management of the Human Re-sources Department of the Respondents. …”

In short, although there had been shortcomings in relation to the way that the grievances in relation to Mr Chapman had been investigated and decided, as to the rest of the allegations, after “stepping back” the Employment Tribunal entirely agreed with the Respondent’s approach.

The suspension and dismissal36. On 28 May 2010, the Appellant submitted his seventh claim to the Employment Tribunal. Four days before that, on 24 May 2010, the Appellant and Mr Vickers, his line manager, had an informal discussion. The Employment Tribunal noted that there was some dispute about what was actually said in this conversa-tion, which had lasted for about 30 minutes. At para-graph 87 of the judgment the Employment Tribunal found:

“There was subsequently some dispute between the parties over the precise words attributed by Mr Vickers to Mr Woodhouse, when Mr Vickers was subsequently asked for his account of the meeting some weeks later. It maybe, as Mr Woodhouse maintains, that he did not expressly use the words “exit strategy” or “institutional racism” to describe the organisation. Nevertheless, we are persuaded that Mr Woodhouse’s plans for his future after he

had left the organisation were discussed, and that the level of dissatisfaction on racial grounds he ex-pressed with the organisation was profound and ap-plied to every level. We are satisfi ed that the views expressed by Mr Woodhouse at the meeting were aptly summarised by words used to describe them by Mr Vickers, including “exit strategy” and “insti-tutional racism.”

This is reiterated at paragraph 89 of the judgment.

37. Subsequently, Mr Vickers reported the content of this discussion to the Head of Human Resources, Ms Nicholson, via two e-mails sent on 5 July 2010 and 8 July 2010 in terms of the Appellant (see paragraph 20.48 of the judgment):

“… saying he had lost faith in the organisation, that he was only staying in order to fi ght his cases.”

38. Having discussed the position with a director of the Respondent, Ms Nicholson read through all the ma-terial and, as the Employment Tribunal put it at para-graph 20.49, she:-

“… was concerned that, if Mr Woodhouse really was as disaffected as his remark showed, had so little faith in the organisation, then he could not re-ally remain as an employee. She was unsure what procedure the organisation could follow to resolve the issue: the disciplinary procedure was inappro-priate, since it was not a case of misconduct; nor was it the case that WNWHLL had lost trust and confidence in Mr Woodhouse; rather, it was the other way round. She took advice from solicitors; she decided that a formal hearing should be held, following the model of the disciplinary procedure; that Mr Woodhouse should be invited to attend; should be given the information the organisation was relying on beforehand; should be given a fair opportunity to put his case; and should be warned that his employment was at risk.”

39. By August 2010, the Appellant was absent through illness again. He had reached stage two of the sickness absence policy and sometime earlier, in February 2010, had been referred to Occupational Health, who had reported in these terms:-

“The signifi cant breakdown in working relations between an employee and the organisation is likely to result in ongoing high levels of absence for the employee.”

40. As a result of the absence, which started on 2 August 2010, a further report was commissioned from the Occupational Health department. This said:-

“Ongoing negative perceptions of work are main-taining [the Appellant’s] anxiety condition and if they remain unresolved his stress levels are likely to periodically rise again to a level where he would feel unable to continue at work. His perceptions in this regard would tend to defi ne the occupational prognosis.”



The report also referred to “a number of deep-seated and complex issues linked with his past and current experiences with WNWHLL” (see paragraph 20.51 of the judgment).

41. As a result of this intelligence Ms Nicholson took legal advice about the extent to which the Appellant was disaffected. As the Employment Tribunal put it at paragraph 20.49 of the judgment she was concerned whether an employee “as disaffected as his remarks showed” and who “had so little faith in the organisation … could not really remain as an employ-ee.” She was unsure as to the procedure to follow; this was not a case of misconduct and it was not the Respondent who had lost trust and confi dence in the Appellant “it was the other way round”.

42. In the result the Appellant was invited to a hear-ing on 10 September 2010 at the offi ce of the solicitor appointed to conduct the hearing. The letter inviting his attendance was written in these terms:-

“The purpose of the hearing is to discuss your ongo-ing employment relationship with West North West Homes Leeds. A potential outcome of the hearing may be your dismissal with pay in lieu of notice.”

The Appellant was placed on what was called “precautionary suspension”. The Employment Tribunal expressed unease as to the terms of this letter, which is described at paragraph 86 as “a highly unusual, indeed extraordinary document.” The Employment Tribunal goes on to say that it “certainly calls for an explanation”. Whether this is simply an expression of how unusual the Employment Tribunal found the letter or it is used in the technical sense of invoking the “reverse burden of proof”, is not clear. The Employment Tribunal expands on this as follows:

“Apart from the central feature of it, that the Re-spondents are inviting Mr Woodhouse to a meeting at which his dismissal may be considered, some of the relatively minor aspects of the letter are them-selves potentially threatening and call for an expla-nation. For example the meeting is to be held at the offi ces of Solicitors, rather than the Respondent’s own offi ces and Mr Woodhouse is asked to bring with him any property of the Respondents which he had retained. Those may reasonably be thought to give an indication that dismissal is not simply a matter to be considered, but is the likely outcome of the meeting.”

43. Not surprisingly, the Appellant asked a number of questions and these resulted in a letter from Ms Nicholson dated 3 September 2010 which said:-

“The purpose of the hearing is to discuss your on-going employment relationship with WNWHLL and whether a productive employment relationship is sustainable going forward. In considering this matter, regard will be had to:(a) Your recent meeting with Michael Vickers on 24 May 2010;

(b) Your declaration on various occasions that you have lost trust and confi dence in WNWHLL and its senior staff; and(c) The numerous allegations you have made about numerous members of staff over the last 5 years.”

The letter went on to explain that the hearing was being held at a solicitor’s office because there were no suitable rooms available at the Respondent, but that (see paragraph 20.53 of the judgment):-

“… it was not a disciplinary hearing, there was no formal procedure, but they would mirror the disci-plinary hearing process.”

The meeting was postponed and rearranged for 4 October 2010. About ten days before, the Appellant received a bundle of documents, comprising transcripts of various grievance meetings, together with the two e-mails sent by Mr Vickers, to Ms Nicholson on 5 July 2010 and 8 July 2010.

44. When the meeting started on 4 October 2010, the Appellant, together with his trade union representa-tive, protested at the nature of the meeting and argued that if, as had been asserted, it was to mirror the disci-plinary procedure, then there should be an investigation and various people should be interviewed. As a result, the hearing was adjourned and later both the Appellant and Mr Vickers were interviewed. The hearing started again on 21 October 2010. In the meantime, the Appellant had submitted his eighth ET1 form on 11 October 2010 and, more signifi cantly perhaps, he was interviewed once more for the post of Project Offi cer. This time he was successful.

45. At the hearing Ms Nicholson, the head of Human Resources, argued that the Appellant had clearly lost trust and confi dence in the organisation, that employees had been distressed about the allegations of racism and that it was time for his employment to end. The Appellant accepted that he had lost trust and confi dence in a number of individuals, who could be said, in effect, to comprise senior management, but that he still had confidence in the organisation. The Employment Tribunal thought these “protestations were half hearted and carried little weight, in context” (see paragraph 92 of the judgment).

46. The meeting had been chaired by Mr Walker, the head of Tenancy Management at the Respondent. He concluded the Appellant should be dismissed and wrote to say so in a letter dated 27 October 2010. In that letter he expressed himself in these terms:-

“That you have lost all trust and confi dence in WN-WHLL and that that has been the position for some considerable time. I have considered whether there can be a sustainable working relationship going for-ward. I do not consider that there can be. It is clear from both your own statements and occupational health advice that your view of the organisation would only change if your allegations for discrimi-



natory conduct are accepted and that WNWHLL operates, in your words, a discrimination-free envi-ronment. WNWHLL considers that it does offer a discrimination-free environment. Your numerous allegations of discrimination have been taken seri-ously, but were ultimately not upheld following thorough investigations. I note that on occasion some of the panels have found that particular ac-tions were not satisfactory, but that did not amount to discrimination. I do not believe that there can be a sustainable working relationship going forward.”

47. The Appellant was not required to work his no-tice and was to be paid twelve weeks in lieu of notice with his last day of employment being 28 October 2010. On 11 November 2010, the Appellant submitted his ninth complaint to the Employment Tribunal.

48. He appealed against his dismissal asking that the post of Project Officer should be held open for him pending the outcome. The Respondent was not able to accede to that request. By then, the Appellant had be-come ill again and as a result the appeal was not heard until May 2011, when it proceeded in his absence, al-though he was represented by a trade union offi cial. His appeal was rejected, the appeal panel fi nding (see para-graph 20.60 of the judgment:-

‘The relationship between you and WNWHLL has irretrievably broken down and trust and confi dence no longer exists between the parties.’

The Employment Tribunal’s conclusions49. At paragraph 21 of the judgment the Employ-ment Tribunal had set out the provisions of the Race Relations Act 1976 (“RRA”) with this preamble:

“So far as the complaints of race discrimination, racial harassment and victimisation are concerned, the statutory provisions are set out in the RRA. We are aware that Mr Woodhouse’s dismissal, and the subsequent rejection of his appeal, occurred after the Equality Act 2010 came into force on 1 Octo-ber 2010. We do not set out the provisions of the Equality Act in detail, if only because there are no signifi cant differences; there is a difference in rela-tion to the burden of proof for the claims of victi-misation only.”

This was consistent with the view expressed in paragraph 4 of the judgment whether Employment Tribunal had said:

“Since Mr Woodhouse’s dismissal occurred after 1 October 2010, the claims of race discrimination, victimisation and harassment which relate to it (and to the subsequent rejection of Mr Woodhouse’s ap-peal against dismissal in May 2011) fall to be dealt with under the Equality Act 2010. As it turns out, in view of our fi ndings of fact, nothing turns on the difference in wording between the two statutes. Nor do we need to consider what might be a diffi -cult question of the precise effect of the transitional regulations which introduced the Equality Act.”

We will need to come back to this later in this judgment.

50. At paragraphs 92, 93 and 94the Employment Tribunal say this:

“92. … Mr Woodhouse maintained nevertheless that he had always done his job properly and would con-tinue to do so; that was never challenged by the Re-spondent, and indeed, never has been challenged by the Respondent. At no stage, has any Manager ex-pressed, either in any of the grievance proceedings or to us in evidence, any doubt or reservations about Mr Woodhouse’s abilities when performing his job.

93. Passing reference is made at the end of the tran-script about the consequences of Mr Woodhouse’s behaviour in raising his various allegations for the organisation; the distress that that had caused other employees; and to the risk to the organisation of his remaining in employment with that antagonistic at-titude towards the organisation; but that is not the substance of the meeting and does not refl ect the substance of the reasons of the Respondent in dis-missing him. Much of the meeting is taken up with the comments of Mr Woodhouse and the context in which they were made, which is of course the vari-ous grievances he had taken over the preceding years.

94. Having read the transcript of that meeting and heard the various witness’ evidence, we fi nd that the various management witnesses credible in their evi-dence when they said that it was the extent of Mr Woodhouse’s loss of trust and confi dence in the or-ganisation which concerned them and which led Mr Walker to dismiss Mr Woodhouse after the conclu-sion of the meeting. They were driven to adopt the process followed outside any normal procedure be-cause the situation was unprecedented. There was no procedure that covered it. We have said above that the Respondent’s actions in fi rst suspending and subsequently dismissing Mr Woodhouse certainly call for an explanation from the Respondents. We are persuaded by the witness’ explanation to find that their decision to suspend and subsequently dis-miss Mr Woodhouse was not taken on racial grounds to any extent. We fi nd that a comparable employee, who had evinced similar profound and long-stand-ing lack of faith by submitting similar ill-founded grievances, but without any racial connotation, would have been similarly treated. We find these were not acts of direct discrimination, nor were they acts of harassment on racial grounds.”

51. The Employment Tribunal then turned its atten-tion to the question of victimisation and asked itself this question at paragraph 95:

“Was Mr Woodhouse victimised, treated less fa-vourably than others would have been treated when he was suspended and then dismissed, by reason that he had made repeated complaints of race dis-crimination to the Second Respondent?”



The suspension had occurred before 1 October 2010 and at paragraph 96 of the judgment the Employment Tribunal recognised that might require a different approach to the burden of proof than would be the case in respect of the dismissal, which occurred after 1 October 2010. In reality, however, the Employment Tribunal thought that in both instances there would need to be “clear and compelling evidence” that there had been no victimisation.

52. In fact the Employment Tribunal resolved the issue of victimisation against the Appellant by drawing a distinction between “the context in which various comments were made and Mr Woodhouse’s various grievances themselves” (see paragraph 97 of the judg-ment). This led them to the conclusion that the instant appeal was “on all fours” with Martin v Devonshires Solicitors [2010] UKEAT 0086/10 and to explain the distinction in this way (see also paragraph 97):

“We are persuaded on the evidence that another employee who had made non - racial grievances would have been treated in the same way. The fac-tors which stand out for us in this case are not sim-ply that grievances were repeatedly made by Mr Woodhouse, but that they were unfounded griev-ances; that, in the vast majority of cases, apart from the fi rst two grievances in 2005 in January 2007, they were substantially without any signifi -cant evidential basis. Moreover, the allegations of racism were scattered around in circumstances where, in the majority of cases, there was clearly no basis for suggesting a racial element. It is strik-ing that several of the more recent grievances were considered by managers who had little or no previ-ous involvement with the organisation or with Mr Woodhouse. There is no basis in the background for suggesting that they should have been motivat-ed by any personal involvement with Mr Wood-house, let alone his racial origins, yet Mr Wood-house reaches the conclusion that their fi ndings are tainted by race, simply because they fi nd against him, despite the persuasive and objective evidence in favour of their conclusions.”

53. In the next passage of the judgment, paragraph 98, the Employment Tribunal expands that as follows:

“There was, in this case, a repeated pattern of grievances which we have described above, which were thoroughly and exhaustively investigated and objectively demonstrated to be false. That is the distinctive pattern in this case which enables us to say that this is not a case of victimisation because he had complained of racial discrimination. More-over, the results of those grievances themselves fed what had become, by the end, an obsession, a fi xation. Each time Mr Woodhouse’s grievances were resolved, it fuelled his belief (accepted by all parties as sincere), that managers and the organisa-tion itself were racist in treating him in that way. It is that conviction of Mr Woodhouse, however it was an expressed, which led the Respondent to de-

cide that his loss of trust and confi dence in them meant that his employment could no longer be continued. Continuing his employment would re-sult, at some future date, in further allegations, themselves damaging and taking up considerable time. That was not a risk the organisation was pre-pared to run. Having reached those conclusions, we therefore reject the claim of victimisation; Mr Woodhouse was not treated less favourably in his dismissal by reason that he had made earlier com-plaints of race discrimination.”

54. We will need to return to the reasoning disclosed in the above passage later in this judgment but it is con-venient at this point to dissect it into the following com-ponents:i. grievances had been objectively demonstrated to be false;ii. that enable the Employment Tribunal to say that this was not victimisation;iii. the Appellant had become obsessed; iv. the rejection of one complaint would be bound to lead to another;v. the Respondent was no longer prepared to run the risk of further damaging and time-consuming allegations.

55. On the issue of unfair dismissal the Employment Tribunal reached a majority decision that the dismissal was unfair. There was unanimity about the conclusion that the reason for dismissal was Some Other Substantial Reason and not because he had made alle-gations of racism or because he was black (see para-graph 104 of the judgment). The Employment Tribunal does not explicitly articulate, however, what was the reason for dismissal. At paragraph 105 of the judgment it is described as “such belief” and following that there is a discussion of the difference between this case and other cases where employees may have expressed “an absence of trust and confi dence in their employer”. The last six lines of paragraph 105 read as follows:

“ … here we have a case of a profoundly disaffect-ed employee who has a long-standing loss of trust and confi dence in his employer, expressed force-fully in a number of ways over several years, whose loss of trust and confi dence extends to almost all the Senior Managers who have come into contact with him and to other levels of employees within the organisation as well; in principle, such an em-ployee could be fairly dismissed.”

Nothing more is said of the reason for dismissal than that but it seems reasonable to infer that if an employee loses trust and confidence in all senior management and other employees over a long period of time that can amount to some other substantial reason for dismissal and that in this case it did.

56. It was in considering whether under section 98 (4) of the Employment Rights Act 1996 (“ERA”) the Respondent had acted reasonably in all the circumstanc-es of the case in treating that reason as a suffi cient rea-



son for dismissing the Appellant that the Employment Tribunal divided. The majority took the view that this was not a case where the employee’s view had been kept to himself (see paragraph 106 of the judgment). It was, on the contrary, a case where the Appellant’s views (see paragraph 107 of the judgment):

“… did manifest themselves in his behaviour, and his behaviour did have a severe impact on the em-ployer generally and on other employees in partic-ular. He submitted grievance after grievance with no objective basis, making personally damaging al-legations of racism against employees and, in prac-tice, all and sundry who crossed his path. More-over, he maintained those allegations despite repeated careful and thorough examination of the evidence and their rejection by Managers with no previous personal involvement with them, and by external investigators.”

This, concluded the minority, had been sufficient to justify dismissal as a reasonable reaction. The majority looked back to the origins of the problem saying this at paragraphs 108 and 109:

“... the behaviour in question in this particular case was a course of action which, at least in the initial stages had been encouraged by the employer. In 2005 and 2006, when Mr Woodhouse was encoun-tering diffi culties in pursuing his grievances, and indeed in earlier years when he had allowed his grievances against Mr Chapman and Mr Walker to be dealt with informally, he had been told that if he wanted them resolved, he should use the grievance procedure. He took that advice to heart and subse-quently, as we have found, submitted grievance af-ter grievance. The potential consequences for him of doing so were never spelt out to him in any shape or form. At its highest, Ms Wanless, for ex-ample, had suggested to him in a personal plea, that he should consider, at a personal level, the conse-quences for employees distressed by the allegation of racism. However, the implications for his job were never indicated at all, at any stage. Mr Wood-house’s sincere belief at the time was that he was simply and properly following the Respondent’s procedures; that he was entitled to use the proce-dures and he did so. His sincerity in doing so and bringing forward the grievances has never been challenged by the Respondents. It has never been suggested that he brought his grievances forward in bad faith, and therefore the range of authority, including Prison Service –v- Ibimudin EAT/0408/07 need not trouble us. …

109. We accept that there must come a time, and it had certainly come in this case, when an employer can properly and fairly say of the use of the griev-ance procedure; “Enough is enough. If this behav-iour does not stop, you will be dismissed”. That step was never taken. He was never told his behaviour was unacceptable, let alone putting his job at risk. It does not matter whether it was put formally at a full

hearing, following some sort of procedure, or whether it was put informally at a meeting, or whether it was put by letter. It is the substance that matters; the employee needs to be told one way or another before the meeting at which he was dis-missed; he needs to be given an opportunity of building bridges or, at the very least, stopping the behaviour that is causing the employer such diffi -culty. It seems to the majority that, in failing to take that step in any shape or form before dismissal, the employer was acting outside the range of responses open to a reasonable employer, even in this highly unusual situation. Fairness requires no less from the reasonable employer. The employer is not acting reasonably unless, in one form or another, it gives the employee that opportunity to mend his ways.”

57. Finally, the Employment Tribunal reached the unanimous conclusion the Appellant, even had he been given such a warning, would have had a very small chance of remaining in employment. The Employment Tribunal based this not only on the way in which the Appellant had behaved towards the Respondent over the previous years but also on the medical opinion from the Occupational Health Department that his “prob-lems with the employer were profound and long-stand-ing and unlikely to be resolved.” The chance was so small that the Employment Tribunal assessed it at 10%. This took account of the possibility of him being dis-missed in any event by reason of ill health (see para-graph 115 of the judgment). The Employment Tribunal appear not to have based any part of the reduction on the possibility of future redundancy, it being the case that the Appellant had “successfully passed the thresh-old for being offered a Project Offi cer’s job… [and] … there was a vacancy at the time suitable for him, which he could and would have been offered, had he not been dismissed” (see paragraph 116 of the judgment).

The submissions58. Mr Healy of counsel submitted on behalf of the Appellant that the judgment contained a fundamental error as to the difference between the statutory concept of victimisation under the provisions of the RRA and the provisions of the Equality Act 2010 (“the EA”). The matter was not complicated by any transitional provi-sions as had been suggested at paragraph 4 of the judg-ment; when a complaint is made of a discriminatory act arising after 1 October 2010 then the relevant statute is the EA. Where victimisation is under consideration then the matter is governed by the provisions of section 27 of the EA. Under the terms of section 2 (1) of the RRA any court or tribunal adjudicating upon whether or not there had been victimisation had to conduct a comparative exercise because that provision reads:

“A person (“the discriminator or”) discriminates against another person (“person victimised”) in any circumstances relevant to the purpose of any provi-sion of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons…”.



In any event, it was arguable that even under that provision since the judgment of the House of Lords in Khan v The Chief Constable of West Yorkshire [2001] UKHL 48 and later authorities the emphasis has not been on comparison but on causation. Be that as it may, section 27(1) of the EA no longer required the court or tribunal to conduct a comparative exercise because it reads:

“A person (A) victimises another person (B) if A subject B to a detriment because –(a) B does a protected act, or(b) A believes that B has done, or may do, a pro-tected act.”

59. In the instant appeal the Employment Tribunal had plainly conducted a comparative exercise. This was clear from the terms of the last two sentences of paragraph 94 of the judgment of the Employment Tribunal (quoted above at paragraph 50 of this judg-ment), and from the terms of paragraph 95 of the judg-ment (see above at paragraph 51 of this judgment) and it was the whole basis of the reasoning at paragraph 97 of the judgment (quoted above at paragraph 52 of this judgment). As a result the Employment Tribunal had not asked itself the right question, namely whether the dismissal had been because the Appellant done a pro-tected act. Instead it had sought to distinguish how the Respondent had reacted to the Appellant by compari-son with how it might have reacted to an hypothetical comparator. This had resulted in the comparative fi nd-ing of the Employment Tribunal at paragraph 94 of the judgment, which obscured any analysis of the relative weight to be given to the protected act as a cause of the detriment (see Owen and Briggs v James [1982] IRLR 502 at paragraph 21 and O’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615 at para-graph 26 and Khan at paragraphs 71 to 73).

60. Even if, under section 27 (1) of the EA, a com-parative exercise remained a valid or helpful approach, then the wrong comparator and been used by the Employment Tribunal. In Khan it had been accepted by both Lord Hoffmann (see paragraph 60) and by Lord Scott (see paragraph 72) that making a comparison with somebody who had made a different complaint, not involving allegations of discrimination, did not pro-vide helpful illumination of the problem. Rather the comparison should be the person who had made no complaint at all.

61. On its own fi ndings of fact, had the Employment Tribunal properly directed itself, it must have come to the opposite conclusion to the one it had arrived at. The conclusion reached as a result of the fi ndings at para-graphs 93, 94 and 97 of the judgment was clearly that the Appellant had been dismissed because he had con-tinually raise grievances complaining of race discrimi-nation and to fi nd to the contrary was to reach a conclu-sion that no reasonable tribunal properly directing itself on the evidence could have reached. In other words, it was perverse.

62. These were clearly “protected acts” within the defi nition provided by section 27(2)(c) and (d) of the EA and the Employment Tribunal had completely failed to appreciate the signifi cance of the fi nding that the Appellant was entirely sincere and not acting in bad faith (see paragraphs 98 and 108 of the judgment; the latter is in the context of unfair dismissal but the very clear fi nding must be carried back into the discussion of victimisation).

63. It was the frequency and extent of the complaints that had impressed the Employment Tribunal. The dis-tinction which the Employment Tribunal sought to make between complaints which were objectively jus-tifi able and those which were irrational and subjective is not supported by any analysis of the statutory con-cept involved. Even if, as the Employment Tribunal found to be the case, the Appellant was unjustifi ably complaining of race discrimination unless those com-plaints fell within the “bad faith” exception created by section 27(3) of the EA if, as was clearly the case, the Appellant had been dismissed for making complaints of race discrimination, then victimisation was clearly made out. In particular the reasoning at paragraph 97 of the Employment Tribunal’s judgment could not stand scrutiny. It was not apparent what distinction the Employment Tribunal was attempting to make by its reference there to “context”; no analysis of that para-graph of the judgment could establish any contextual difference between the Appellant’s case and any other case of victimisation.

64. Furthermore, the statement that the instant ap-peal was “on all fours” with the judgment of this Tribunal in Martin v Devonshire Solicitors [2011] ICR 352, an authority, which, apparently, the Employment Tribunal itself, rather than counsel, had introduced into the case, was simply erroneous. Not only was the tenta-tive nature of paragraph 97 of the judgment at odds with the guidance given by paragraph 22 of the EAT’s judgment but also distinctions between complaints and the manner of making complaints should only be drawn in clear cases that the instant appeal was factually well short of the kind of exceptional circumstances exem-plifi ed by the factual matrix of the Martin case itself. Nor was the case of Pasab Ltd t/a Jhoots Pharmacy v Mrs Niamh Woods UKEAT 0454/11/LA, relied on by the Respondent, any less eccentric.

65. There was a second error in the Employment Tribunal’s analysis of the law. At paragraph 96 of the judgment the Employment Tribunal had not applied the shifting of “the burden of proof” required by section 136 of the EA. Under the RRA, as a result of the judg-ment of the Court of Appeal in Oyarce v Cheshire County Council [2008] ICR 1179, the “reverse burden of proof” provisions introduced into that Act were held not to apply to race victimisation. What the Employment Tribunal had done in paragraph 96 of the judgment was to equate the need for “clear and com-pelling evidence”, which it took to be the existing posi-



tion under the RRA with “the reverse burden of proof”. These were not the same concepts and that approach resulted in the Respondent explaining paragraph 98 of the judgment why it thought its actions had been neces-sary rather than, as should have been the case, explain-ing why its actions were not discriminatory. This error, submitted Mr Healy, had simply compounded the other error of adopting a comparative approach made by the Employment Tribunal.

66. In any event, even if a one stage analysis might have been appropriate, there was still no sign of the Employment Tribunal having identifi ed the explana-tion required by paragraph 96 of the judgment:

“When considering victimisation, there is obvious-ly a strong case which cries out for an explanation from the Respondents to disprove the allegation.”

So a high hurdle had been set but nowhere in the previous or subsequent analysis is there any clear picture of the Respondent straddling it. On the contrary, the Employment Tribunal concentrates on the position of the Appellant and never identifies any convincing explanation from the Respondent as to why its reaction to that position was not discriminatory.

67. The third main error identifi ed by Mr Healy in his submissions was of a failure by the Employment Tribunal to identify the correct reason for dismissal. He accepted that although paragraphs 104 and 105 of the judgment were not as explicit as they ought to have been, nevertheless it was possible to infer that the Employment Tribunal had concluded the reason for dis-missal was that the Appellant had lost trust and confi -dence in the Respondent. This was not a helpful and might be a misleading formulation; see paragraph 19 of the Martin case and paragraph 39 of McFarlane v Relate Avon Ltd [2010] IRLR 196. What the Employment Tribunal had identifi ed was a caricature of the reality, which was that the Appellant had been dis-missed by reason of his conduct. Also the majority posi-tion, as expressed at paragraph 109 of the judgment, re-garded the dismissal as unfair because no opportunity been given to the Appellant to “mend his ways”. This reveals that the Employment Tribunal were really char-acterising the reason for dismissal as misconduct.

68. If, submitted Mr Healy, the Employment Tribunal should have found discrimination by victimi-sation, then the “Polkey” issue fell away. But even if, contrary to the above submissions, the Employment Tribunal had correctly dismissed the victimisation claim, it had still erred in the analysis of the “Polkey” issue, something which the Employment Tribunal had raised itself.

69. This was because the Employment Tribunal had failed to make any fi ndings of fact that supported or ad-equately supported the conclusion that compensation should be reduced by 90%. Not only is there no trace of any evidential investigation as to the Appellant’s posi-

tion (and Mr Healy told us that was because they had been none, although that proved controversial, as to which see below) but also the conclusion totally ig-nored the Employment Tribunal’s own finding that there was no risk of redundancy because the Appellant had been successful in relation to the Project Offi cer post and there was a vacancy. The Employment Tribunal discounted ill health and redundancy but still concluded that compensation should be reduced by 90%. This ignored the diffi culties of prediction identi-fied in the judgment of this tribunal in Andrews v Software 2000 Ltd [2007] ICR 825 at paragraph 54.

70. Mr Healy submitted that the case need not be re-mitted to the Employment Tribunal. There were suffi -cient fi ndings of fact to allow us to conclude that the reason for dismissal was conduct, namely the repeated lodging of grievances based on race discrimination, and that the dismissal was an act of victimisation. Moreover, he maintained that we could on the material before us reach our own determination about any “Polkey” reduction.

71. At the start of his submissions Mr Breen told us that his recollection was that the Employment Tribunal had asked the Appellant what he believed would have happened in the future. This seemed to us somewhat at odds with paragraphs 54 to 56 of the written submis-sions lodged by the Respondent at this Tribunal at the preliminary hearing stage. There (see page 83 of the appeal bundle) it seemed to be clearly stated that the matter had not been raised and that it had not been nec-essary to raise it because if the Appellant had attempted to suggest that he might have behaved differently, the Employment Tribunal would have rejected such evi-dence. It should be pointed out that Mr Breen appears not to have been the author of these submissions. Nevertheless there remained a degree of controversy and some lack of clarity on this point. In the end, for reasons explained below we have not found it neces-sary to resolve it.

72. Mr Breen submitted that when the case was looked at overall, it was clear that the Employment Tribunal had not made any errors of law. The complaint made by the Appellant about paragraphs 4 and 21 of the judgment ignored the context, which was that of a long series of grievances culminating in fi rst suspen-sion and then dismissal in October 2010.

73. The last sentence of paragraph 4:“As it turns out, in view of our findings of fact, nothing turns on the difference in wording between the two statutes.”

is simply an indication that the evidential material was so strong that irrespective of the analytical method employed, whether comparative or causative, there could be no different a result. This perspective is reinforced by the use of the expression in paragraph 21 of the judgment “there are no significant differences”.



Moreover, it is clear from paragraphs 95 and 96 of the judgment that the Employment Tribunal was asking why the Appellant had been suspended and dismissed.

74. The Employment Tribunal had been referred to a large number of authorities (see paragraphs 22 to 25 of the judgment) and the Appellant’s submissions ig-nored the last part of paragraph 26 of the judgment where the Employment Tribunal said this:

“We were not assisted by consideration of the com-parators in relation to delay, or generally. We prefer to follow the guidance of Lord Nicholls in Sham-oon v Chief Constable of Royal Ulster Constabu-lary [2003] IRLR 285; “Tribunal’s may sometimes be able to avoid arid and confusing disputes about the identifi cation of the appropriate comparator by concentrating primarily on why the Claimant was treated as [he] was. Was it on the prescribed2 ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it some other reason? If the latter, the application fails. If the former, there will usual-ly be no diffi culty in deciding whether the treat-ment, afforded to the Claimant on the prescribed3 ground, was less favourable than was or would have been afforded to others.”

75. The very long paragraph 20 of the judgment was a meticulous examination of the history of the matter and in respect of each allegation the Employment Tribunal had applied entirely the correct approach. It was not surprising that in relation to the suspension and dismissal the Employment Tribunal had relied on the analysis of the grievances, which it had undertaken in the earlier part of the judgment. This entitled the Employment Tribunal to conclude that the main reason for dismissal had been the Appellant’s own view of events and that dismissal had been within the band of reasonable reactions to the situation in which the Respondent found itself. Essentially, this was a factual conclusion which should not be interfered with.

76. In respect of victimisation the Employment Tribunal had asked itself the correct question, namely what was the causative link between the protected act and dismissal and had reached the conclusion that the dismissal had not been caused by the grievance but by the state of mind revealed by the refl ex action of the Appellant in repeatedly submitting grievances. It was not what he had done but what he believed that mat-tered and the Employment Tribunal had properly con-cluded that it was his belief that caused his dismissal. This is what is being discussed by paragraphs 95 to 98 of the judgment. Moreover, once the correct question, namely why did the Respondent suspend and dismiss, is addressed then issues about the burden of proof sim-ply evaporate.

77. Whilst accepting that the expression “on all fours” might not be entirely accurate in terms of a com-parison between the instant appeal and the Martin case,

Mr Breen submitted that it was too crude a distinction to point to the mental illness of the employee in the latter. Where grievances are concerned the question is the ex-tent to which there are special circumstances; here there were special circumstances, albeit different to those that applied in Martin. That case had been applied in another judgment of this Tribunal in the Pasab case. There a di-vision of this Tribunal presided over by His Honour Judge Peter Clark said this at paragraph 19:

“ … if the remark was viewed not as a protected act but an offensive racist comment by Mrs Jhooty, then the reason for dismissal was not that the Claimant had done a protected act, but some other feature genuinely separable from the implicit com-plaint of discrimination. That was the correct anal-ysis in Khan, so the House of Lords held, and ac-cords in our judgment with the approach of Underhill P (as he then was) in Martin (paragraph 25).”

So, there the separable circumstances were somewhat different to those in Martin but, submitted Mr Breen, the case illustrates the diversity of the concept and supports its use by the Employment Tribunal in the instant appeal.

78. As to “Polkey” the Employment Tribunal were entitled to consider it and their analysis was rooted in their careful examination of the relationship between the Appellant and the Claimant over a period of fi ve years. It was entirely realistic for them to conclude that a warning or ultimatum would have made no difference and it was a matter of fact for them to decide the appro-priate discount. This Tribunal should not interfere with that exercise; we had no jurisdiction to and, if that was wrong and we had, we did not have the material to do so and the case would have to be remitted on that point.

Discussion and conclusion79. The fundamental issue here is whether the Em-ployment Tribunal erred in law in concluding that the Respondent did not dismiss the Appellant because he had complained of race discrimination by the Respond-ent’s employees.

80. At paragraph 94 the Employment Tribunal had said:

“We are persuaded by the witness’ explanations to fi nd that their decision to suspend and subsequently dismissed Mr Woodhouse was not taken on racial grounds to any extent. We fi nd that a comparable employee, who had evinced similar profound and long-standing lack of faith by submitting similarly ill-founded grievances, but without any racial con-notation, would have been similarly treated. We fi nd these were not acts of direct discrimination, nor were they acts of harassment on racial grounds.”

81. This, of course, relates to matters with which we are not concerned on this appeal but it so obviously leads into the Employment Tribunal’s consideration of



victimisation that it is worthwhile repeating it here. At paragraph 95 the Employment Tribunal addressed the question with which we are concerned in these terms:

“Were they4 victimisation? Was Mr Woodhouse victimised, treated less favourably than others would have been treated when he was suspended and then dismissed by reason that he had made re-peated complaints of race discrimination to the Second Respondent?”

82. There is an obvious error at this point in the judgment of the Employment Tribunal, namely the adoption of a comparative approach. But has this error resulted in the Employment Tribunal reaching an un-sustainable conclusion? Mr Breen submitted that es-sentially the conclusion reached by the Employment Tribunal was a fi nding of fact and, as such, not capable of challenge on appeal, that the error was more appar-ent than real and had not resulted in the Employment Tribunal taking a signifi cantly wrong course because it had reached the correct conclusion in any event.

83. We cannot accept those submissions. Firstly, whilst we agree that at paragraph 26 of its judgment the Employment Tribunal did give itself a perfectly correct direction by its reference to the well known passage from paragraph 11 of the speech of Lord Nicholls in Shamoon and that would have been an appropriate ap-proach to section 27(1) of the EA (set out above at par-agraph 58 of this judgment), it seems to us beyond ar-gument from the terms of paragraphs 94, 95, 97 and 98 of the judgment that the actual analysis adopted by the Employment Tribunal was a comparative one. Secondly, the terms of paragraphs 4 and 21 of the judg-ment consistently state the proposition that the change in wording as between section 2 of the RRA and sec-tion 27 of the EA makes no signifi cant difference, at least on the facts found, and we cannot accept that as a correct statement of the position. “Less favourable” treatment is no longer a component of “victimisation”.

84. We wonder to what extent a comparison might ever illuminate the question posed by section 27 of the EA as to whether an employee has been subjected to a detriment by the Respondent because s/he has done a protected act? But we need not consider that further in this case because we accept Mr Healy’s submission that it cannot illuminate anything if the comparison falls into the trap identifi ed by Lord Scott at paragraph 72 of his speech in Khan. The comparison here be-tween somebody who has made groundless complaints of race discrimination and somebody else who has made groundless complaints of a different variety is exactly of that character. Therefore, the analytical tool used here by the Employment Tribunal was that of an unhelpful comparison to answer a question that re-quired no comparative analysis in any event.

85. Even so the Employment Tribunal had empha-sised its fi ndings of fact at paragraph 21 of the judg-ment as transcending any difference in concept as be-

tween the two statutory provisions and Mr Breen insisted that the Employment Tribunal had reached the correct destination, even if the route might have wan-dered slightly off course. It seems to us that at the heart of this is the proposition that the fi nding was clearly inevitable and solidly built on the fi ndings of fact made in relation to the grievances.

86. There is no appeal against the rejection of the claims of race discrimination in the context of the nine grievances and as a result we must accept the Employment Tribunal’s conclusion that, apart from the fi rst two they were all “ill-founded grievances … sub-stantially without any evidential basis” (paragraph 94 of the judgment), “unfounded grievances” (paragraph 97 of the judgment) and “objectively demonstrated to be false” (paragraph 98 of the judgment). It is not part of our function as an appellate tribunal to quarrel with that conclusion. On the other hand we are entitled to ask – what does that mean?

87. Clearly some of the grievances, at least, rested on real issues and real adverse outcomes for the Appellant, so they were not false in the sense that they were a complete fi ction. It was the characterisation by the Appellant of the motivation of the Respondent’s employees as racial discrimination that the Employment Tribunal concluded was objectively incorrect.

88. Section 27(2)(d) (the most apposite part of the defi nition for present purposes) does not stipulate that the “protected act” must be objectively justifi able; it simply refers to:

“making an allegation (whether or not express) that A or another person has contravened this Act.”

and the EA provides only limited protection by section 27(3) to an employer from the consequences of taking action where the allegation is false:

“Giving false evidence or information, or making a false allegation, is not a protected act if the evi-dence or information is given, or the allegation is made, in bad faith.”

It seems to us that “false” must mean wrong or incorrect or, in the terms used by the Employment Tribunal “ill-founded”, “substantially without any evidential basis”, “unfounded” and “objectively demonstrated to be false”. But that does not matter unless bad faith was made out and bad faith was simply not in issue in this case. Although apparently Councillor Lowe had thought there was bad faith (see paragraph 20.32), that was not advanced as an argument at the hearing (see paragraphs 98 and 108 of the judgment). Indeed, the Employment Tribunal accepted the Appellant’s sincerity (see also paragraph 108 of the judgment).

89. But, as the then president of this tribunal, Underhill J, explained at paragraph 24 of the judgment in Martin in answer to the argument that the “bad faith” exclusion provided the only defence:



“We do not accept that. No doubt sections 4 (2) (of the 1975 Act) and 55 (4) (of the 1995 Act) are to some degree exclusive: that is to say, in defend-ing himself against the victimisation claim an em-ployer cannot advance the distinction simply that the real reason for the act complained of was not the making of the complaint but the fact that it was false, since the intention of the legislation is indeed plainly that false complaints will be pro-tected unless made in bad faith. But we do not be-lieve that that “fi eld of exclusion” covers a case like the present, where the falseness of the com-plaint is the result of mental illness and the reason for the treatment complained of is the perceived risk of future disruptive behaviour on account of that illness. The control mechanism of imposing a bad faith requirement has no application to such a situation.”

90. Therefore, the position here is that the Appellant had done a series of protected acts, not excluded from that concept by being done in bad faith. But the Employment Tribunal found that he had not been dis-missed because of those acts. He had not been dismissed on account of his conduct in bringing the grievances. He had been dismissed because of his loss of trust and confi -dence in the Respondent (see paragraph 94 of the judg-ment). Although Mr Healy had drawn to the attention of the Employment Tribunal paragraph 39 of the judgment of Underhill J in McFarlane v Relate Avon Ltd:

“First, we are bound to say that the tribunal unnec-essarily complicated the analysis by referring to “loss of trust and confi dence”. Its doing so is un-derstandable, since that is the way the case was put in the respondent’s pleading and apparently Mr Knight’s oral submissions. Nevertheless, we think it unhelpful. Although in almost any case where an employee has acted in such a way that the employ-er is entitled to dismiss him the employer will have lost confi dence in the employee (either generally or in some specifi c respect), it is more helpful to focus on the specifi c conduct rather than to resort to gen-eral language of this kind. We have noticed a ten-dency for the terminology of “trust and confi dence” to be used more and more often outside the context of constructive dismissal in which it was fi rst de-veloped (see, classically, Malik v Bank of Credit and Commerce International SA [1997] IRLR 462); this is a form of mission creep which should be resisted. But, in this case at least, the reference to trust and confi dence does not obscure the tribu-nal’s substantive reasoning.”

it had not been deterred from adopting the “loss of trust and confi dence” terminology. As in McFarlane this was reiterating the formula used by the Respon-dent. Moreover, Mr Breen submitted that this is fi nd-ing of fact with which we must not interfere. The Ap-pellant had suffered detriment not because of his conduct but because of his incurable disaffection. Mr Healy submitted that we should look more deeply into

what was actually being decided and we agree that we should do so.

91. On closer consideration several points emerge. Firstly, it is worth noting that the Employment Tribunal itself recognised there was evidential material that tended to suggest some part of the evidence heard at the dismissal hearing related to the impact made on fellow employees by the repeated allegations of race discrimination and also related to the Respondent’s need to avoid future repetition. The Employment Tribunal refer to this at paragraph 93 of the judgment and, in effect, reject it as causally connected to the dis-missal decision at paragraph 94 of the judgment (see above at paragraph 50 of this judgment).

92. Having relegated the evidence about the impact of the grievances on the Respondent and the need to avoid future disruptive complaints to being of second-ary or no importance in relation to direct race discrimi-nation and harassment, nevertheless the Employment Tribunal do refer to it again in the last sentences of par-agraph 98 of the judgment (see above at paragraph 53 of this judgment) as an integral part of the reasoning that there had been no victimisation of the Appellant. Furthermore the Employment Tribunal relies again in the last part of the last sentence of paragraph 98 on the same comparative approach that resolved the issues of direct race discrimination and harassment against the Appellant at paragraph 94 of the judgment.

93. Our view of the comparison expressed above at paragraph 84 of this judgment is irrelevant in the context of the allegations of direct race discrimination and harass-ment; they are not the subject of appeal. But so far as vic-timisation is concerned, we do not think the use of an an-alytical tool condemned by Lord Scott (and others) in Khan as having no utility can have added any clarity to the reasoning process. In any event less favourable treat-ment has been an irrelevant consideration since 1 October 2010 and we agree with Mr Healy that the relevant ques-tion was whether the Appellant’s conduct had played any signifi cant part in the Respondent deciding to dismiss?

94. Thirdly, in the part of the judgment that relates to unfair dismissal (paragraphs 104 to 112 of the judg-ment) whereas the Employment Tribunal synthesises (at least by implication) a reason for dismissal confi ned to the Appellant’s belief or state of mind, the whole of the discussion in the context of section 98(4) of the ERA is in terms of the Appellant’s future conduct. The defect identifi ed by the majority is the failure to warn. But this warning would clearly not be about the Appellant’s state of mind alone (something the Employment Tribunal itself regarded as irrelevant – see paragraphs 105 and 106 of the judgment) but about how it was likely to manifest itself in terms of his fu-ture conduct. That kind of thinking must incorporate the example of past conduct as a guide to future behav-iour and as shaping the nature of the warning; most commonly a warning is – “do not do it again”.



95. Fourthly, the Employment Tribunal itself recog-nised the need to exclude the raising of grievances as a cause of the decision to dismiss. It regarded Martin as an analogue of the instant case, although saying it was “a stronger case”. In Martin the incidents alleged by the Appellant had never occurred and were very likely paranoid delusions caused by her mental illness. The Employment Tribunal recognised that the Appellant here was not mentally ill, although they characterised him as obsessive and fi xated, but nevertheless felt able to describe Martin “as on all fours” with this case.

96. As the Employment Tribunal also recognised before the case could be regarded as analogous it had to identify “some feature of it which can properly be re-garded as separable” (see paragraph 22 of Martin). It is not apparent to us what that “separable feature” was found to have been. In giving the judgment of this Tribunal, the then President, Underhill J, had sounded this note of caution:

“Of cause such a line of argument is capable of abuse. Employees to bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti- victimi-sation provisions if employers were able to take steps against employees simply because in making a com-plaint they had say, used intemperate language or made inaccurate statements. An employer who pur-ports to object to “ordinary” unreasonable behaviour of that kind should be treated as objecting to the com-plaint itself, and we would expect tribunals to be slow to recognise the distinction between the complaint and the way it is made save in clear cases.”

97. This note of caution was sounded in relation to the manner of a complaint and behaviour relating to the way in which the complaint is made. Martin itself did not fall into that category, as Underhill J recognised at paragraph 23 in the following terms:

“We accept that the present case is not quite like that. What the Tribunal found to be the reason for the Ap-pellant’s dismissal was not the unreasonable manner in which her complaints were presented (except per-haps to the extent that Mr Hudson referred to the fact that some of the grievances were repeated). Rather, it identifi ed as the reason a combination of inter-re-lated features – the falseness of the allegations, the fact that the Appellant was unable to accept that they were false, the fact that both of those features were the result of mental illness and the risk of further dis-ruptive and unmanageable conduct as a result of that illness. But it seems to us that the underlying princi-ple is the same: the reason asserted and found con-stitutes a series of features and/or consequences of the complaint which were properly and genuinely separable from the making of the complaint itself. Again, no doubt in some circumstances such a line of argument may be abused; but employment tribu-nals can be trusted to distinguish between features which should and should not be treated as properly separable from the making of the complaint.”

98. So conduct/behaviour might be one type of sepa-rable feature (and Underhill J had given examples at par-agraph 22 of the judgment). Other cases, like Martin might involve a collection of separable features, some of which related to behaviour (past and future) and some of which related to the employee’s state of mind, viewed both subjectively (i.e. what the employee thought) and objectively (i.e. what medical experts thought was the reality, and the cause, of the employee’s perception).

99. The search in this case for what HHJ Clark re-ferred to in Pasab case as “genuinely separable fea-tures” must cover the territory of paragraphs 97 and 98 of the judgment of the Employment Tribunal, which we set out above, together with a brief analysis of para-graph 98, at paragraphs 52 to 54 of this judgment. According to the Employment Tribunal it “is possible in this case to draw a distinction between the context in which various comments were made and Mr Woodhouse’s various grievances themselves” (see par-agraph 97). What does this reference to context mean?

100. If we look further in paragraph 97 for elucidation, the next thing discussed after this reference to context is the by now familiar comparison between the Appellant and a hypothetical employee raising similar grievances but not alleging race discrimination. In our view that tells us nothing about context. The “factors which stand out for us” are then listed. The fi rst is the repetition of un-founded and unjustifi ed grievances; this must be within the conduct/behaviour category. It is said at paragraph 98 to be “the distinctive pattern in this case which ena-bles us to say this is not a case of victimisation because he had complained of race discrimination.” The second, which straddles paragraphs 97 and 98, is the Appellant’s reaction to the dismissal of grievances; this must be within the category of subjective state of mind and is de-scribed as “an obsession, a fi xation”, which “fuelled his belief that managers and the organisation itself were rac-ist in treating him in that way”. The Employment Tribunal concludes that this (described as a “convic-tion”) is what “led the Respondent to decide that his loss of trust and confi dence in them meant that his employ-ment could no longer be continued.” This is not free-standing, however, because the next two sentences refer to the inevitably of further allegations in the future which would be “damaging”, presumably in terms of the im-pact on employees and the organisation, and explicitly in terms of the time taken up. This must be future conduct/behaviour. This was a risk that the Respondent was not prepared to run. Paragraph 98 ends with this sentence, which, as a summation of the conclusion subject to ap-peal, justifi es repetition:

“Having reached those conclusions, we therefore reject the claim of victimisation; Mr Woodhouse was not treated less favourably in his dismissal by reason that he had made earlier complaints of race discrimination.”

101. This still does not explain “context” and it is not, of course, the analysis, which the statute now requires.



But the real question is can the judgment be supported on the basis of “genuinely separable features”? Obviously the Employment Tribunal felt that, as in Martin, there was a mixture here of the subjective state of mind of the Appellant and the future impact of his behaviour. But we think that a further note of caution ought to be added to the one embedded in the judgment by Underhill J.

102. In our judgment, Martin cannot be regarded as some sort of template into which the facts of cases of alleged victimisation can be fi tted. There are no doubt exceptional cases where protected acts have not caused the dismissal or whatever other detriment is at issue. Martin is an example of such an exceptional case. But we emphasise the word exceptional; very few cases will have grievances based on paranoid de-lusions about events that never happened. It seems to us the process of measuring cases against such a yard-stick is a dangerous one. One person’s conviction that they have been discriminated against is very likely to generate the polar opposite, i.e. that the complainant is irrational, in the person or organisation complained about. Experience of this type of litigation teaches that grievances multiply and so the fact that here are a series of them is not unusual. It is a slippery slope to-wards neutering the concept of victimisation if the ir-rationality and multiplicity of grievances can lead, as a matter of routine, to the case being placed outside the scope of section 27 of the EA. All the more so when the origin of the problem is established, as here, to have been a real, as opposed to imaginary, race dis-crimination.

103. In our judgment, on any objective basis, this case is not “on all fours” with Martin. This is not only illus-trated by the clear factual differences between this case and Martin but also by the diffi culty, as we perceive it to be, of the Employment Tribunal being able to articu-late what the “genuinely separable features” are; the reference to “context” does not do that. What can be gleaned from paragraphs 97 and 98 of the judgment is but a pale pastiche of the situation in Martin itself. Indeed we think that Employment Tribunals would do well to start from the proposition that very few cases will be like Martin. Moreover, although it is a factor in Martin that there was a risk of future repetition (see paragraph 23 of that judgment quoted above at para-graph 97 of this judgment) it must not be forgotten that the terms of section 27(1) of the EA (see above at para-graph 58 of this judgment) cover future, as well as past, protected acts; in our view the importance of the words “as a result of that illness” in paragraph 23 of Martin should not be underestimated.

104. Therefore, we conclude that this case is not an analogue of Martin and the Employment Tribunal fell into error when they regarded it as such. But more than that we conclude that the Employment Tribunal never identifi ed any “genuinely separable features”. In the end the Martin concept is an unchallengeable factual

fi nding of a reason for detrimental action other than the doing of protected act in the past or the potential for such an act in the future. It seems to us all paragraphs 97 and 98 of the judgement of the Employment Tribunal amount to is that the Appellant had raised a number of grievances in the past, which had proved to be unjustifi ed, and his state of mind was such that he was likely to do so in the future. The Respondent’s po-sition that the Appellant was dismissed because he had lost trust and confi dence in the organisation when cou-pled, as the Employment Tribunal found it to be, with the avoidance of further repetition of grievances by ending the employment relationship, is no more than the Appellant being dismissed, if not because of past protected acts, then because of the belief of the likeli-hood of future protected acts. In our view on the Employment Tribunal’s own factual findings that amounted to victimisation within the scope of section 27(1) and the Employment Tribunal erred by reaching any other conclusion.

105. As to Mr Healy’s other main submission that the Employment Tribunal made an error as to the burden of proof we accept his criticism that paragraph 96 of the judgment equates the need for “clear and compel-ling evidence”, which it took to be the existing position under the RRA, with “the reverse burden of proof” under section 136 of the EA. But this is not conclusive because a one stage approach is sometimes justifi able. In any event, as we have found above, the real failure in the Employment Tribunal’s reasoning results from the failure to recognise that their own fi ndings amount-ed to victimisation. That did not turn on the burden of proof and we would not have regarded the undoubted error as to the burden of proof as fatal if the evidence that the dismissal had not been because of the doing, or belief in the future doing, of a protected act had actual-ly been “clear and compelling”.

106. As to the third main error, namely the failure to identify the correct reason for dismissal, in our view the appeal cannot succeed on this basis. Whilst the analysis of unfair dismissal at paragraphs 104 to 108 does not identify the reason for dismissal clearly it seem to us obvious that it was some other substantial reason in the nature of a loss of trust and confi dence by the employee. We think that if the Employment Tribunal had embraced the warning given about the imprecision of such concepts by Underhill J in McFarlane, there would not have been such an uncriti-cal acceptance of the Respondent’s rubric but we do not think it amounted to an error of law.

107. As it is we will allow the appeal on the basis that the Employment Tribunal wrongly concluded that the evidence amounted to “genuinely separable features” justifying the conclusion that the dismissal was not be-cause of past or future protected acts. On the contrary on the evidence the only proper conclusion was that the Appellant had been victimised by his suspension and dismissal and we will substitute that fi nding.



108. Therefore the “Polkey” reduction becomes un-sustainable and there is no need to consider the lack of clarity as to the procedure by which the determination was arrived at. Accordingly, we will also allow the ap-peal against it and quash the finding. But if we are wrong on the victimisation issue, then we must consid-er whether there was any error in the making of that reduction.

109. The lack of agreement as to the procedure actu-ally adopted by the Employment Tribunal is a compli-cating feature. It seems likely that this was not dealt with separately in terms of evidence but paragraph 54 of the judgment of this tribunal in Andrews v Software 2000 Ltd does not suggest that it must be. We have been told that the point was taken by the Employment Tribunal but its origins do not matter as long as every-body has adequate notice that it is in play and an oppor-tunity to deal with it. What causes us considerable con-cern is that it appears to be common ground that the Employment Tribunal called for no submissions on the issue. This strikes us as erroneous. The parties should have an opportunity to deal with issues and for that rea-son we would have allowed the appeal in relation to the “Polkey” deduction. But it was never a matter that we could have dealt with and had it been necessary to do so we would have remitted the “Polkey” issue for re-hearing by the same Employment Tribunal with a di-rection that either party was to be permitted to call evi-dence relating to the issue, if so advised.

Footnotes1 Her name is variously recorded in the judgment as Brook or Brooks; it fi rst appears as Brook and we will adopt that.2 Typographical error for “proscribed”.3 Ditto.4 i.e. the acts of suspension and dismissal referred to in the previous paragraph.


North v Dumfries and Galloway Council: UKSC [2013] EqLR 817

North v Dumfries and Galloway Council

[2013] UKSC 45

Supreme Court (Lord Hope, Lady Hale, Lord Wilson, Lord Reed, Lord Hughes)

26 June 2013

Equal pay: Exclusions & qualifi cations

The Supreme Court ruled that in determining whether comparators employed in different establishments were in “the same employment” as the claimants for the purposes of s.1(6) of the Equal Pay Act, in order to show that there are common terms and conditions, women can compare themselves with men employed by the same employer in other places of work even though in practice those men would never be employed to do their current jobs in the same place as the women. The correct question to ask is whether the Claimants had established that if their comparators were employed at the same establishment as them (however unlikely that might be) they would be employed under broadly similar terms to those under which they were then currently employed. The Supreme Court rejected the argument that the Claimant must establish that there was a “real possibility” that her chosen comparator might be employed at the same establishment as her, or indeed that it was feasible that he would be.

The facts The 251 Claimants in this case were classroom assistants, support for learning assistants and nursery nurses employed in local authority schools. They were employed under terms contained in a national collective agreement, known as the “Blue Book”. They worked and were based at a variety of schools in the local authority’s area. They sought to compare themselves with a variety of manual workers, employed by the same local authority, but as groundsmen, refuse collectors, refuse drivers and a leisure attendant, and who were employed under terms and conditions set out in the “Green Book”. The comparators were based at various depots and

worked at a variety of locations. They were entitled to substantial bonus payments or supplements on top of their basic pay, whereas the Claimants are not.

As none of the Claimants was employed at the same establishment as their chosen comparators, the local authority applied for a pre-hearing review to determine whether or not the Claimants and their comparators were “in the same employment” as defi ned in s.1(6) of the Equal Pay Act 1970. So far as relevant, s.1(6) provided that “men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes.”

The Employment Judge held that it was necessary “for the Claimants to satisfy the Tribunal that if their comparators were employed at their establishment, they would be employed under broadly similar terms to those that they are employed under at present.” At the pre-hearing review, the Employment Tribunal determined that issue in the Claimants’ favour and held that the Claimants and their comparators were employed “in the same employment” for the purposes of s.1(6).

The Respondent appealed to the EAT, which allowed the appeal and held that the Claimants had to establish, for the purpose of s.1(6), that there was a “real possibility” that their comparator could be employed at the same establishment as them to do the same or a broadly similar job to the one which he did at the other establishment. Lady Smith held that in the present case such a fi nding was not open to the Tribunal on the evidence.

On further appeal to the Inner House of the Court of Session ([2011] EqLR 187), the “real possibility” test was rejected, but the Inner House refused the appeal on the basis that the Claimants had failed to establish that if the comparators were based at the same establishment as the Claimants, the comparators would still have been employed on Green Book terms and conditions. The Claimants appealed to the Supreme Court.

DecisionThe Supreme Court allowed the appeal and restored the decision of the Employment Tribunal.

The Supreme Court HELD:(1) The Employment Judge did not err in concluding that the Claimants, who worked in schools, and their male comparators, who were manual workers

August_6_North_UKSC.indd 817August_6_North_UKSC.indd 817 2/8/13 13:06:142/8/13 13:06:14

[2013] EqLR 818 North v Dumfries and Galloway Council: UKSC

based and working in a variety of locations, were in “the same employment” for the purpose of making an equal pay comparison, notwithstanding that there was in practice no possibility that they would work at the same place. The Employment Tribunal was entitled to conclude that there was no compelling evidence that the Claimants’ comparators would not be employed on the same or broadly similar terms and conditions in the unlikely event that they became based in schools.

A female claimant and her male comparator are to be treated as being in the same employment for the purposes of s.1(6) of the Equal Pay Act 1970 even if, in practice, she and her male comparator would never be employed to do their current jobs in the same place. The hypothesis inherent within s.1(6) is that the comparators are transferred to do their present jobs in a different location: the question then is whether, in that event, however unlikely it might be, they would remain employed on the same or broadly similar terms and conditions to those applicable in their current place of work. By the phrase “common terms and conditions”, the subsection is not looking for complete correspondence between what those terms are, or would be, in the woman’s place of work. It is enough that they are, or would be, broadly similar.

An Employment Tribunal should not consider whether there was a “real possibility” or “feasibility” that a claimant or her comparator would do their current jobs in the same place. That would add an unwarranted gloss to the wording of the subsection. The adoption of such a test would defeat the object of the legislation, which is to secure equality of treatment, not only for the same work, but also for work rated as equivalent or assessed by the experts to be of equal value. It stands to reason, therefore, that some very different jobs which are not or cannot be carried out in the same workplaces may nevertheless be rated as equivalent or assessed as having equal value.

Nor is it the function of the “same employment” test to establish comparability between the jobs done (which is established by the “like work”, “work rated as equivalent” and “work of equal value” tests) or to address whether the reason for the difference is something other than gender (which is addressed by the material factor defence). The “same employment” test should not be used as a proxy for those tests or as a way of avoiding the often diffi cult and complex issues which they raise.

The function of the “same employment” test is to establish the terms and conditions with which the comparison is to be made. The object is simply to weed out those cases in which geography plays a signifi cant part in determining what those terms and

conditions are. It sets a low threshold which did not operate as a barrier to the comparison proposed in the present case.

Cases referred to British Coal Corporation v Smith [1996] ICR 515 HLCity of Edinburgh Council v Wilkinson [2010] IRLR 756 EAT; [2012] EqLR 54 CSDefrenne v Sabena, Case 43/75 [1976] ICR 547 ECJLawrence v Regent Offi ce Care Ltd, C-320/00 [2003] ICR 1092 ECJLawson v Britfi sh Ltd [1987] ICR 726 EATLeverton v Clwyd County Council [1989] AC 709 HLNorth Cumbria Acute Hospitals NHS Trust v Potter [2009] IRLR 176 EATRobertson v Department for Environment, Food and Rural Affairs [2005] ICR 750 CA

AppearancesFor the Appellant: Dinah Rose QC and Iain Steele, instructed by Unison Legal ServicesFor the Respondent: Ian Truscott QC and Linda Marsh, instructed by Glasgow City Council Corporate ServicesFor the Equality and Human Rights Commission, intervening: Robin Allen QC, instructed by the EHRC



LADY HALE (with whom Lord Hope, Lord Wilson, Lord Reed and Lord Hughes agree):

1. Under the Equal Pay Act 1970, women (or men) whose work is of equal value to that of men (or women) in the same employment are entitled to the benefi t of a deemed equality clause in their contracts of employment. This means that if any of their terms and conditions is less favourable than the equivalent term or condition of the men with whom they are compared, they are entitled to have the benefi t of that more favourable term, as if it had been included in their original contract of employ-ment. It is therefore necessary to identify the precise terms and conditions with which comparison is to be made. This entails fi nding an individual or group of the opposite sex who constitute a valid comparator. There are several elements in that task. One involves looking at the kind of work the men and the women do: is it “like”, or has it been “rated as equivalent”, or is it “of equal value”? Another involves looking to see whether there are mate-rial factors other than the difference in sex which explain the difference in treatment. But a threshold question is whether the men and women are “in the same employ-ment”. The issue in this case is what that means.

2. The answer would be easy if all it meant was that they were employed by the same employer, the person with whom they all have contracts of employ-ment and who therefore has it within his power to cor-rect the inequality. Unfortunately, it is not that simple. There are occasions when women may be able to com-pare themselves with men who are not employed by the same employer. However, in United Kingdom law, there are also occasions when women may not be able to compare themselves with men, even though they are employed by the same employer, because they are not employed at the “same establishment”. But if that pro-vision erects a barrier to a claim which would other-wise be available under European Union law, it would be our duty to disapply it.

3. Section 1(6) of the Equal Pay Act 1970 provides: “. . . men shall be treated as in the same employ-ment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which com-mon terms and conditions of employment are ob-served either generally or for employees of the rel-evant classes. ” (emphasis supplied)

The Equal Pay Act 1970 has now been repealed and replaced by provisions in the Equality Act 2010 which are intended to be of equivalent effect, but the 1970 Act continues to govern claims, such as those in the present case, which were brought before the 2010 Act came into force.

The case law so far 4. Section 1(6) falls into two separate propositions, one contained in the words before and the other con-

tained in the words after “or” where it appears for the second time in the subsection. The fi rst proposition is straightforward: if the woman and her comparator are employed by the same or an associated employer in the same establishment, then they are in the same employ-ment and there is no need to consider the question of common terms of employment: see Lawson v Britfi sh Ltd [1987] ICR 726; North Cumbria Acute Hospitals NHS Trust v Potter [2009] IRLR 176.

5. The diffi culty comes with the second proposi-tion, where they are employed “at establishments in Great Britain which include that one and at which com-mon terms and conditions of employment are observed either generally or for employees of the relevant class-es.” The interpretation of this proposition has come be-fore the House of Lords on two previous occasions and we have not been invited to depart from the conclu-sions they reached.

6. In Leverton v Clwyd County Council [1989] AC 709, the applicant was a nursery nurse who wished to compare herself with male clerical workers employed by the same local authority under terms and conditions derived from the same collective agreement, known as the “Purple Book”. None of the male workers worked at the same establishment as she did and their hours of work were longer and their holidays shorter than those of the applicant. The employment tribunal, the Employment Appeal Tribunal, and the Court of Appeal (by a majority) held that they were not “in the same employment” for the purpose of section 1(6). They took the view that the subsection called for a compari-son between the terms and conditions of the applicant and of her comparators and that only if those were “broadly similar” to one another was the test satisfi ed.

7. The House of Lords disagreed. Lord Bridge of Harwich gave the leading opinion, with which the other members of the appellate committee agreed. He thought that the language of the subsection was clear and unambiguous:

“The concept of common terms and conditions of employment observed generally at different estab-lishments necessarily contemplates terms and condi-tions applicable to a wide range of employees whose individual terms will vary greatly inter se” (p 745F).

Terms and conditions governed by the same collective agreement seemed to him the paradigm, though not necessarily the only example, of common terms and conditions contemplated by the subsection.

8. But if there was any ambiguity, he would reject a construction which required a “broad similarity” be-tween the terms and conditions of the woman and of her claimed comparators. Such a construction:

“frustrates rather than serves the manifest purpose of the legislation. That purpose is to enable a wom-an to eliminate discriminatory differences between the terms of her contract and those of any male fel-



low employee doing like work, work rated as equivalent or work of equal value, whether he works in the same establishment as her or in an-other establishment where terms and conditions of employment common to both establishments are observed” (pp 745H – 746A).

It could not have been the intention of Parliament to require a woman to prove “an undefined substratum of similarity” between her terms of employment and his as the basis of a claim to eliminate any discriminatory difference between them.

9. In his view, the reason why Parliament had not simply required that the woman and her comparators be employed by the same employer but had also re-quired that common terms and conditions of employ-ment be observed between two different establishments was that a single employer might operate “essentially different employment regimes at different establish-ments” (p 746C). He gave the examples of one em-ployer having establishments in London and in Newcastle, where the regimes were quite different, or of a company operating one factory taking over a com-pany operating another factory, where there were quite different collective agreements resulting in quite differ-ent structures.

10. Leverton was an easy case, because everyone was employed under the same “Purple Book” agree-ment. But once it is clear that Parliament cannot have been referring to common, or even broadly similar, terms and conditions between the woman and her com-parators, it is equally clear that it cannot be a require-ment that they are covered by the same collective agreement. In British Coal Corporation v Smith [1996] ICR 515, the applicants were canteen workers, canteen manageresses and cleaners, employed at 47 different British Coal Corporation establishments.

Their named comparators were mainly surface mineworkers working at 14 different establishments, some of them the same as the places where the women worked and some of them not. Their terms and condi-tions were governed by a variety of agreements. It was not disputed that the women could take a comparator from their own colliery or other workplace. The ques-tion was whether they could take comparators from other collieries or workplaces.

11. Lord Slynn of Hadley, with whose opinion all the other members of the appellate committee agreed, point-ed out that it was obvious why a woman was not limited to comparing herself with men employed in the same workplace as she was: “. . . otherwise an employer could so arrange things as to ensure that only women worked at a particular establishment or that no man who could reasonably be considered as a possible comparator should work there” (p 525H). The inclusion in section 1(6) of the words “which include that one” (that is, the establishment at which the woman works) was at fi rst sight puzzling, but read with the words “and at which

common terms . . . are observed” which follow it simply meant that common terms must be observed, not only at the other place but also at the woman’s place of work if employees of the relevant class were employed there. It was agreed that the woman did not have to show that she shared common terms and conditions with her compara-tor, either in relation to those terms which were alleged to constitute the discrimination or in relation to the other terms. What had to be shown was that the different class-es of employee shared common terms. It was agreed that the women did so. Hence:

“What therefore has to be shown is that the male comparators at other establishments and at her es-tablishment share common terms and conditions. If there are no such men at the claimant’s place of work then it has to be shown that like terms and conditions would apply if men were employed there in the particular jobs concerned” (p 526F).

The Corporation claimed that this meant that the terms and conditions of the comparators had to be the same in substantially all respects. Lord Slynn rejected this and adopted a test of broad similarity:

“The purpose of requiring common terms and con-ditions was to avoid it being said simply ‘a garden-er does work of equal value to mine and my com-parator at another establishment is a gardener.’ It was necessary for the applicant to go further and to show that gardeners at other establishments and at her establishment were or would be employed on broadly similar terms. It was necessary but it was also suffi cient” (p 527D).

12. The principles to be derived from these two cases are therefore plain. First, the “common terms and condi-tions” referred to in section 1(6) are not those of, on the one hand, the women applicants and, on the other hand, their claimed comparators. They are, on the one hand, the terms and conditions under which the male compara-tors are employed at different establishments from the women and, on the other hand, the terms and conditions under which those male comparators are or would be employed if they were employed at the same establish-ment as the women. Second, by “common terms and conditions” the subsection is not looking for complete correspondence between what those terms are, or would be, in the woman’s place of work. It is enough that they are, or would be, broadly similar.

13. It is also plain from the reasoning of both Lord Bridge in Leverton and Lord Slynn in British Coal Corporation that it is no answer to say that no such male comparators ever would be employed, on those or any other terms, at the same establishment as the women. Otherwise, it would be far too easy for an em-ployer so to arrange things that only men worked in one place and only women in another. This point is of particular importance, now that women are entitled to claim equality with men who are doing completely dif-ferent jobs, provided that the women are doing jobs of equal value. Those completely different jobs may well



be done in completely different places from the jobs which the women are doing.

14. However, it is fair to say that it is not clear from the facts as we have them that this was the actual situa-tion in the British Coal Corporation case. Some of the male surface mine workers were working in the same colliery as some of the claimants. It could just be, as sug-gested by Mr Truscott QC on behalf of the employers in this case, that all the 47 places where the women worked were collieries at which it was possible that surface mineworkers might also work, even though those cho-sen do not in fact do so. The issue, therefore, is whether the women can compare themselves with men employed by the same employer in other places of work when in practice those men would never be employed to do their current jobs in the same place as the women.

The facts 15. These claims are brought by 251 classroom as-sistants, support for learning assistants and nursery nurses employed in a local authority’s schools. The classroom and support for learning assistants are em-ployed in the local authority’s education service under the terms contained in a national collective agreement, the Administrative, Professional, Technical and Cleri-cal agreement, known as the “Blue Book”. The nursery nurses are employed under a supplement to the Blue Book. They are based at a variety of schools in the lo-cal authority’s area. Their individual contracts specify the particular school at which they are based and also state that they may be required to work at other loca-tions. They are employed during the school terms only and work less than 35 hours per week. The convenience of these hours for people with child care or other do-mestic responsibilities is no doubt one of the reasons why these posts are predominantly held by women.

16. The claimants wish to compare themselves with a variety of manual workers employed by the same local authority, as groundsmen, refuse collectors, refuse drivers and a leisure attendant. They are employed in the authority’s combined services, under a different collective agreement, the Scottish Council for Local Authorities’ Services (Manual Workers) Scheme of Pay and Conditions of Service, known as the “Green Book”. The leisure attendant is based at a swimming pool, but the others are based at various depots in the local authority’s area, from which they go out to do their work in a variety of locations. Although some of their work is done at schools, they are not based there. Their individual contracts of employment specify the depot at which they are based and that they may be re-quired to work at other locations. They work full time with a fi xed annual leave entitlement. They are entitled to substantial bonus payments or supplements on top of their basic pay, whereas the claimants are not.

17. The authority does employ a small number of manual workers as school janitors. They are based in schools and, like the claimants, work only during the

school terms. But the claimants do not wish to compare themselves with the janitors, who are not entitled to the bonuses or supplements which the other manual work-ers enjoy.

18. It may be worth noting that the employers and trade unions have negotiated a single status collective agreement, known as the “Red Book”, which would cover both the claimants and the comparators. But the existing pay and grading arrangements were to remain in force until the employers had completed a job evalu-ation exercise. This had not been done at the time of the employment tribunal’s decision in this case, so the es-sential terms remained governed by the original Blue and Green Books.

The proceedings 19. Most of the claims were lodged between Febru-ary and December 2006, with the last claim lodged in February 2007. As none of the claimants was employed at the same establishment as their chosen comparators, the local authority applied for a pre-hearing review to have the employment tribunal determine whether or not they were “in the same employment” as defi ned in section 1(6) of the 1970 Act. The claims were con-joined by order at the outset of the pre-hearing review in December 2007.

20. This is but the fi rst hurdle which the claimants face. If they succeed in jumping it, they will still have to prove that their work is comparable to that of the men. In its original form, the 1970 Act only imposed an equality clause where they were employed in “like work” (now covered by section 1(2)(a)) or “work rated as equivalent” in a formal job evaluation exercise (now covered by section 1(2)(b)). Although both are men-tioned in the sample claim form which we have seen, these claims are primarily based on the allegation that the work done by the claimants is of “equal value” to that done by the comparators. Section 1(2)(c) of the 1970 Act (added by SI 1983/1794) applies where a “woman is employed on work which, not being work in relation to which paragraph (a) or (b) above applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value to that of a man in the same employment”. That issue has yet to be addressed.

21. Furthermore, if the claimants succeed in estab-lishing that their work is of equal value, the employer could still seek to establish that there was a good rea-son for the difference between their terms and condi-tions. Section 1(3) of the 1970 Act (as substituted by SI 1983/1794) provides:

“An equality clause . . . shall not operate in relation to a variation between the woman’s contract and the man’s contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor – (a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material



difference between the woman’s case and the man’s; and (b) in the case of an equality clause falling within subsection (2)(c) above, may be such a material difference.”

22. This issue, too, has yet to be addressed. Nevertheless, it is important to bear in mind that the question of whether there are other explanations for the difference in treatment is analytically quite distinct from the question whether the claimants and their com-parators are in the same employment within the mean-ing of section 1(6). So too is the question of what mod-ifi cations to the women’s terms and conditions would be necessary to eliminate the less favourable treatment. At times during the argument at all levels in this case, it appears that those distinctions have not been observed.

23. In May 2008, the employment tribunal deter-mined the “same employment” issue in the claimants’ favour. The employment judge defi ned the question in this way, at para 61:

“In the present case, the claimants and comparators are neither employed under the same terms and conditions nor in the same establishment. It is therefore necessary for the claimants to satisfy the Tribunal that if their comparators were employed at their establishment, they would be employed un-der broadly similar terms to those that they are em-ployed under at present.”

That, as the Court of Session later acknowledged, was exactly the right question.

24. The judge answered that question in the affi rma-tive. It was not enough for the respondents to say that the comparators would never be employed at the same establishment. They did some of their work at schools, there was no suggestion that this work was of less sig-nifi cance than the work they did elsewhere, and when they did work at schools there was no change to their terms and conditions of employment. “There was no persuasive evidence before the Tribunal that in the event they were based at the same establishment as the claimants, the comparators would be employed under terms and conditions other than the Green Book” (para 61 bis). The judge did not at that stage specifi cally refer to the evidence which had been given for the local au-thority on which that statement was based (excerpted at para 27 below), although she had earlier referred to some of it when reciting the submissions of the parties.

25. The local authority appealed to the Employment Appeal Tribunal, which handed down judgment allow-ing the appeal in May 2009: UKEATS/47/08, [2009] ICR 1363. Lady Smith accepted the respondents’ argu-ment that a woman who seeks to compare her terms and conditions with those of a man who does not work at the same establishment as she does must fi rst show that there is a “real possibility” that he could be em-ployed there to do the same or a broadly similar job to

the one which he does at the other establishment. Such a fi nding was not open to the Tribunal on the evidence.

26. The claimants then appealed to the Court of Session. Before their appeal was heard, the EAT decid-ed the case of City of Edinburgh Council v Wilkinson [2010] IRLR 756. The women claimants were em-ployed by the council on Blue Book terms in a variety of posts in schools, hostels, libraries or social work. They wished to compare themselves with manual workers, including road workers, refuse collectors, gar-deners and grave diggers, employed on Green Book terms.

Lady Smith (having revisited the House of Lords authorities discussed above) accepted that the intention of section 1(6) “could be undermined if claimants were required to establish, as fact, that there was a real pos-sibility of their comparators being employed at the same establishments as them”. It was enough to show that “it is likely that those comparators would, wherev-er they worked, always be employed on the same terms and conditions”. If they were always employed on the same terms and conditions, it was “legitimate to as-sume that they would be employed on those terms and conditions at the claimants’ establishment and men and women would thus be shown to be in the same employ-ment” (para 77). The paradigm example of the required hypothetical exercise would be where the comparators were always employed under the same collective agree-ment, as in that case.

27. When the present case came before the Court of Session, in January 2011, that court agreed with Lady Smith’s rejection of the “real possibility” test in Wilkinson: [2011] CSIH 2, 2011 SLT 203. Nevertheless, Lady Paton (delivering the opinion of the court) held that the evidence did not support the employment tri-bunal’s factual conclusion. She quoted several para-graphs from the evidence of Mr Archibald, for the local authority, at para 35 of her judgment, which included the following:

“If a manual worker comparator were for any reason to transfer to do their job solely and only in a school context, which would seem an impossible sugges-tion, then I cannot envisage other than that they would retain core Green Book conditions, but be-cause of the nature of the work undertaken across all educational establishments, their terms and condi-tions would require to be very signifi cantly varied to make working in such locations possible” (para 32).

In her view, that passage was concerned with a worker who was transferred to do most of his work at a school but remained based at his depot. Later passages in Mr Archibald’s evidence hypothesised a manual worker based at a school:

“Conceivably some new, hybrid, ‘handyperson’ type job incorporating all the tasks of the compara-tors could be created – but as to what the terms of such a job would be would be diffi cult to assess – if it was to remain on Manual Worker terms, because



of the job content then the Green Book terms any such postholder would be on (whether doing a hy-brid job or his/her current job) would not be similar to those s/he currently enjoys because so many of the provisions of the Green Book which s/he now enjoys would no longer be apt. I cannot imagine even in the hypothetical context the job or jobs be-ing able to remain similar to what they would be now – they simply would not fi t into any JES man-ual worker profi le – and that would have an effect on their terms and conditions” (para 36).

Hence the claimants had not established that, if the comparators were based at the same establishment as the claimants, the comparators would still have been employed on Green Book terms and conditions. The appeal was therefore refused, not because the employment tribunal had applied the wrong legal test, but because the evidence did not support the conclusion on the facts.

28. To complete the chronology, the Wilkinson case then came before the Court of Session: [2011] CSIH 70, 2012 SC 423. The Court upheld the decision of the EAT. Lord Eassie held, at para 35, that:

“What has to be considered is whether if a manual worker, in casu a gardener, refuse collector, or grave digger, whether hypothetically likely or not, were to be located in the claimant’s establishment for the performance of his current job he would continue to be employed on terms and conditions applicable to manual workers”.

Lady Paton distinguished the case from the present one, because the tribunal had analysed the evidence relating to the terms and conditions of work for the hypothetical transposed worker, and found it not inconceivable that he could be assigned to work at one of the claimants’ establishments and that, if so, he would still be employed on Green Book terms. But both she, at para 49, and Lord Hardie, at para 54, disagreed with Lord Eassie’s further observation, in para 35, that it was:

“erroneous (perhaps particularly in an equal value claim) to consider whether, on the transfer of the male comparator hypothetically to the woman’s es-tablishment, adjustment might be made to his terms and conditions to dovetail more closely with those of the female claimant”.

29. Thus, it would appear that, while the Court of Session has rejected the “real possibility” test, it re-mains unclear to what extent the Tribunal is obliged to hypothesise about possible adjustments to the terms and conditions which would apply in the unlikely event of the comparator being transferred to work at the same establishment as the claimant.

Discussion 30. Not surprisingly, Ms Dinah Rose QC, on behalf of the appellant claimants, argues that the tribunal should not speculate about the adjustments to the

comparators’ present terms and conditions which might be made in the unlikely event that they were transferred to the claimants’ workplace. The hypothe-sis is that the comparators are transferred to do their present jobs in a different location. The question is whether in that event, however unlikely, they would remain employed on the same or broadly similar terms and conditions to those applicable in their cur-rent place of work. As Lord Slynn had recognised in the British Coal Corporation case, the object of the legislation was to allow comparisons to be made be-tween workers who did not and never would work in the same work-place. An example might be a manu-facturing company, where the (female) clerical work-ers worked in an office block, whereas the (male) manufacturers worked in a factory.

31. She also argues that, the employment tribunal having adopted the correct test, the Court of Session should not have interfered with its fi ndings in fact. The tribunal had founded its conclusion on the fi rst of the two passages of Mr Archibald’s evidence quoted in paragraph 27 above. This was contemplating that the manual workers would become based in the claimants’ schools in order to do their present jobs, although he could not envisage that ever happening. In the second passage, he was hypothesising the creation of a com-pletely new all-purpose handyman who might plausi-bly be based in schools. That was an unnecessary and illegitimate hypothesis and the tribunal was clearly en-titled to conclude that there was no compelling evi-dence that the comparators would not be employed on the same or broadly similar terms and conditions in the unlikely event that they became based in schools.

32. Mr Truscott, for the local authority, agrees that there is no need to show a “real possibility” that the comparators could be transferred to do their current jobs in the claimants’ workplace. But, he argues, how does the British Coal Corporation test work in a fac-tual situation such as this, which goes well beyond what was envisaged in that case? That case was pre-mised on the fact that the comparators could be based at the same place as the claimants, even though some of them were not. So, while he agrees that there is no need to show a real possibility that the workers could be co-located, he argues that it should at least be fea-sible that they might be. The evidence of Mr Archibald was clear that it was not.

33. I have no hesitation in preferring the arguments presented by Ms Rose. In the fi rst place, it is by no means clear from the facts reported in the British Coal Corporation case that all the women claimants were based in collieries where there might also be surface mine-workers employed. In the second place, there is no hint of a “real possibility” or “feasibility” test in that case and I fi nd it diffi cult to discern a genuine dif-ference in principle between them. Both add an unwar-ranted gloss to the wording of the subsection as inter-preted in the British Coal Corporation case.



34. In the third place, to adopt such a test would be to defeat the object of the exercise. This is not just a matter of preventing employers from so organising their workplaces that the women work in one place and the men in another. There may be perfectly good reasons for organising the work into different places. But the object of the legislation is to secure equality of treatment, not only for the same work, but also for work rated as equivalent or assessed by the experts to be of equal value. It stands to reason, therefore, that some very different jobs which are not or cannot be carried out in the same workplaces may nevertheless be rated as equivalent or assessed as having equal value. One example is the (female) offi ce worker who needs offi ce equipment in a clean environment and the (male) factory worker who needs machines which cre-ate dirt and dust. But another is the (female) factory worker who puts microscopic circuits on silicon chips in one factory and the (male) factory worker who as-sembles computer parts in another. The fact that of ne-cessity their work has to be carried on in different places is no barrier to equalising the terms on which it is done. It is well known that those jobs which require physical strength have traditionally been better re-warded than those jobs which require dexterity. It is one of the objects of the equality legislation to iron out those traditional inequalities of reward where the work involved is of genuinely equal value.

35. In the fourth place, it is not the function of the “same employment” test to establish comparability be-tween the jobs done. That comparability is established by the “like work”, “work rated as equivalent” and “work of equal value” tests. Furthermore, the effect of the deemed equality clause is to modify the relevant term of the woman’s contract so as not to be less fa-vourable than a term of a similar kind in the contract under which the man is employed or to include a ben-eficial term in her contract if she has none (section 1(2)(a), (b) or (c) as the case may be). That modifi ca-tion is clearly capable of taking account of differences in the working hours or holiday entitlement in calcu-lating what would be equally favourable treatment for them both. Moreover, the equality clause does not op-erate if a difference in treatment is genuinely due to a material factor other than sex (section 1(3)). The “same employment” test should not be used as a proxy for those tests or as a way of avoiding the often diffi cult and complex issues which they raise (tempting though this may be for large employers faced with multiple claims such as these). Its function is to establish the terms and conditions with which the comparison is to be made. The object is simply to weed out those cases in which geography plays a signifi cant part in deter-mining what those terms and conditions are.

36. In the fifth place, the construction of section 1(6) favoured by the appellants is more consistent with the requirements of European Union law than is the construction favoured by the respondents. The 1970 Act was the United Kingdom’s way of giving effect in

United Kingdom law to the principle of equal treat-ment of men and women, fi rst enshrined in article 119 EEC, then translated into article 141 EC, and now translated into article 157 of the Treaty on the Functioning of the European Union. The Court of Justice held as long ago as 1976, in the case of Defrenne v Sabena (Case 43/75) [1976] ICR 547, 566, para 12 that the principle of equal pay for men and women “forms part of the foundations of the commu-nity” and has direct effect in the member states in rela-tion to direct discrimination which may be identifi ed solely with the aid of the criteria based on equal work and equal pay. As Advocate-General Geelhoed ex-plained in Lawrence v Regent Offi ce Care Ltd (Case C-320/00) [2003] ICR 1092:

“It is not evident from the wording of Article 141 EC that the comparison must be confi ned to one and the same employer. Its case law demonstrates that the Court has consistently stood by its require-ment that for a finding of direct discrimination there must be a clear difference in pay vis-à-vis male co-workers working in the ‘same establish-ment or service’ (see, inter alia, Defrenne v Sabe-na (Case 43/75) [1976] ICR 547, 567, para 22) or that the difference in pay must have its origin in legislative provisions or provisions of collective labour agreements (Defrenne, para 21).” (para 46)

37. There were three categories of case where it was possible to go outside the individual undertaking or service in order to make the comparison: fi rst, where statutory rules applied to the working and pay condi-tions in more than one undertaking, establishment or service, such as the pay of nurses in the National Health Service; second, where several undertakings or establishments were covered by the same collective works agreement or regulations; and third where terms and conditions were laid down centrally for more than one organisation or business within a holding compa-ny or conglomerate (paras 50, 49). This was because:

“The feature common to the three categories is that regulation of the terms and conditions of em-ployment actually applied is traceable to one source, whether it be the legislature, the parties to a collective works agreement, or the management of a corporate group” (para 51).

38. This was an essential criterion because article 141 was “addressed to those who may be held respon-sible for the unauthorised differences in terms and conditions of employment” (para 52). Hence:

“It is clear from the foregoing that the direct effect of article 141 EC extends to employees working for the same legal person or group of legal per-sons, or for public authorities operating under joint control, as well as cases in which for purposes of job classifi cation and remuneration, a binding col-lective agreement or statutory regulation applies. In all these cases the terms and conditions of em-ployment can be traced back to a common source” (para 54).



39. In Lawrence itself, the Court of Justice agreed that the principle was not limited to situations in which men and women worked for the same employer (Judgment, para 17). But in the case in question, the differences “cannot be attributed to a single source, there is no body which is responsible for the inequality and which could restore equal treatment” (Judgment, para 18). This was because the claimants, women cleaners and catering workers who had previously been employed by North Yorkshire County Council and whose work had then been rated as equivalent to that of men doing jobs such as gardening, refuse col-lection and sewage treatment, were now working for the private company to whom the cleaning and cater-ing service had been contracted out. They could no longer, therefore, compare their pay and conditions with the men who now worked for a different employ-er. (It is worth noting that no question had been re-ferred to the court about the effect of the regulations governing the transfer of undertakings.)

40. The position is thus that, for the principle of equal pay to have direct effect, the difference in treat-ment must be attributable to a single source which is capable of putting it right. As it happens, the research-es of counsel have discovered no case in the Court of Justice in which the principle of equal pay has not been applied between men and women who work for the same employer. However, in Department for Environment, Food and Rural Affairs v Robertson [2005] EWCA Civ 138, [2005] ICR 750, the Court of Appeal held that the terms and conditions of civil ser-vants working in different Government departments were not attributable to a “single source” for the pur-pose of article 141 EC. Although they were all the ser-vants of the Crown, responsibility for negotiating and agreeing their pay and conditions had been devolved by delegated legislation to the individual departments concerned. It was common ground that the claimants and their would-be comparators in the Department for Transport, Environment and the Regions were not in “the same employment” within the meaning of section 1(6) of the 1970 Act, because they did not work at the same establishment and common terms and conditions had not been observed in the two departments since the delegation.

41. Mr Robin Allen QC, for the Equality and Human Rights Commission, tells us that it is the view of the Commission that Robertson was wrongly decid-ed, because it did lie within the power of the Crown to put matters right. It is not necessary for us to deter-mine that question now. In this case it is quite clear that the difference in treatment between the claimants and their comparators is attributable to a single source, namely the local authority which employs them and which is in a position to put right the discrepancy if required to do so. If section 1(6) were to operate as a barrier to a comparison which was required by EU law in order to give effect to the fundamental principle of equal treatment, it would be our duty to disapply it.

However, for the reasons given earlier, it sets a low threshold which does not operate as a barrier to the comparison proposed in this case.

42. I would therefore allow this appeal and restore the decision of the employment tribunal. The employ-ment judge asked herself the right question and was entitled on the evidence to answer it in the way that she did.


[2013] EqLR 826 Riežniece v Zemkopibas ministrija: CJEU

Riežniece v Zemkopıbas ministrija

C-7/12

Court of Justice of the European Union (Fourth Chamber) (L Bay Larsen – President of the Chamber; J Malenovský, U Lõhmus, M Safjan [Rapporteur], A Prechal – Judges )

20 June 2013

Pregnancy and maternity: indirect discrimination ● Sex: indirect discrimination

The Court of Justice of the European Union (CJEU) held that neither the Equal Treatment Directive nor the Framework Agreement on Parental Leave prevented employers from assessing employees who had taken parental leave with a view to ascertaining whether they would be affected by the abolition of a post to which they were due to return after parental leave, even if they were assessed by reference to a different period of time to those employees who had remained in active service. However, the CJEU stressed that any such assessment must not be indirectly discriminatory and it set out clear requirements with which such an assessment must comply: the assessment had to encompass all workers liable to be affected by the abolition of the post; the assessment of the workers who had taken parental leave and those who had not and had remained in active service in the period prior to the assessment, had to be based on identical criteria; and the implementation of those criteria must not involve the physical presence of the workers as that imposed a condition which a worker on parental leave was unable to fulfi l.

The factsNadežda Riežniece, the Claimant, held the post of principal adviser in the Legal Affairs Division of the Latvian Ministry of Agriculture. In 2006, she underwent an annual performance appraisal in order to assess the quality of her work and to improve and promote her professional development. The appraisal questionnaire used fi ve criteria.

The Claimant took parental leave from 2006 until May 2009. In 2009, a post of principal adviser in the

Legal Affairs Division was abolished as part of a reorganisation. In order to ascertain which worker would be affected by the abolition of that post, an assessment of the performance and qualifi cations of four offi cials, including the Claimant, was undertaken. Eight criteria were used in that assessment, fi ve of which were used in the annual appraisal scheme, including the Claimant’s, in 2006. Two of the criteria used in the annual review were not used in the 2009 assessment. Two of the offi cials assessed had been in active service immediately before the assessment took place. They were assessed against the eight criteria identifi ed in 2009. The two other offi cials assessed, including the Claimant, had not been in active service as they had taken parental leave. They were assessed on the basis of the last annual performance conducted before they took parental leave.

The Claimant obtained the lowest overall mark. She was informed that her employment would be terminated due to the abolition of the post. However, she was also offered alternative employment as a principal adviser in the development of information systems unit in the Information Department. The Claimant accepted the transfer to that alternative post. However, in May 2009, due to economic diffi culties, further measures requiring structural changes were introduced. The Claimant was informed that the new post to which she had transferred had been abolished and that accordingly her employment as a public offi cial was terminated.

The Claimant issued proceedings in the Administrative Courts in which she argued that it was discriminatory for workers in active employment and workers on parental leave to be assessed on the basis of different principles. She also argued that workers taking parental leave have a right, at the end of that leave, to return to their post or an equivalent post.

Ultimately, the Senate of the Latvian Supreme Court, to which the case was appealed, decided to stay proceedings and to refer the following questions to the CJEU for a preliminary ruling:“1. Must the provisions of [Directive 76/207] … and of the Framework Agreement on Parental Leave … be interpreted as meaning that an employer is precluded from undertaking any action (in particular, the assessment of an employee while absent) which might result in a female employee on parental leave losing her post after returning to work?2. Does the answer to the previous question differ if the reason for such action is the fact that, due to the economic recession in a Member State, in all the administrations of the State the number of civil servants has been optimised and posts abolished?

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Riežniece v Zemkopibas ministrija: CJEU [2013] EqLR 827

3. Must the assessment of [a female worker’s] work and qualifi cations, which takes into account her latest annual performance appraisal as a civil servant and results before parental leave, be regarded as indirect discrimination when compared to the fact that the work and qualifi cations of other civil servants who have continued in active employment (taking the opportunity, moreover, to achieve further merit) are assessed according to fresh criteria?”

Council Directive 96/34 on the framework agreement on parental leave sets out minimum requirements on parental leave “as an important means of reconciling work and family life and promoting equal opportunities and treatment between men and women.” Clause 2 of the Framework Agreement provided that:“…4. In order to ensure that workers can exercise their right to parental leave, Member States and/or management and labour shall take the necessary measures to protect workers against dismissal on the grounds of an application for, or the taking of, parental leave in accordance with national law, collective agreements or practices.5. At the end of parental leave, workers shall have the right to return to the same job or, if that is not possible, to an equivalent or similar job consistent with their employment contract or employment relationship.”

DecisionThe Court of Justice of the European Union ruled as follows:“Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, as amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002, where a much higher number of women than men take parental leave, which it is for the national court to verify, and the Framework Agreement on Parental Leave, concluded on 14 December 1995, contained in the Annex to Council Directive 96/34/EC of 3 June 1996 on the Framework Agreement on Parental Leave concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 97/75/EC of 15 December 1997, must be interpreted as precluding:– a situation where, as part of an assessment of workers in the context of abolishment of offi cials’ posts due to national economic diffi culties, a worker

who has taken parental leave is assessed in his or her absence on the basis of assessment principles and criteria which place him or her in a less favourable position as compared to workers who did not take parental leave; in order to ascertain whether or not that is the case, the national court must inter alia ensure that the assessment encompasses all workers liable to be concerned by the abolishment of the post, that it is based on criteria which are absolutely identical to those applying to workers in active service and that the implementation of those criteria does not involve the physical presence of workers on parental leave; and– a situation where a female worker who has been transferred to another post at the end of her parental leave following that assessment is dismissed due to the abolishment of that new post, where it was not impossible for the employer to allow her to return to her former post or where the work assigned to her was not equivalent or similar and consistent with her employment contract or employment relationship, inter alia because, at the time of the transfer, the employer was informed that the new post was due to be abolished, which it is for the national court to verify.

The CJEU HELD:(1) While the Framework Agreement on Parental Leave requires that workers are guaranteed the right to return to their post at the end of parental leave, or, where this is not possible, to an equivalent or similar job consistent with their employment contract or employment relationship, it does not preclude, where a post is to be abolished, an employer from assessing a worker who has taken parental leave, with a view to transferring that worker to an equivalent or similar post consistent with that worker’s employment contract or relationship. That principle applies equally where the employer intends to reduce the number of workers in all of the State administrative departments due to national economic diffi culties. An employer is allowed to reorganise its departments in order to ensure effi cient management of its organisation, subject to compliance with the applicable rules of European Union law.

(2) An employer is also not prohibited from dismissing a worker who has taken parental leave,



provided that the worker was not dismissed on the grounds of the application for, or the taking of, parental leave.

(3) Equal Treatment Directive 76/207 prohibits indirect discrimination on grounds of sex in the context of working conditions, including the conditions applicable to a worker who has taken parental leave returning to work. If a much higher number of women than men take parental leave, it follows that, in order to avoid any discrimination and to ensure equal opportunities for men and women, the method for assessing workers in the context of the abolition of a post must not place workers who have taken parental leave in a less favourable situation than workers who have not taken parental leave.

(4) In the present case, the Claimant, who had taken parental leave, was assessed, along with other workers who had not taken parental leave, with the view to determining which of them would be affected by the abolition of a post. The employer decided to assess the workers concerned over their own most recent period of actual work, which was an earlier period of time in the case of those on parental leave as they were absent on that leave during the period immediately preceding the assessment. This led to a situation where groups of workers were assessed over two different periods. Although this may not have been a perfect solution, it was nevertheless appropriate, provided that the assessment criteria used did not put workers who had taken parental leave at a disadvantage.

In order to ensure that was the case, the assessment had to comply with a number of requirements. First, it had to encompass all workers liable to be affected by the abolition of the post. Secondly, the assessment of the workers who had taken parental leave and those who had not and who were in active service in the period prior to the assessment, had to be based on absolutely identical criteria. Finally, the implementation of those criteria must not involve the physical presence of the workers, as that imposed a condition which a worker on parental leave was unable to fulfi l. It was for the national court to determine whether the assessment carried out in the present case observed these principles or whether it did not, and thereby placed the Claimant at a disadvantage and was indirectly discriminatory.

In particular, in the present case, the fi ve criteria used for the two groups of workers only partially overlapped. Moreover, the two assessments used did not have the same objectives. The assessment carried out in respect of the Claimant, who had

been on parental leave, was an annual performance review, aimed at assessing quality of work and promoting professional development. The assessment carried out in respect of workers who had been in active service throughout was carried out in the specifi c context of the abolition of a post. In those circumstances, it was for the national court to determine whether that latter assessment was carried out in such a manner that the overall mark given to the Claimant might result from the use of criteria which she could not satisfy because she was absent from work and, further, whether her results from the earlier annual appraisal were used objectively for the later assessment.

(5) It was also for the national court to ascertain whether, in circumstances such as those of the present case, it was not possible for the employer to return the Claimant to her post and, if so, whether the work to which she was ultimately assigned was equivalent or similar and consistent with her employment contract or employment relationship.

However, an employer may not render nugatory the right of a worker who has taken parental leave to be transferred to another post, laid down in the Framework Agreement on Parental Leave, by offering that worker a post which is due to be abolished. In the present case, it would be for the national court to ascertain whether the Claimant’s employer was informed, at the time it offered her a new post, that that post was due to be abolished and would effectively lead to her dismissal.

Cases referred to Cadman v Health & Safety Executive, C-17/05 [2006] ECR I-9583 ECJBrachner v Pensionsversicherungsanstalt, C-123/10 [2011] ECR I-0000 CJEUBusch v Klinikum Neustadt GmbH & Co Betriebs-KG, C-320/01 [2003] ECR I-2041 ECJGerster v Freistaat Bayern, C-1/95 [1997] ECR I-5253 ECJLewen v Denda, C-333/97 [1999] ECR I-7243 ECJ

AppearancesFor the Latvian Government: I Kalninš and A Nikolajeva, Agents,For the Netherlands Government: C Wissels, Agent,For the Polish Government: B Majczyna and M Szpunar, AgentsFor the European Commission: C Gheorghiu; and M van Beek and E Kalninš, Agents,



JUDGMENT

1. This request for a preliminary ruling concerns the interpretation of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the princi-ple of equal treatment for men and women as regards access to employment, vocational training and promo-tion, and working conditions (OJ 1976 L 39, p. 40), as amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 (OJ 2002 L 269, p. 15) (‘Directive 76/207’), and of the Framework Agreement on Parental Leave, concluded on 14 December 1995 (‘the Framework Agreement on Parental Leave’), contained in the Annex to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4), as amend-ed by Council Directive 97/75/EC of 15 December 1997 (OJ 1998 L 10, p. 24) (‘Directive 96/34’).

2. The request has been made in proceedings be-tween Ms Riežniece and the Zemkopības ministrija (Ministry of Agriculture) and the Lauku atbalsta dien-ests (Rural Support Service) concerning her dismissal following her return to work after taking parental leave.

LEGAL CONTEXT

European Union legislationDirective 76/2073. Directive 76/207 was repealed by Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occu-pation (OJ 2009 L 204, p. 23), with effect from 15 Au-gust 2009. However, in view of the dates of the facts of the dispute in the main proceedings, Directive 76/207 still applies to it.

4. Article 4(1) of Directive 76/207 states:‘The purpose of this Directive is to put into effect in the Member States the principle of equal treat-ment for men and women as regards access to em-ployment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social se-curity. This principle is hereinafter referred to as “the principle of equal treatment”.’

5. Article 2 of the Directive is worded as follows:‘1. For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by ref-erence in particular to marital or family status.

2. For the purpose of this Directive, the following defi nitions apply:

– “direct discrimination”: where one person is treated less favourably, on grounds of sex, than an-other is, has been or would be treated in a compa-rable situation;– “indirect discrimination”: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary;...

7. ...

This Directive shall be without prejudice to the provisions of [Directive 96/34] …’

6. Article 3(1) of Directive 76/207 reads as follows:‘Application of the principle of equal treatment means that there shall be no direct or indirect dis-crimination on the grounds of sex in the public or private sectors, including public bodies, in rela-tion to:...

(c) employment and working conditions, includ-ing dismissals, as well as pay as provided for in [Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women] (OJ 1975 L 45, p. 19)];...’

The Framework Agreement on Parental Leave7. Directive 96/34 was repealed with effect from 8 March 2012 under Article 4 of Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC (OJ 2010 L 68, p. 13). However, in view of the dates of the facts of the dispute in the main proceedings, Directive 96/34 and the Framework Agreement on Parental Leave still ap-ply to it.

8. The first recital in the preamble to the Framework Agreement on Parental Leave states:

‘The enclosed framework agreement represents an undertaking by UNICE [Union of Industrial and Employers’ Confederations of Europe], CEEP [European Centre of Employers and Enterprises] and the ETUC [European Trade Union Confedera-tion] to set out minimum requirements on parental leave …, as an important means of reconciling work and family life and promoting equal oppor-tunities and treatment between men and women.’

9. Paragraph 5 of the general considerations of the Framework Agreement is worded as follows:



‘… the Council Resolution of 6 December 1994 recognises that an effective policy of equal opportu-nities presupposes an integrated overall strategy al-lowing for better organisation of working hours and greater fl exibility, and for an easier return to work-ing life, and notes the important role of the two sides of industry in this area and in offering both men and women an opportunity to reconcile their work responsibilities with family obligations’.

10. Clause 1 of the Framework Agreement states as follows:

‘1. This agreement lays down minimum require-ments designed to facilitate the reconciliation of parental and professional responsibilities for work-ing parents.

2. This agreement applies to all workers, men and women, who have an employment contract or em-ployment relationship as defi ned by the law, col-lective agreements or practices in force in each Member State.’

11. Clause 2 of the Framework Agreement states:‘1. This agreement grants, subject to clause 2.2, men and women workers an individual right to pa-rental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months, until a given age up to 8 years to be defi ned by Member States and/or man-agement and labour....

4. In order to ensure that workers can exercise their right to parental leave, Member States and/or management and labour shall take the necessary measures to protect workers against dismissal on the grounds of an application for, or the taking of, parental leave in accordance with national law, collective agreements or practices.

5. At the end of parental leave, workers shall have the right to return to the same job or, if that is not possible, to an equivalent or similar job consistent with their employment contract or employment re-lationship....’

Latvian legislation12. The Labour Code (Darba likums, Latvijas Vēstnesis, 2001, No 105), in the version thereof appli-cable to the facts of the main proceedings, provides in Article 156:

‘1. All workers shall be entitled to parental leave in the event of birth or adoption of a child. That leave shall be granted for a maximum period of 18 months, until the date of the child’s eighth birthday....

3. The period during which the worker is on parental leave shall be considered to be a period of work.

4. Workers taking parental leave shall retain their previous employment. If that is not possible, the employer shall guarantee them similar or equiva-lent employment, on working and employment conditions which cannot be less favourable.’

13. Point 2 of Instruction No 2 of the Latvian Council of Ministers of 13 February 2001 on the performance of public offi cials and procedure for assessing their results (Ministru kabineta instrukcija Nr. 2 – Ierēd�a darbības un tās rezultātu novērtēšanas kārtība) (Latvijas Vēstnesis, 2001, No 27) is worded as follows:

‘The purpose of assessing the performance of pub-lic offi cials and their results is to evaluate the per-formance of public offi cials and their results over the course of a certain period and to determine their needs in terms of training and career devel-opment in order to improve and promote their per-formance with a view to achieving the objectives set for the ministries and the exercise of their func-tions. The results of the assessment serve as a ba-sis for decisions as to whether to grant the status of public offi cial, the non-suitability of the public of-fi cial for the posts held, transfers to posts and the attribution of grades.’

14. Article 2(4) of the Law on public officials (Valsts civildienesta likums), in the version thereof ap-plicable to the dispute in the main proceedings, states:

‘Unless otherwise provided for herein, legal rela-tionships in the civil service shall be governed by the legal and statutory provisions governing em-ployment-law relationships which lay down the principles of equal treatment and non-discrimina-tion, the prohibition on creating unfavourable working conditions, and rules governing working hours and rest time, remuneration, workers’ fi nan-cial liability and time-limits.’

The dispute in the main proceedings and the questions referred for a preliminary ruling15. It is apparent from the order for reference that, by decision of the Lauku atbalsta dienests of 14 No-vember 2005, Ms Riežniece was appointed to the post of principal adviser in the Legal Affairs Division of the Administrative Department.

16. In 2006, Ms Riežniece was given an annual per-formance appraisal in her capacity as a public offi cial, with a view to assessing the quality of her work and improving and promoting her professional develop-ment (‘the 2006 performance appraisal’). The apprais-al questionnaire comprised fi ve criteria, each of which was made up of a number of sub-criteria. An overall mark was given at the end of the appraisal.

17. Ms Riežniece took parental leave from 14 November 2007 to 6 May 2009.

18. In 2009, as part of a structural reorganisation of the Lauku atbalsta dienests, a post of principal adviser



in the Legal Affairs Division of the Administrative Department was abolished, although the post to be abolished made no reference to any particular offi cial.

19. In order to determine which offi cial would be affected by the abolishment of that post, the perfor-mance and qualifi cations of four offi cials, including Ms Riežniece, were assessed using identical criteria and the same scale of assessment (‘the 2009 perfor-mance appraisal’). Of the eight criteria used for that assessment as compared with the 2006 performance appraisal, three were new whilst fi ve had already been used, either in their current form or as part of existing criteria. Two of the criteria used for the 2006 perfor-mance appraisal were not used in 2009.

20. Two of the offi cials assessed in 2009, a man and a woman who had remained working, were assessed for the period from 1 February 2008 to 26 February 2009.

21. Ms Riežniece and another worker, who had also taken parental leave, were assessed on the basis of the last annual performance appraisal conducted before they took parental leave. Ms Riežniece, who obtained a lower overall mark than what she had been given in her 2006 performance appraisal, was ranked last. The other female worker who had taken parental leave ob-tained the highest mark, which was the same as the female worker who had remained in active service.

22. Consequently, on 7 May 2009 the Lauku atbal-sta dienests notifi ed Ms Riežniece that her employ-ment was being terminated on the ground that the post which she occupied was being abolished, whilst at the same time offering her another post as a principal ad-viser in the Development of Information Systems Unit in the Information Department. Ms Riežniece accepted the transfer to that other post immediately.

23. On 18 May 2009, due to national economic dif-fi culties, new measures requiring structural changes in the Lauku atbalsta dienests were adopted.

24. On 26 May 2009, the Lauku atbalsta dienests notified Ms Riežniece that her employment in the Public Administration would be terminated on the ground that her post in the Development of Information Systems Unit was being abolished. Ms Riežniece’s employment as a public official was, consequently, terminated, the lawfulness of which was upheld by a decision of the Zemkopības ministrija.

25. Ms Riežniece brought an action before the Administratīvā rajona tiesa (District Administrative Court) seeking: (i) a declaration that the decision of the Zemkopības ministrija which upheld the Lauku at-balsta dienests’s notice of 26 May 2009 was unlawful; (ii) compensation for material and non-material dam-age; and (iii) costs. By judgment of 21 October 2009, the Administratīvā rajona tiesa upheld Ms Riežniece’s action in part.

26. By judgment of 20 December 2010, the Administratīvā apgabaltiesa (Regional Administrative Court) before which Ms Riežniece had appealed and the Zemkopības ministrija had cross-appealed, dis-missed her appeal.

27. The Administratīvā apgabaltiesa held, fi rstly, that Ms Riežniece had been assessed objectively in terms of her work and qualifications. Secondly, it found that the administration had acted lawfully in of-fering Ms Riežniece another post when she returned to work, inter alia because the Lauku atbalsta dienests could not have foreseen that posts allocated to the Development of Information Systems Unit in the Information Department were going to be abolished.

28. Ms Riežniece brought an appeal against the judgment of the Administratīvā apgabaltiesa before the Augstākās tiesas Senāts (Senate of the Supreme Court). She argued, inter alia, that under European Union law, female workers taking parental leave have a right, at the end of that leave, to return to their post or an equivalent post. Consequently, the Administratīvā apgabaltiesa was incorrect in holding that the Lauku atbalsta dienests was free to terminate her employment as a public offi cial or to transfer her to another post. Moreover, that court misinterpreted the principle of non-discrimination in holding that workers in active service and workers on parental leave could be as-sessed on the basis of different principles.

29. It is on that basis that the Augstākās tiesas Senāts decided to stay proceedings and to refer the fol-lowing questions to the Court for a preliminary ruling:

‘1. Must the provisions of [Directive 76/207] … and of the Framework Agreement on Parental Leave … be interpreted as meaning that an employer is pre-cluded from undertaking any action (in particular, the assessment of an employee while absent) which might result in a female employee on parental leave losing her post after returning to work?

2. Does the answer to the previous question differ if the reason for such action is the fact that, due to the economic recession in a Member State, in all the administrations of the State the number of civil servants has been optimised and posts abolished?

3. Must the assessment of [a female worker’s] work and qualifi cations which takes into account her latest annual performance appraisal as a civil servant and results before parental leave be regarded as indirect discrimination when compared to the fact that the work and qualifi cations of other civil servants who have continued in active employment (taking the op-portunity, moreover, to achieve further merit) are as-sessed according to fresh criteria?’

Consideration of the questions referred30. By its three questions, which it is appropriate to consider together, the referring court asks, in essence,



whether Directive 76/207 and the Framework Agree-ment on Parental Leave must be interpreted as pre-cluding:– a situation where, as part of an assessment of work-ers in the context of abolishment of public offi cials’ posts due to national economic diffi culties, a female worker who has taken parental leave is assessed in her absence on the basis of the last annual performance appraisal done before she took parental leave, using new criteria, whilst workers who remained in active service are assessed on the basis of a more recent pe-riod, and– a situation where that female worker who has been transferred to another post at the end of her parental leave following that assessment is dismissed due to the abolition of that new post.

31. As is apparent from the fi rst recital in the pre-amble to the Framework Agreement on Parental Leave and from paragraph 5 of its general considerations, the Framework Agreement constitutes an undertaking by management and labour to introduce, through mini-mum requirements, measures to promote equal oppor-tunities and treatment between men and women, by of-fering them an opportunity to reconcile their work responsibilities with family obligations (Case C-116/08 Meerts [2009] ECR I-10063, paragraph 35, and Case C-149/10 Chatzi [2010] ECR I-8489, paragraph 56).

32. To that end, the Framework Agreement on Parental Leave enables new parents to take a break from work to devote themselves to their family re-sponsibilities, whilst giving them the assurance, set out in clause 2.5 of that agreement, that they will be enti-tled to return to the same job at the end of the leave. During a period freely set by each Member State sub-ject to a minimum duration of three months, and in ac-cordance with detailed rules left to national legisla-tures to determine, the new parents are thus able to provide their child with the assistance that his or her age requires and to make provision for measures orga-nising family life with a view to their return to work (Chatzi, paragraph 57).

33. It is appropriate to begin by examining whether an employer may, in the context of abolishing a post, proceed with the assessment of a worker who has taken parental leave.

34. As stated in clause 2.4 of the Framework Agreement on Parental Leave, workers must be pro-tected against dismissal ‘on the grounds of’ an appli-cation for, or the taking of, parental leave in accor-dance with national law, collective agreements or practices.

35. It follows from that provision that, in circum-stances such as those of the main proceedings, subject to clause 2.5 of the Framework Agreement on Parental Leave, an employer is not prohibited from dismissing a worker who has taken parental leave provided that

the worker was not dismissed on the grounds of the application for, or the taking of, parental leave.

36. Consequently, the Framework Agreement on Parental Leave does not preclude a situation where an employer, in the context of the abolishment of a post, proceeds with the assessment of a worker who has taken parental leave with a view to transferring that worker to an equivalent or similar post consistent with that worker’s employment contract or relationship. This also holds true where the employer intends to re-duce the number of workers in all of the State admin-istrative departments due to national economic diffi -culties. An employer is allowed to reorganise its departments in order to ensure effi cient management of its organisation, subject to compliance with the ap-plicable rules of European Union law.

37. Secondly, the issue must be considered whether the assessment of a female worker who has taken pa-rental leave, carried out in the context of a post being abolished, is liable to infringe the principle of non-dis-crimination.

38. It should be borne in mind in that regard that Article 3(1)(c) of Directive 76/207 prohibits discrimi-nation on grounds of sex as regards working condi-tions, which include the conditions applicable to a worker who has taken parental leave returning to work (see, to that effect, Case C-320/01 Busch [2003] ECR I-2041, paragraph 38).

39. The Court has consistently held that indirect dis-crimination arises where a national measure, albeit for-mulated in neutral terms, works to the disadvantage of far more women than men (see, in particular, Case C-1/95 Gerster [1997] ECR I-5253, paragraph 30, and Case C-123/10 Brachner [2011] ECR I-0000, paragraph 56).

40. Moreover, as observed previously by the Court in Case C-333/97 Lewen [1999] ECR I-7243, paragraph 35, on the basis of indications by the national court, women take parental leave far more often than men. It is for the national court to ascertain whether, in the Member State concerned, a much higher number of men than women take parental leave, with the result that women are more likely than men to be affected by measures such as those at issue in the main proceedings.

41. If that turns out to be the case, it then follows, as pointed out by the Latvian and Polish Governments and the European Commission, that, in order to avoid any discrimination and ensure equal opportunities for men and women, the method for assessing workers in the context of the abolishment of a post must not place workers who have taken parental leave in a less fa-vourable situation than workers who have not taken parental leave.

42. In the main proceedings, the employer proceed-ed with the assessment of the workers concerned in the



light of their most recent period of actual work. Although the assessment of workers over two different periods may not be a perfect solution, it is nevertheless appropriate, given that workers who have taken paren-tal leave are absent during the period immediately pre-ceding the assessment, provided that the assessment criteria used are not such as to place those workers at a disadvantage.

43. In order not to place workers who have taken parental leave at such a disadvantage, the assessment must comply with a certain number of requirements. In particular, it must encompass all workers liable to be affected by the abolishment of the post. Such an as-sessment must also be based on criteria which are ab-solutely identical to those which apply to workers in active service. Moreover, the implementation of those criteria must not involve the physical presence of the workers, a condition which a worker on parental leave is unable to fulfi l.

44. In the present case, the fi ve criteria used for the 2006 performance appraisal overlap only partially with the criteria used for the 2009 performance ap-praisal. Moreover, the two assessments did not have the same objectives, as the fi rst one was aimed at as-sessing the quality of work and promoting profession-al development, whilst the second one was carried out in the context of the abolishment of a post.

45. In those circumstances, the referring court must ascertain more specifi cally, fi rstly, whether the 2009 performance appraisal was carried out in such a man-ner that the overall mark given to Ms Riežniece might result from the use of criteria which she could not sat-isfy because she was absent from work and, secondly, whether her results from the 2006 performance ap-praisal were used objectively for the 2009 performance appraisal.

46. Moreover, in its third question the referring court bases itself on the premiss that the fact of being in active service allowed the officials concerned to bring up their qualification levels. The Netherlands Government submits in this respect that Ms Riežniece, who was deprived of the opportunity to improve her work, was placed at a disadvantage as compared to her colleagues who did not take parental leave.

47. It should be observed in regards to that argu-ment that, unlike workers who have taken parental leave, it is true that workers who have remained in ac-tive service have had the opportunity to acquire more experience, which generally enables those workers to perform their duties better (see, to that effect, Case C-17/05 Cadman [2006] ECR I-9583, paragraphs 34 and 35). However, the fact of being able to perform one’s duties better is merely a possibility for those workers who have remained in active service, since mere pres-ence at work does not guarantee that a worker’s results will necessarily improve.

48. In the light of the foregoing, the conclusion must be that, in the main proceedings, if there was a failure in the 2009 performance appraisal to observe the prin-ciples and assessment criteria referred to in paragraph 43 above, thereby placing Ms Riežniece at a disadvan-tage, such a situation gives rise to indirect discrimina-tion within the meaning of Article 2(2) of Directive 76/207, which it is for the national court to verify.

49. Thirdly, it must be examined whether Ms Riežniece’s employer could have transferred her to an-other post following the results of the 2009 perfor-mance appraisal.

50. Under clause 2.5 of the Framework Agreement on Parental Leave, at the end of parental leave the worker has the right to return to his or her post or, where this is not possible, to an equivalent or similar job consistent with their employment contract or em-ployment relationship.

51. It is therefore for the referring court to ascertain whether, in circumstances such as those of the main proceedings, it was not possible for the employer to return Ms Riežniece to her post and, if so, whether the work to which she was assigned was equivalent or similar and consistent with her employment contract or employment relationship.

52. In particular, Ms Riežniece argued before the referring court that the Lauku atbalsta dienests was in-formed of the imminent structural changes in the Information Department and that, in offering her a post which was already due to be abolished, the Lauku at-balsta dienests did not comply with its obligation to offer her an equivalent post.

53. If that should turn out to be the case, then it is clear that such a scenario, which is such as to deprive Ms Riežniece of the protection guaranteed to her under clause 2.4 and 2.5 of the Framework Agreement on Parental Leave, cannot be accepted.

54. The employer may not render nugatory the right of a worker who has taken parental leave to be trans-ferred to another post, in accordance with the condi-tions laid down in clause 2.5 of the Framework Agreement on Parental Leave, by offering that worker a post which is due to be abolished.

55. It is accordingly for the referring court to ascer-tain in particular whether Ms Riežniece’s employer was informed, at the time it offered her a new post, that that post was due to be abolished and would effec-tively lead to her dismissal.

56. In the light of the foregoing observations, the answer to the questions referred is that Directive 76/207, where a much higher number of women than men take parental leave, which it is for the national court to verify, and the Framework Agreement on



Parental Leave contained in the Annex to Directive 96/34, must be interpreted as precluding:– a situation where, as part of an assessment of work-ers in the context of abolishment of offi cials’ posts due to national economic diffi culties, a worker who has taken parental leave is assessed in his or her absence on the basis of assessment principles and criteria which place him or her in a less favourable position as com-pared to workers who did not take parental leave; in order to ascertain whether or not that is the case, the national court must inter alia ensure that the assess-ment encompasses all workers liable to be concerned by the abolishment of the post, that it is based on crite-ria which are absolutely identical to those applying to workers in active service and that the implementation of those criteria does not involve the physical presence of workers on parental leave; and– a situation where a female worker who has been transferred to another post at the end of her parental leave following that assessment is dismissed due to the abolishment of that new post, where it was not impos-sible for the employer to allow her to return to her for-mer post or where the work assigned to her was not equivalent or similar and consistent with her employ-ment contract or employment relationship, inter alia because, at the time of the transfer, the employer was informed that the new post was due to be abolished, which it is for the national court to verify.

Costs57. Since these proceedings are, for the parties to the main proceedings, a step in the action pending be-fore the national court, the decision on costs is a mat-ter for that court. Costs incurred in submitting obser-vations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working condi-tions, as amended by Directive 2002/73/EC of the Eu-ropean Parliament and of the Council of 23 September 2002, where a much higher number of women than men take parental leave, which it is for the national court to verify, and the Framework Agreement on Pa-rental Leave, concluded on 14 December 1995, con-tained in the Annex to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 97/75/EC of 15 Decem-ber 1997, must be interpreted as precluding:– a situation where, as part of an assessment of work-ers in the context of abolishment of offi cials’ posts due to national economic diffi culties, a worker who has taken parental leave is assessed in his or her absence on the basis of assessment principles and criteria which place him or her in a less favourable position as com-pared to workers who did not take parental leave; in order to ascertain whether or not that is the case, the

national court must inter alia ensure that the assess-ment encompasses all workers liable to be concerned by the abolishment of the post, that it is based on crite-ria which are absolutely identical to those applying to workers in active service and that the implementation of those criteria does not involve the physical presence of workers on parental leave; and– a situation where a female worker who has been transferred to another post at the end of her parental leave following that assessment is dismissed due to the abolishment of that new post, where it was not impos-sible for the employer to allow her to return to her for-mer post or where the work assigned to her was not equivalent or similar and consistent with her employ-ment contract or employment relationship, inter alia because, at the time of the transfer, the employer was informed that the new post was due to be abolished, which it is for the national court to verify.

[Signatures]


Horváth v Hungary: ECHR [2013] EqLR 835

Horváth v Hungary

Application no.11146/11

European Court of Human Rights (Second Section) (G Raimondi – President; D Jociene, PLorenzen, A Sajó, I Karakas, N Vucinić, H Keller – Judges)

29 January 2013

Race: education; indirect discrimination ● Education: race

The schooling arrangements for primary school age pupils in Hungary and, specifi cally, arrangements which determined whether they should be educated at a mainstream or remedial school, had a disproportionately prejudicial effect on the Roma community. The Applicants, men of Roma ethnic origin who had been diagnosed as being mentally disabled and educated at a remedial school, had established that that amounted to prima facie discrimination and the Hungarian Government had failed to prove that it had provided the guarantees needed to avoid the misdiagnosis and misplacement of them. The Applicants therefore necessarily suffered from discriminatory treatment in respect of their education contrary to Article 2 of Protocol No.1 to the European Convention on Human Rights read in conjunction with Article 14.

The factsThe Applicants are Hungarian nationals of Roma ethnic origin who had been assessed as having mental disabilities. They had both been placed in a primary school designed for the mentally disabled whose curriculum had been limited (the remedial school) and alleged that they had been stigmatised as a consequence. They had not had the opportunity to receive secondary school education providing a nationally recognised qualifi cation known as the Baccalaureate and were therefore unable to pursue their preferred personal choices of career. They alleged that their education in the remedial school amounted to direct and/or indirect discrimination in their enjoyment of their right to education under Article 2 of Protocol No.1 to the European Convention on Human Rights, read in conjunction

with the Article 14 prohibition on discrimination on certain grounds including those of race and association with a national minority.

When they were in their late teens, the Applicants participated in a summer camp during which their intellectual ability was reassessed by independent experts as not being mentally disabled or unfi t for integration in a mainstream school but as having learning support needs. The independent experts noted that the diagnostic methods applied by the education authorities should be reviewed, and that Roma children could have performed better in the tests if they had not been designed for children belonging to the ethnic majority. The independent experts also noted that the intelligence tests had a close correlation with school qualifi cation; therefore, education in a remedial class might signifi cantly infl uence the results of an intelligence test of a 13- to 14-year-old child.

The Applicants fi led a claim with their regional court alleging a breach of the principle of equal treatment against the remedial school, the county council and the expert panel (the Respondents to the domestic claim). They claimed that the expert panel, controlled by the county council, had discriminated against them and misdiagnosed them as being “mildly mentally disabled” on the basis of their ethnicity and social and economic background, and had subsequently ordered them to be educated in a special school, although they had normal abilities. They asserted that the expert panel was free to choose the tests it applied and that it was well-known among experts that some tests were culturally biased and led to misdiagnosis of disadvantaged children, especially Roma ones. This systemic error originated in the fl awed diagnostic system itself, which did not take into account the social or cultural background of Roma children, was as such culturally biased, and therefore led to the misdiagnosis of Roma children. They claimed that it was the responsibility of the experts, who were required by the law to be experienced in the fi eld of mental disabilities and thus obliged to know the symptoms of such disabilities, to ensure that only children with real mental disability were educated in special/disabled/special educational needs classes. In addition, and in violation of the respective rules of procedure, the Applicants complained that their parents had not been informed of the panel’s procedure or its consequences or of their rights to participate in the proceedings and to appeal against the decisions in question, so their constitutional right to a remedy was violated. Their claim against the remedial school was for a failure to recognise their normal abilities.

August_8_Horvath_ECHR.indd 835August_8_Horvath_ECHR.indd 835 2/8/13 13:28:402/8/13 13:28:40

[2013] EqLR 836 Horváth v Hungary: ECHR

The regional court found for the Applicants and ordered the Respondents to the domestic claim to pay damages for a violation of the Applicants’ rights to equal treatment and education. The remedial school and the county council appealed to the Court of Appeal, which reversed the regional court’s decision and dismissed the Applicants’ claim against those Respondents. The Court of Appeal found that there was no diagnostic testing system available that took into account the cultural, linguistic and social background of the children and that the lack of an appropriate diagnostic assessment and the Applicants’ subsequent placement in the remedial school did not have any connection with their ethnicity. The Court of Appeal therefore concluded that there had been no discrimination against the Applicants and, since they had been educated in accordance with their mental abilities, they had suffered no loss.

The Applicants applied for a review to the Supreme Court arguing that the channelling of Roma children with normal mental abilities into remedial schools amounted to direct – or alternatively indirect – discrimination on grounds of the ethnic, social or economic background of the Applicants. They argued that the diagnostic tests substantially disadvantaged Roma children compared with non-Roma children and were indirectly discriminatory. They also argued that the Respondents had failed to act with due diligence when aware of the fl aws in the diagnostic system, had failed to act in accordance with international standards when they applied a higher IQ level as the borderline between sound intellectual ability and mild mental disability than did the World Health Organisation, and, in the case of one Applicant, had placed him in a remedial school in the face of his parents’ express objections.

The Supreme Court upheld the Court of Appeal’s decision that the Applicants had not suffered discrimination. However, the Supreme Court held that the expert panel and the county council were liable to the Applicants according to normal tortious principles in respect of their handling of the parents’ rights. They reinstated the regional court’s order for damages in respect of the Applicants’ theoretical chance of their abilities being assessed more favourably.

In their application to the European Court of Human Rights, the Applicants argued, among other things, that the decision of the Supreme Court did not fully and effectively remedy the violation of their rights to equal treatment in the exercise of their right to education. They also argued that the improper shunting of Roma children into special schools amounted to indirect discrimination.

Statistical information showed that Roma children made up between 40% and 50% of the students at the remedial school in the 10 years preceding the hearing at the ECHR. Roma children made up 8.7% of primary school pupils in the city in which the school is located in 2007, the year after the Applicants brought their claim.

Article 2 of Protocol No.1 to the Convention provides: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

DecisionThe European Court of Human Rights held that there had been a violation of Article 2 of Protocol No.1 to the Convention read in conjunction with Article 14.

The ECHR HELD:(1) The relevant education legislation applied in Hungary at the material time to determine the schooling arrangements for primary school age pupils and specifi cally whether they should be educated at a mainstream or remedial school, had a disproportionately prejudicial effect on the Roma community. The Hungarian Government, given that prima facie discrimination, had failed to prove that it had provided the guarantees needed to avoid the misdiagnosis and misplacement of the Applicants, young men of Roma ethnic origin. The Applicants, therefore, necessarily suffered from discriminatory treatment.

The facts of the present case indicated that the schooling arrangements for Roma children with allegedly mild mental disability or learning disability were not attended by adequate safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State took into account their special needs as members of a disadvantaged class. As a result of the arrangements, the Applicants were placed in a remedial school for children with mental disabilities where a more basic curriculum was followed than in ordinary schools and where they were isolated from pupils from the wider population. As a consequence, they received



an education which did not offer the necessary guarantees stemming from the positive obligations of the State to undo a history of racial segregation in special schools. The education provided might have compounded their diffi culties and compromised their subsequent personal development instead of helping them to integrate into the ordinary schools and develop the skills that would facilitate life among the majority population.

(2) A general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who are identifi able on the basis of an ethnic criterion, may be considered to be discrimination contrary to the Convention, notwithstanding that it is not specifi cally aimed at that group, unless that measure is objectively justifi ed by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate. In the sphere of provision of education, as with cases concerning employment or the provision of services, it is not necessary to prove any discriminatory intent on the part of the relevant authorities.

When it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and signifi cant will be suffi cient to constitute the prima facie evidence the applicant is required to produce. This does not, however, mean that indirect discrimination cannot be proved without statistical evidence.

Where an applicant alleging indirect discrimination establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden of proof shifts to the respondent State. The latter must show that the difference in treatment is not discriminatory. Regard being had in particular to the specifi city of the facts and the nature of the allegations made in this type of case, it would be extremely diffi cult in practice for applicants to prove indirect discrimination without such a shift in the burden of proof.

(3) Statistics demonstrated that Roma children had been overrepresented among the pupils at the remedial school and that Roma appeared to have been overrepresented in the past in remedial schools generally due to the systematic misdiagnosis of mental disability. Since the underlying fi gures were not disputed by the Government – who had not produced any alternative statistical evidence – these fi gures revealed a dominant trend. This demonstrated that there was a general policy or measure which exerted a disproportionately prejudicial effect on the Roma, a particularly

vulnerable group. This disproportionate effect was noticeable even if the policy or the testing in question might have a similar effect on other socially disadvantaged groups as well.

The State had not been able to offer a reasonable justifi cation of the statistical disparity, except by reference, in general terms, to the high occurrence of disadvantageous social background among the Roma. There was, consequently, a prima facie case of indirect discrimination and it fell on the State to prove that, in the case of the Applicants, the difference in treatment was not discriminatory.

(4) A difference in treatment was discriminatory if it had no objective and reasonable justifi cation, that is, if it did not pursue a legitimate aim or if there was not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Racial discrimination is a particularly invidious kind of discrimination and the authorities must use all available means to combat racism. Accordingly, the concept of “objective and reasonable justifi cation” must be interpreted as strictly as possible in the case of a difference in treatment based on race, colour or ethnic origins.

In the present case, although the State retained the system of remedial schools/classes because they wished to fi nd a solution for children with special educational needs, the more basic curriculum followed in these schools and, in particular, the ethnic segregation which the system caused, was a matter of concern. There were serious concerns about the adequacy of measures taken to avoid misdiagnoses in the placement of children. In the light of a history of a misplacement of Roma children in remedial schools across Europe and the recognised bias in past placement procedures, the State had specifi c positive obligations to avoid the perpetuation of past discrimination or discriminatory practices disguised in allegedly neutral tests. It was incumbent on the State to demonstrate that the tests and their application were capable of determining fairly and objectively the school aptitude and mental capacity of the Applicants.

(5) It was not the role of the ECHR to judge the validity of such tests, or to identify the state-of-the-art, least culturally biased test of educational aptitude, but to ascertain whether good-faith efforts were made to achieve non-discriminatory testing. Various factors in the present case led to the conclusion that the results of the tests carried out in regard to the Applicants did not provide the necessary safeguards against misdiagnosis that would follow from the positive obligations incumbent on the State in a situation



where there is a history of discrimination against ethnic minority children.

At least part of the test battery applied was accepted to be culturally biased. Certain tests used in the case of the Applicants were found to be obsolete by independent experts. The Regional Court, which heard at fi rst instance the Applicants’ complaint of breach of the principle of equal treatment, had held that the Expert Panel that carried out the testing had failed to individualise the Applicants’ diagnoses or to specify the cause and nature of their special educational needs and therefore violated the Applicants’ rights to equal opportunity. Accordingly, there was not adequate protection in place safeguarding the applicants’ proper placement.

Cases referred toCase “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968 pp.30-31 § 3, Series A no.6 ECHR ECHRAdami v Malta No.17209/02 (2007) 44 EHRR 3 ECHRBuckley v United Kingdom No.20348/92 (1997) 23 EHRR 101 ECHRCampbell v United Kingdom No.7511/76 (1982) 4 EHRR 293 ECHRConnors v United Kingdom No.66746/01 (2005) 40 EHRR 9 ECHRDH v the Czech Republic No.57325/00 (2008) 47 EHRR 3 ECHR [GC]Horváth v Hungary (dec.) No.2351/06 9 November 2010Kiss v Hungary No.38832/06 [2011] EqLR 40 ECHR Larkos v Cyprus No.29515/95 (2000) 30 EHRR 597 ECHR [GC]Lautsi v Italy No.30814/06 [2011] EqLR 633 ECHR [GC]Nachova v Bulgaria No.43577/98 (2006) 42 EHRR 43 ECHR [GC] Oršuš v Croatia No.15766/03 (2009) 49 EHRR 26 ECHR [GC]Sahin v Turkey No.44774/98 (2007) 44 EHRR 5 ECHR [GC]Stec v United Kingdom No.65731/01 (2006) 43 EHRR 47 ECHR [GC] Valsamis v Greece No.21787/93 (1997) 24 EHRR 294 ECHR

AppearancesFor the Applicants: L Farkas, lawyer, and the European Roma Rights CentreFor the Hungarian Government: Z Tallódi, Agent for the Ministry of Public Administration and Justice

PROCEDURE

1. The case originated in an application (no. 11146/11) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Hungarian na-tionals, Mr István Horváth and Mr András Kiss (“the applicants”), on 11 February 2011.

2. The applicants were represented by Mrs L. Farkas, a lawyer practising in Budapest, and the European Roma Rights Centre, a non-governmental organisation with its seat in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.

3. The applicants alleged under Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention that their education in a remedial school had amounted to direct and/or indirect discrimination in the enjoyment of their right to education, on the basis of their Roma origin, in that their schooling assess-ments had been paper-based and culturally biased, their parents could not exercise their participatory rights, they had been placed in schools designed for the men-tally disabled whose curriculum had been limited, and they had been stigmatised in consequence.

4. On 4 January 2012 the application was commu-nicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1994 and 1992 re-spectively and live in Nyíregyháza.

A. General background6. The applicants are two young Roma men, who were diagnosed as having mental disabilities. As a re-sult of these diagnoses, the applicants were educated at the Göllesz Viktor Remedial Primary and Vocational School, a remedial school (“special educational pro-gramme” or “special” school) in the city of Nyíregy-háza, created for children with mental disabilities.

7. The proportion of Roma students at the Göllesz Viktor Remedial Primary and Vocational School was 40 to 50% in the last ten years. Statistical data indicate that in 2007 Roma represented 8.7% of the total num-ber of pupils attending primary school in Nyíregyháza. In 1993, the last year when ethnic data were offi cially collected in public education in Hungary, at least 42% of the children in special educational programme were



of Roma origin according to offi cial estimates, though they represented only 8.22% of the total student body.

8. According to statistical data in the Statistical Yearbook of Education, in 2007/2008 only 0.4–0.6% of students with special needs had the opportunity to participate in integrated mainstream secondary educa-tion providing the Baccalaureate. Although one of the second applicant’s classmates was admitted to a sec-ondary vocational school offering the Baccalaureate, neither of the applicants was enrolled in a Baccalaureate programme, which limited their access to higher edu-cation and employment. The fi rst applicant was unable to follow a course to become a dance teacher, the ca-reer of his father; instead, he received special vocation-al training to become a baker. The second applicant continued his studies in a mainstream secondary voca-tional school which did not offer the Baccalaureate, and was unable to pursue his ambition to become a car mechanic.

B. Societal context9. Scholarly literature suggests that the systemic misdiagnosis of Roma children as mentally disabled has been a tool to segregate Roma children from non-Roma children in the Hungarian public school system since at least the 1970s.

10. The national Gypsy research in 1971 made it clear that a major obstacle to the education of Gypsy children was the existence of remedial (special) schools. In 1974/1975, 11.7% of Gypsy children at-tended special schools and classes. Due to the steady increase in Gypsy enrolment, by 1985/1986 their pro-portion had reached 17.5%, whereas only 2% of major-ity Hungarian students studied in special schools and classes. Eight grades finished in special education amounted to six grades in a normal school. Between 1972 and 1975, almost 50% of the lower grade special school students in Budapest were re-tested. The most signifi cant result of the Budapest review was that if the borderline between sound and disabled mental abilities were set at IQ 70, the figure recommended by the World Health Organisation (WHO), then only 49.3% of students participating in special education qualifi ed as mentally disabled, whereas 50.7% qualifi ed as nor-mal, of whom 12% had average intellect and 38.7% were borderline cases, that is, on the brink of mental retardation. However, only 7% were qualifi ed as hav-ing average mental abilities through a complex evalua-tion. The complex evaluation qualifi ed children whose test results suggested otherwise as intellectually dis-abled. In order to come to this conclusion, the category of familial intellectual disability was introduced, a no-tion distinct from pathological mental disability.

11. According to the Hungarian authorities, in 2004, 5.3% of primary school children were mentally dis-abled in Hungary, whereas this ratio stood at 2.5% in the European Union. In the last decade the rate of men-tally disabled children has been continuously increas-

ing in Hungary, especially in the ‘mild mental disabili-ty’ and ‘other disability’ categories. Children with disadvantaged background, especially Roma ones, are signifi cantly over-represented amongst children with a disability.

12. The shortcomings of the diagnostic system were acknowledged by State authorities when in 2003 the Ministry of Education launched a programme entitled “Out of the Back Bench” with the stated aim of review-ing children and, after re-diagnosis, channelling those back to mainstream school who had been misdiag-nosed. Through the programme, 2,100 children were reassessed and 11% of the re-diagnosed children were channelled back to normal school. In Szabolcs-Szatmár-Bereg County, where the applicants are from, this rate was 16%.

13. Part of the reason for the fact that so many chil-dren were considered disabled was that the defi nition of special educational needs in Act no. LXXIX of 1993 on Public Education (“the PEA”) and the defi nition of mental disability prior to 1 September 2003 (see para-graph 63 below) went beyond mental disability and in-cluded educational challenge, dyslexia and behavioural problems.

14. In 2007, the National Expert and Rehabilitation Committee (NERC) explained that an IQ between 70 and 85 represented a borderline intellect. A child in this range of IQ could have serious and persistent learning impairment. The expert evaluating each case had to as-sess what factors tilted the balance towards mental dis-ability or sound mental ability. For example, weak abil-ities of abstraction or associative learning could indicate mental disability even above IQ 70. “Borderline intel-lect” was not on its own considered as mental retarda-tion or a cause for placement in special school.

15. In 2004 the Minister of Education requested the expert panels to stop transferring children with scores above IQ 70 to special schools. That year, a new proto-col and new standardised proceedings were adopted, calling for the disadvantaged situation of the child to be taken into account. If a child spoke the language of an ethnic minority, for instance, he or she could not be ex-amined using verbal tests in Hungarian. Still, inequali-ties persisted. The greatest difference between Roma and non-Roma children occurred in a performance test, the so-called “Mosaic Test”. One explanation for this is that Roma children have less experience with toys and games where units from bits or pictures from pieces (e.g. toy cubes with different pictures on each side, or puzzles, etc.) had to be assembled.

C. Mr Horváth’s assessments16. Mr Horváth started elementary education in the Göllesz Viktor Remedial Primary and Vocational School on the basis of the recommendation of the Expert and Rehabilitation Panel of Szabolcs-Szatmár-Bereg Coun-ty (“the Expert Panel”). His examination was requested



on 19 April 2001 by the nursery he was attending at that time. The nursery claimed that his mental and social abilities were lower than normal for his age, which showed in his sense of logic, drafting skills and commu-nication. He spent very little time in the nursery, as he was sick most of the time. This, although a common cause for bad performance in tests, was not taken into account when his results were assessed.

17. The examination requested by the nursery was performed on 17 May 2001. In addition to the obser-vation of his behaviour, his abilities (verbal, counting, cognitive, attention/concentration, visuo-motor coor-dination) and his performance, the following IQ tests were done: “Budapest Binet Test” – IQ 64; “Coloured Raven Test” – IQ 83; “Goodenough ‘draw-a-person’ Test” – DQ 67. The Expert Panel did not elaborate in its opinion on the causes of the disparate results.

18. In its opinion, the Expert Panel diagnosed Mr Horváth with “mild mental disability”, of which the origin was declared unknown. The diagnosis stated that Mr Horváth was “two and a half years behind nor-mal”, together with an immature central nervous sys-tem. Therefore, he was channelled to remedial school. As opposed to the WHO value of IQ 70, expert panels in Hungary applied, according to the Ministry of National Resources, IQ 86 as a border value between sound intellectual ability and mild mental disability.

19. Mr Horváth’s parents had been told by the Expert Panel even before the examination took place that he was going to be placed in a remedial school and they had been asked to sign the expert opinion be-fore the examination took place.

20. On 3 December 2002 the Expert Panel re-exam-ined Mr Horváth. It found that there was no develop-ment in his abilities, and reported that he was still suf-fering from mild mental disability.

21. On 28 April 2005 the Expert Panel again exam-ined Mr Horváth. According to this examination, his “Raven Test” result was IQ 61. Therefore the Expert Panel declared that his status had not changed and up-held its previous opinion.

22. On 20 March 2007 another examination took place. This time, Mr Horváth’s “Raven Test” value was IQ 71. The Expert Panel noted that he had better knowledge than this test score refl ected, had good re-sults at school in 2006 and 2007, was integrated in his school system and able to study individually, had no impediment in speech and only needed some reassur-ance. In addition, it noted that he was active in classes, hard-working and complied with all the requirements of the curriculum. Noting that Mr Horváth studied in a remedial school, the Expert Panel again diagnosed him with mild mental disability and special educational needs. Therefore it upheld his placement in remedial school.

23. Mr Horváth’s parents were not invited to par-ticipate in the diagnostic assessments. His father signed only the opinion of 17 May 2001. It is unclear if the parents were provided with information about the procedure and their respective rights, including a right to appeal, or if a copy of the opinion was given to them. His father accompanied Mr Horváth to the fi rst examination but was not allowed to attend the ex-amination itself. The parents were told the result but no explanation about the consequences was given.

24. On 26 September and 2 October 2008 Mr Horváth was re-examined by the NERC as ordered by the fi rst instance court (see paragraph 38 below). This opinion stated that the applicant had “mild mental dis-ability” although the causes of the disability could not be established.

D. Mr Kiss’s assessments25. After spending seven months in nursery, Mr Kiss started elementary education in September 1999 in a mainstream school, Primary School No. 13 locat-ed in a Roma settlement of Nyíregyháza. In its deci-sion of 4 January 1999, the local pedagogical adviso-ry service concluded that he had learning diffi culties “deriving from his disadvantaged social and cultural background” and advised him to be educated under a special programme but in a mainstream school. On 14 December 1999 the school requested an expert diag-nosis based on his results in the fi rst quarter of the school year, claiming that he had poor results, was of-ten tired, his attention was volatile and his vocabulary poor. His IQ then measured 73.

26. On 15 May 2000 the Expert Panel diagnosed Mr Kiss with “mild mental disability”. According to the “Budapest Binet Test”, his IQ was 63, and he scored IQ 83 in the “Raven Test”. Relying on the re-sults, the Expert Panel arranged for Mr Kiss to be placed at a school for children with mild mental dis-abilities. As rehabilitation, the Expert Panel proposed that his concentration and analytical-synthetical ability should be developed. The Panel’s opinion did not con-tain any explanation for the discrepancies between Mr Kiss’s IQ results in the various tests.

27. Mr Kiss’s parents objected to the placement of their child in the remedial school and insisted that he should be educated in a mainstream school, but in vain. They were not informed of their right to appeal against the Panel’s decision. Mr Kiss was then placed in Göllesz Viktor Remedial Primary and Vocational School.

28. During his studies, Mr Kiss won numerous competitions, including a poetry reading contest and sports competitions, and he was an A student until 7th grade. However, his teacher told him that he could not continue his studies to become a car mechanic as he intended to, because as a remedial school pupil, he could only choose between training courses offered by a special vocational school.



29. The Expert Panel subsequently re-assessed Mr Kiss twice, on 14 December 2002 and 27 April 2005. On the latter occasion the Expert Panel noted that, de-spite the fact that he had achieved good results at school, his analytical thinking was underdeveloped. His IQ based on the “Raven Test” scored 71, yet the Expert Panel stated that he needed to be educated fur-ther at the remedial school.

30. During the court procedure in the case (see below), the fi rst-instance court ordered that Mr Kiss be examined by the NERC. According to the expert opin-ion of 20 November 2008, his mental capacity was nor-mal, he was not mentally disabled and his SQ (social quotient) score was 90, which excluded mental disabil-ity. However, he had signifi cant defi ciencies with re-gard to acquired knowledge and had a learning impair-ment. As with the fi rst applicant, the NERC found that the Expert Panel’s decision should have noted that socio-cultural factors had played a signifi cant role in the shaping of their status from an early age, but in fact these factors and Mr Kiss’s disadvantaged situation were not taken into account.

The NERC concluded that both applicants were provided with education adequate to their abilities.

E. Review of the applicants’ intellectual ability by independent experts31. In August 2005 both applicants participated in a summer camp where the testing of 61 children with ‘special educational needs’ took place. The testing was carried out by independent experts.

32. Both applicants were assessed with various tests. With regard to Mr Horváth, the experts noted that his “Raven Test” (IQ 83) was under the average, but did not correspond to the “mentally disabled” score; there-fore, he was not mentally disabled. His “Bender B Test” referred to immature nervous system potentially causing behavioural problems and problems in study-ing but he was not considered mentally disabled or unfi t for an integrated mainstream class.

33. Mr Kiss’s “Raven Test” score was IQ 90, his “MAVGYI-R Test” score was IQ 79, and his verbal intelligence was 91. According to the assessment, he suffered from immaturity of the nervous system and dyslexia. The experts noted that he was sound of mind and could be educated in a school with a normal cur-riculum. They suggested immediate intervention by the authorities in order to place him into a mainstream school and to provide him with appropriate education. The experts also suggested a thorough pedagogical ex-amination and the development of a subsequent indi-vidual learning plan with pedagogical and psychologi-cal help. They noted that he had to catch up with his studies in order to reduce the defi ciencies he had as a result of studying under a lower curriculum.

34. The experts noted that the diagnostic methods applied should be reviewed, and that Roma children

could have performed better in the tests if those had not been designed for children belonging to the ethnic ma-jority. They stressed that the “Raven Test” measured intelligence only in a narrow margin and therefore pro-vided less data with regard to intelligence. The experts further recommended that the “MAVGYI-R” child in-telligence test should be reviewed and updated as it was outmoded and because oral tests were culturally biased and poorly compatible with the present lifestyle and knowledge of children. The experts also noted that the intelligence tests had a close correlation with school qualifi cation; therefore education in a remedial class might signifi cantly infl uence the results of an intelli-gence test of a 13/14-year-old child.

The NERC found the independent experts’ conclu-sions open to doubt.

F. First-instance court proceedings35. On 13 November 2006 the applicants filed a claim for damages with the Szabolcs-Szatmár-Bereg County Regional Court, requesting the court to estab-lish a violation of the principle of equal treatment amounting to a violation of their personality rights under section 76 of the Civil Code and section 77(3) of the PEA. The action was directed against the Ex-pert Panel, the Szabolcs-Szatmár-Bereg County Council and the Göllesz Viktor Remedial Primary and Vocational School.

36. The applicants claimed that the Expert Panel had discriminated against them and misdiagnosed them as being “mildly mentally disabled” on the basis of their ethnicity, social and economic background, and had subsequently ordered them to be educated in a special school, although they had normal abilities. They assert-ed that the expert panels were free to choose the tests applied by them, and it was well-known among experts that some tests were culturally biased and led to misdi-agnosis of disadvantaged children, especially Roma ones. This systemic error originated in the fl awed diag-nostic system itself, which did not take into account the social or cultural background of Roma children, was as such culturally biased, and therefore led to the misdiag-nosis of Roma children. They claimed that it was the responsibility of the experts who were required by the law to be experienced in the fi eld of mental disabilities and thus obliged to know the symptoms of such disabil-ities to ensure that only children with real mental dis-ability were educated in special/disabled/special educa-tional needs classes. In addition, and in violation of the respective rules of procedure, the applicants’ parents had not been informed of the Panel’s procedure or its consequences or of their rights to participate in the pro-ceedings and to appeal against the decisions in question, so their constitutional right to a remedy was violated.

37. The applicants further asserted that the County Council had failed effectively to control the Expert Panel. They also claimed that the teachers working at the Remedial School should have noticed that they were of normal abilities.



38. The Regional Court ordered the applicants to be examined by the NERC.

39. On 27 May 2009 the Regional Court found that the aggregate of the respondents’ handlings of the ap-plicants’ education had amounted to a violation of their rights to equal treatment and education and therefore ordered them, jointly and severally, to pay 1,000,000 Hungarian forints (HUF) in damages to each applicant.

The court explained that it was called on to inves-tigate whether the respondents had complied with the Constitution and the PEA, that is, ensured the appli-cants’ civil rights without any discrimination, promot-ed the realisation of equality before the law with posi-tive measures aiming to eliminate their inequalities of opportunity, and provided them with education in ac-cordance with their abilities. It reasoned that – while the statutory defi nition of “special needs” had been amended several times in the relevant period – the rel-evant regulations clearly stipulated that the expert panels should individualise each case, decide on pos-sible special needs in each case according to the needs and circumstances of the individual child, identify the reasons underlying any special needs, and establish specifi c support services which a child needed accord-ing to the extent of disability.

40. The court held that this kind of individualisation was lacking with regard to the applicants’ diagnoses and that the Expert Panel had failed to identify those specifi c professional services that would help the appli-cants in their education. It had failed to establish during the applicants’ examination and re-examination the reasons for which they were in need of special educa-tion, and whether they needed that as a result of their behaviour or of organic or non-organic reasons.

41. The court emphasised that the principle of equal treatment required that the Expert Panel decide whether children reaching school age might study in schools with a standard curriculum or in remedial schools with a special one. At the same time, the court noted that, in the present case, the operation of the Expert Panel was stalled due to ongoing restructuring and the low num-ber of professional and other staff. Therefore, the Expert Panel could not perform its duty of continuous control examinations.

42. Moreover, in the court’s view, the County Council had failed to ensure effective control over the Expert Panel and therefore failed to note that the Panel had not informed the parents appropriately. In addition, the County Council had not ensured that the expert de-cisions were individualised according to the law.

Therefore, the respondents had violated the appli-cants’ right to equal treatment.

G. Appeal procedure43. The Expert Panel did not appeal and so the above decision became fi nal and enforceable with regard to it.

On appeal by the Remedial School and the County Council, on 5 November 2009 the Debrecen Court of Appeal reversed the fi rst-instance judgment and dis-missed the applicants’ claims against those respon-dents.

44. The Court of Appeal accepted the Remedial School’s defence, namely that it had done no more than enrol the applicants according to the Expert Panel’s de-cision. It held that it was for the County Council to en-sure effective control over the lawful operation of the Remedial School and the Expert Panel. An omission in this regard might establish the County Council’s liabil-ity, in particular because the parents’ participatory rights had not been respected.

45. The Court of Appeal further noted that, in order to prevent the misdiagnosis and consequent segrega-tion of Roma children into remedial schools, there was a need, unfulfi lled as yet, for the development of a new diagnostic testing system which should take into ac-count the cultural, linguistic and social background of children. However, it held that the lack of appropriate diagnostic tools and the subsequent placement of the applicants into remedial schools did not have any con-nection to their ethnic origin, and therefore found no discrimination against the applicants, concluding that their personality rights had not been violated. In its view, the applicants had not suffered any damage as a result of the unlawful conduct of the respondents, since, according to the court-appointed experts’ opinion, they had been educated in accordance with their mental abilities. That opinion effectively confi rmed the Expert Panel’s decisions.

The Court of Appeal’s judgment further contains the following passage:

“Examining the – not at all comprehensive – amendments [of the PEA and the decrees on its im-plementation which occurred after 1 January 2007], it can be established on the one hand that those amendments were predominantly and evidently oc-casioned by the progress of related science, the re-searches and the results of surveys, and on the oth-er hand that the following of legislative develop-ments in this period was almost an impossible task for those applying the law.”

H. Review proceedings46. The applicants subsequently submitted a petition for review to the Supreme Court. They argued that there was no national professional standard established with regard to the diagnostic system in Hungary. The well-known systemic errors of the diagnostic system, together with the disregard of the socially, culturally and linguistically disadvantaged background, had re-sulted in a disproportionately high number of Roma children diagnosed as having “mild mental disability”.

47. The applicants requested the Supreme Court to establish, as an analogy with the case of D.H. and Others v. the Czech Republic ([GC], no. 57325/00,



ECHR 2007-IV), the misdiagnosis of Roma children, that is, that the channelling of Roma children with nor-mal mental abilities into remedial schools constituted discrimination. Such misdiagnosis represented direct – or alternatively indirect – discrimination, based on the ethnic, social and economic background of the ap-plicants.

48. The applicants further claimed that the Court of Appeal had wrongly concluded that there was no con-nection between the lack of appropriate diagnostic tools and the ethnic origin of the applicants. The fact that the tests themselves had no indication of ethnicity did not preclude that they forced a disproportionately high number of Roma children into a disadvantaged position in comparison with majority children. This practice amounted to a violation of section 9 (indirect discrimination) of Act no. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities (“the ETA”). In addition, the fact that the experts had disregarded the specifi c social, cultural and language components when assessing the test results had led to direct discrimination in breach of section 8 of the ETA.

49. The applicants also asserted that the respondents had not acted with due diligence in the circumstances, when – aware of the systemic error of the diagnostic system – they had failed to act according to internation-al standards. In addition, Mr Kiss had been placed in a remedial school despite the explicit objection of the parents.

50. The Supreme Court reviewed the second-in-stance judgment and found it partly unfounded. It stat-ed as follows:

“Considering the relevant provisions of the [ETA] and the [PEA] ... the Supreme Court has to decide whether the respondents discriminated against the plaintiffs on the basis of their ethnic, social, eco-nomic and cultural background, which resulted in the deprivation of their rights to be educated in ac-cordance with their abilities and therefore their rights to equal treatment, and subsequently wheth-er their personality rights have been violated.”

51. The Supreme Court upheld the second-instance judgment with regard to the fi nding that the conduct of the Remedial School and the County Council had not violated the applicants’ right to equal treatment, either in terms of direct or indirect discrimination.

52. The Supreme Court further noted:“The systemic errors of the diagnostic system lead-ing to misdiagnosis – regardless of its impact on the applicants – could not establish the respond-ents’ liability ... The creation of an appropriate pro-fessional protocol which considers the special dis-advantaged situation of Roma children and allevi-ates the systemic errors of the diagnostic system is the duty of the State.”

53. The Supreme Court noted, however, that:“[T]he failure of the State to create such a profes-sional protocol and [an eventual] violation of the ap-plicants’ human rights as a result of these systemic errors exceed the competence of the Supreme Court ... the applicants may seek to have a violation of their human rights established before the European Court of Human Rights. Therefore the Supreme Court has not decided on the merit of this issue.”

54. The Supreme Court further examined whether the respondents’ liability could be established under the general rules of tort liability regardless of the fact that it had not established a violation of the applicants’ per-sonality rights. It found no such liability in respect of the Remedial School. However, it observed that the Expert Panel’s handling of the parental rights had vio-lated the relevant law (Ministerial Decree no. 14/1994. (VI.24.) MKM). The County Council was found liable for this on account of its failure to supervise the legali-ty, or to organise the supervision of the legality, of the functioning of the Expert Panel, as well as to put an end to the unlawful practice. The prejudice to the ap-plicants was caused by their deprivation of the right to a remedy provided for by law and thereby of the theo-retical chance of obtaining a more favourable assess-ment of their learning abilities.

The Supreme Court consequently upheld the fi rst-instance judgment with regard to the payment of HUF 1,000,000 in damages to each applicant by the Expert Panel, out of which sum the County Council was obliged to pay HUF 300,000, on account of its defi cient control.

This decision was served on 11 August 2010.

II. RELEVANT DOMESTIC LAW

A. Elements of domestic law submitted by the Government55. The work of the expert and rehabilitation com-mittees examining learning abilities was, at the material time, regulated by Ministerial Decree no. 14/1994. (VI.24.) MKM. This Decree dealt with procedural is-sues, regulated the operation of expert committees, se-cured the complexity of the expert and rehabilitation committee examinations, and required that the commit-tees’ recommendations be based on a complex assess-ment of the results of medical, pedagogical and psy-chological examinations. As to the methods of examination to be used, a protocol was outlined in a manual entitled “Transfer Examinations” (“the Manu-al”), the publication of which was commissioned by the Ministry of Education in the 1980s.

56. The Manual states with emphasis that perfor-mance disorders may have two causes: the lack of knowledge or the lack of ability. It specifi es the diag-nostic signs indicating that the lack of knowledge is not caused by ability disorder as follows: where the lack of knowledge is explained by previous poor developmen-



tal conditions and poor socio-cultural environment; where the task can be simplifi ed so as to suit the child’s level of knowledge and at that level no performance disorder can be observed; where during the examina-tion the manner of making use by the child of the help provided by the examining teacher and the child’s ca-pability to be oriented and taught indicate that his abili-ties are developable; and where the child’s social matu-rity, general knowledge and performance in life situations indicate that his abilities are intact.

57. Consequently, in examining a child’s task-solv-ing performance, the interdependence of four factors shall always be examined, namely previous education-al effects, the child’s scope of knowledge, the child’s abilities and his age-related maturity.

58. The Manual further contains the following guidelines:

“Where a child from a socio-culturally retarded en-vironment is being examined, tests free of cultural elements should be used. Certain tasks of a given test may be transformed in order to adjust them – at the same level of diffi culty – to the child’s scope of knowledge...

When a socially disadvantaged child is being examined, special attention must be paid to his ca-pability to learn in the examination situation...”

59. The Manual also draws experts’ attention to the desirable procedures to be followed in examining a child of Roma ethnicity as follows:

“The fact that a child does not know the language of school instruction or that his command of lan-guage does not attain the level of mother tongue would, in itself, constitute a serious disadvantage even if the child had no school integration prob-lems resulting from social and/or cultural prob-lems. Therefore, the special education or psycho-logical examination of children coming from a dis-advantageous social situation and underdeveloped linguistic environment should be carried out with special care. From a delay in speech development no conclusions concerning the child’s mental ma-turity should be drawn. In such cases the child’s practical intelligence should be assessed, or his cognitive abilities should be examined through non-verbal tasks.”

60. This protocol was reviewed and updated be-tween 2004 and 2008 and a new Manual was pub-lished. In 2010 a new Ministerial Decree (no. 4/2010. (I.19.) OKM) was issued for the regulation of the work of the pedagogical expert services. This Decree pre-scribes a uniform procedural order for expert and reha-bilitation committees, and specifi es the professional re-quirements to be met in carrying out the examinations, based on which expert opinions are drafted; moreover, in addition to the remedies formerly introduced, it pro-vides for the involvement of an independent equal op-portunity expert, if appropriate.

B. Elements of domestic law submitted by the applicants61. Before the ETA entered into force in 2004, dis-crimination based on ethnic origin had been prohibited by the Constitution, the Civil Code and the PEA. On the enactment of the ETA, the PEA was amended to provide that the requirement of equal treatment shall apply to all participants in public education and perme-ate all segments and procedures of the same.

62. Relevant provisions of the PEA are as follows:Section 4“(7) Those co-operating in the organisation, con-trol and operation of public education and in the performance of the tasks of public education shall take account of the children’s interest, which is placed above everything else, when making deci-sions and taking measures.The children’s interests which are placed above everything else are the following in particular: ...

b) that they should be given every kind of as-sistance to evolve their abilities and talents, to develop their personalities and to update their knowledge continually as prescribed by this Act;...”

Section 10“(3) Children and pupils have the following rights:

a) they shall receive education and teaching ac-cording to their abilities, interest and faculties, continue their studies according to their abili-ties and participate in primary art education in order that their talent should be recognised and developed; ...f) they shall receive particular care – special nurture or care with the purpose of rehabilita-tion – according to their conditions and person-al endowments, they shall appeal to the institu-tion of pedagogical assistance service, irrespective of their age; ...”

63. The PEA further gives the defi nition of special educational needs (“SEN”).

Between 1 September 1996 and 1 September 2003, it provided as follows:

Section 121“(18) (later 20): [The term of] other disability [con-cerns] those children/pupils who, on the basis of the opinion of the expert and rehabilitation com-mittee:

a) struggle with pervasive development disor-der (for example, autism), orb) struggle with disorders in school perfor-mance ... because of other psychic disorders ... as a consequence of which are lastingly imped-ed in development and learning (for example, dyslexia ...); ...”

64. By 1 September 2003 the PEA was amended; and the term SEN was introduced instead of ‘other dis-ability’:



Section 121“(29) [C]hildren/pupils with [SEN] are those who, on the basis of the opinion of the expert and reha-bilitation committee:

a) suffer from physical, sensory, mental, speech defi ciency or autism, or multiple disabilities in case of the joint occurrence thereof, orb) are lastingly and substantially impeded in development and learning because of psychic disorders (for example, dyslexia ...); ...”

65. As of 1 September 2007, section 121 of the PEA reads as relevant:

“(29) [C]hildren/pupils with special educational needs are those who, on the basis of the opinion of the expert and rehabilitation committee:

a) suffer from physical, sensory, mental, speech defi ciency or autism, or multiple disabilities in case of the joint occurrence thereof, and strug-gle with lasting and serious disorders in the cognitive functions or behavioural develop-ment, attributable to organic causes, orb) struggle with long-term and serious disor-ders in the cognitive functions or behavioural development, not attributable to organic causes.”

66. As demonstrated above, as of 1996, the PEA dif-ferentiated between two categories of disability, name-ly the category of mentally disabled children and the one of those who suffered from adaptive, learning or behavioural diffi culties.

As of 2003, the term SEN was introduced and the category of mentally disabled children was defi ned as SEN(a) whereas the one of those who suffered from adaptive, learning or behavioural diffi culties was de-fi ned as SEN(b).

In 2007, the law redefi ned these categories and since then has differentiated between the two categories ac-cording to the origin of special needs: organic disabilities correspond to SEN(a) whereas special needs with non-organic causes correspond to SEN(b). If the disability is attributable to organic causes, the child is declared by the rehabilitation committee of experts as having mild men-tal disability and will be educated in a specialised institu-tion with specialised teachers. If the special needs do not originate in organic causes then the child can be educat-ed in an integrated way, that is, in normal mainstream schools but with the support of special education teach-ers. Nevertheless, the PEA also allowed ‘SEN(b) chil-dren’ to be educated in special schools or classes, under a special curriculum; in order to change this practice, a subsequent amendment was introduced to the effect that only those mentally disabled children should be placed in segregated special schools whose disability derived from organic causes.

However, in 2008, a new amendment reinstalled the previous provision of educating SEN children, again allowing children who were not mentally dis-abled and had no organic disability to be educated in segregated special schools.

67. As of 1 September 2007 the PEA introduced a provision for pupils suffering from adaptive, learning or behavioural diffi culties, who can be educated in an integrated way:

Section 30“(7) If a child/pupil struggles with adaptive, learning or behavioural diffi culties ... or the chronic and seri-ous derangement of cognitive functions or of devel-opment of behaviour ascribable to organic reasons, he or she is entitled to developmental education. ...

(8) The question whether a child/pupil struggles with adaptive, learning or behavioural diffi culties or has special educational needs shall be decided by the rehabilitation committee of experts at the re-quest of the educational counselling service.”

68. As of 2003, the PEA also regulates the neces-sary conditions for educating children with special edu-cational needs:

Section 121“(28) The necessary conditions for the education and teaching of children with special educational needs are as follows: employment of conductive therapists and therapeutic teachers according to the separate kindergarten education or school educa-tion and teaching of children/pupils and the type and severity of the special educational need; appli-cation of a special curriculum, textbooks or any other special aids necessary for education and teaching; engagement of therapeutic teachers with qualifi cations in a special fi eld necessary for pri-vate tuition, integrated kindergarten education, school education and teaching, developmental preparation and activities specifi ed by the compe-tent committee of experts; a special curriculum, textbooks and special therapeutic and technical tools necessary for the activities; provision of the professional services specifi ed by the rehabilitation committee of experts for children students; ...”

69. Under the PEA, the term “special curriculum” means that ‘SEN children’ may be exempt from certain subjects fully or partially, according to the opinion of the expert and rehabilitation committee or the pedagog-ical advisory committee.

70. Lastly, the PEA also defi nes the different cate-gories of secondary education and provides that, in order to educate children with special educational needs, secondary schools shall operate as special voca-tional school. Such schools shall educate those pupils who, as a result of their disabilities, cannot be educated in mainstream school.

C. National Social Inclusion Strategy (Extreme Poverty, Child Poverty, the Roma) (2011–2020)71. This document, published by the Ministry of Public Administration and Justice (State Secretariat for Social Inclusion) in December 2011, contains the fol-lowing passages:



“II.2. Providing an inclusive school environment, reinforcing the ability of education to compensate for social disadvantagesThe development of an inclusive school environ-ment that supports integrated education and pro-vides education that breaks the inheritance of seg-regation and disadvantages as well as the development of services assisting inclusion play a primary role in the reduction of the educational failures of disadvantaged children, including Roma children.

As emphasised in the national strategy “Making Things Better for Our Children” (2007), « in an edu-cational system creating opportunities, children, re-gardless of whether they come from poor, under-ed-ucated families, live in segregated living conditions, are disabled, migrants or blessed with outstanding talent, must receive education suited to their abilities and talents throughout their lifetime, without their education being infl uenced or affected by prejudices, stereotypes, biased expectations or discrimination. Therefore, this must be the most important priority of Hungary’s educational policy.»

In the interest of reducing the extent of educa-tional exclusion, we must reduce the selectivity of the educational system. Institutions must have ef-fective tools against discrimination and need major methodological support for promoting the integra-tion of pupils encumbered with socio-cultural dis-advantages; this is also the way to reduce the out-migration of non-Roma pupils from certain schools. The development and application of an inclusive school model is a fundamental criterion concerning the regulation, management and coordination of public education that is also key in methodological developments as well as in the renewal of teacher training and the determination of the content of co-operation between institutions.

In the interest of ensuring that, likewise, chil-dren should not be unnecessarily declared disabled, we must provide for the enforcement of procedures determined in the relevant rule of law and profes-sional criteria concerning the examinations serving as the basis for the subsequent expert opinion by providing professional assistance on an ongoing basis and with independent and effective inspec-tions. In the spirit of prevention and in the interest of ensuring the timely and professional develop-ment of children, we must create standard proce-dures, professional contents and requirements also in the areas of early childhood development, edu-cational consulting and speech therapy. The range of tests, examination methods and means used in the course of the testing and examination of chil-dren must be continuously extended. We must pay particular attention to avoiding declaring children disabled unnecessarily in the case of disadvantaged children transferred into long-term foster care and the Roma and must ensure that the tests, methods and procedures employed for the determination of the child’s actual abilities should be able to sepa-

rate any defi ciencies that may arise from environ-mental disadvantages.”

III. RELEVANT INTERNATIONAL TEXTS

A. Council of Europe sources72. Recommendation no. R(2000)4 of the Committee of Ministers to member States on the education of Roma/Gypsy children in Europe (adopted by the Committee of Ministers on 3 February 2000 at the 696th meeting of the Ministers’ Deputies) provides as follows:

“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Noting that the problems faced by Roma/Gyp-sies in the fi eld of schooling are largely the result of long-standing educational policies of the past, which led either to assimilation or to segregation of Roma/Gypsy ...

Bearing in mind that policies aimed at address-ing the problems faced by Roma/Gypsies in the fi eld of education should be comprehensive, based on an acknowledgement that the issue of schooling for Roma/Gypsy children is linked with a wide range of other factors and pre-conditions, namely the economic, social and cultural aspects, and the fi ght against racism and discrimination;

Bearing in mind that educational policies in fa-vour of Roma/Gypsy children should be backed up by an active adult education and vocational educa-tion policy; ...

Recommends that in implementing their educa-tion policies the governments of the member States:– be guided by the principles set out in the appen-dix to this Recommendation;– bring this Recommendation to the attention of the relevant public bodies in their respective countries through the appropriate national channels.”

The relevant sections of the Appendix to Recommen-dation No. R(2000)4 read as follows:

“Guiding principles of an education policy for Roma/Gypsy children in EuropeI. Structures5. Particular attention should also be paid to the need to ensure better communication with parents, where necessary using mediators from the Roma/Gypsy community which could then lead to specifi c career possibilities. Special information and advice should be given to parents about the necessity of education and about the support mechanisms that municipali-ties can offer families. There has to be mutual under-standing between parents and schools. The parents’ exclusion and lack of knowledge and education (even illiteracy) also prevent children from benefi t-ing from the education system.

6. Appropriate support structures should be set up in order to enable Roma/Gypsy children to benefi t, in particular through positive action, from equal opportunities at school.



7. The member States are invited to provide the necessary means to implement the above-men-tioned policies and arrangements in order to close the gap between Roma/Gypsy pupils and majority pupils.

II. Curriculum and teaching material8. Educational policies in favour of Roma/Gypsy children should be implemented in the framework of broader intercultural policies, taking into ac-count the particular features of the Romani cul-ture and the disadvantaged position of many Roma/Gypsies in the member States.

9. The curriculum, on the whole, and the teaching material should therefore be designed so as to take into account the cultural identity of Roma/Gypsy children. Romani history and culture should be introduced in the teaching material in order to re-fl ect the cultural identity of Roma/Gypsy children. The participation of representatives of the Roma/Gypsy community should be encouraged in the development of teaching material on the history, culture or language of the Roma/Gypsies.

10. However, the member States should ensure that this does not lead to the establishment of sep-arate curricula, which might lead to the setting up of separate classes.”

73. The Opinion on Hungary of the Advisory Committee on the Framework Convention for the Protection of National Minorities, adopted on 22 September 2000 (CM(2000)165)), contains the fol-lowing passage:

“41. The Advisory Committee is deeply con-cerned about the well documented cases of im-proper treatment of Roma children in the fi eld of education, notably through putting them in “spe-cial schools”, which are reserved ostensibly for mentally disabled children. The Advisory Com-mittee stresses that placing children in such spe-cial schools should take place only when it is ab-solutely necessary on the basis of consistent, ob-jective and comprehensive tests, which avoid the pitfalls of culturally biased testing. It considers it a positive step that the existence of and the need to address this unacceptable phenomenon has been recognised by the Ministry of Education. The Advisory Committee considers that the cur-rent situation is not compatible with Article 12(3) of the Framework Convention and must be reme-died.”

74. The Follow-up Report on Hungary (2002-2005) of the Council of Europe Commissioner for Human Rights (29 March 2006) (CommDH(2006)11) contains the following passages:

“29. The Ministry of Education estimates that 95% of children of school age are registered school attenders. Alongside the normal schooling

programme, there is special educational provision for children regarded as requiring special atten-tion on account of handicap. While the maximum size of ordinary classes is 25 children, the special classes have a maximum of 13 so as to ensure quality instruction. The per-pupil grant which central government makes to local authorities is doubled for children in the special classes.

30. Around 20% of Roma children continue to be assigned to special classes as against only 2% of Hungarian children. It should be noted that dys-lexia is regarded as a serious diffi culty requiring placement in a special class and that social mar-ginality has sometimes also been treated as a handicap. As a result, whereas the proportion of handicapped children in Europe is 2.5%, it is 5.5% in Hungary on account of inappropriate or abusive placements of this kind.

31. A protection mechanism has recently been in-troduced which requires parental consent for a child to be placed in a special class. In addition, the child must be tested without delay to assess its abilities. During the visit it was explained to the delegation that the fi les of 2,000 children regarded as handicapped had been thoroughly checked to make sure that placement in a special class was strictly necessary and to put right any abusive placements which authorities had made for fi nan-cial or segregation reasons. Of the 2,000 children concerned, 10% had been returned to ordinary schooling after the check – evidence that close su-pervision of placements must continue.”

75. The Report on Hungary of the European Commission against Racism and Intolerance (ECRI) (fourth monitoring cycle), adopted on 20 June 2008 and published on 24 February 2009, contains the fol-lowing passages:

“81. [Of] the three levels of disabilities into which children in special schools may fall (“very seri-ous” (requiring residential care), “medium-se-vere” or “mild” disability), the vast majority of children assessed as having a “mild disability” could, in the view of many NGOs, be integrated relatively easily in the ordinary school system: many children are misdiagnosed due to a failure to take due account of cultural differences or of the impact of socio-economic disadvantage on the child’s development, and others suffer from only very minor learning disabilities that do not war-rant the child’s removal from the mainstream sys-tem. ECRI repeatedly heard that investments in teacher training should primarily be directed to-wards ensuring that teachers in the mainstream school system are equipped to deal with diverse, integrated classes, rather than towards perpetuat-ing a system from which children, once streamed into it, are unlikely to break out, and which over-whelmingly results in low levels of educational



achievement and a high risk of unemployment. Some actors have suggested that – bearing in mind that the best way of ensuring that children do not wrongly become trapped in special schools is to ensure that they are never sent down that track in the fi rst place – the category of children with mild disabilities should simply be deleted from the Education Act and all children with mild disabilities integrated in the mainstream school system.

82. ECRI notes that the efforts made to date to combat the disproportionate representation of Roma children in special schools for children with mental disabilities, though they have had some positive effects, cannot be said to have had a ma-jor impact in practice so far. It stresses that, in parallel to assisting wrongly diagnosed children already in the special school system to return to the mainstream system, putting an end to this form of segregation also implies ensuring that children are not wrongly streamed into special schools.”

B. Other international texts76. For other relevant international texts, see D.H. and Others v. the Czech Republic [GC], cited above, §§ 81 to 107; and Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 87 to 97, ECHR 2010.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1 READ IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION

77. The applicants argued that their education in a remedial school represented ethnic discrimination in the enjoyment of their right to education, in breach of Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention.

Article 2 of Protocol No. 1 provides:“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

Article 14 of the Convention provides:“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opin-ion, national or social origin, association with a national minority, property, birth or other status.”

78. The Government contested that argument.

A. Admissibility1. The parties’ submissionsa. Victim statusi. The Government79. The Government argued that the applicants could no longer claim to be victims of a violation of their rights within the meaning of Article 34 of the Convention given that the Regional Court had found in respect of the Expert Panel that the applicants’ right to equal treatment and education had been violated by the Expert Panel’s failure to individualise their diag-noses or to specify the cause and nature of their spe-cial educational needs. Each of the applicants had been awarded HUF 1,000,000 as non-pecuniary dam-ages. Moreover, the Supreme Court had found that the County Council was liable for its failure to supervise the legality of the functioning of the Expert Panel which had conducted a gravely unlawful practice by failing to observe the legal guarantees concerning the parents’ rights to be present, be informed, consent or seek a remedy. The prejudice suffered on account of the applicants’ deprivation of the right to a remedy provided for by law and thereby of the theoretical chance of obtaining a more favourable assessment of their learning abilities had been compensated by non-pecuniary damages.

ii. The applicants80. The applicants contested the Government’s asser-tion that these judgments fully and effectively remedied the violation of their rights. The damages provided in re-gard to the omissions of the County Council and the Ex-pert Panel did not respond to their claim of structural di-rect/indirect discrimination, i.e. the flawed system of diagnosis in Hungary, or to their claim of misdiagnosis and inadequate education. It was also established by the Regional Court that the damage caused derived from the convergence of the actions of each of the respondents. Because of the appellate process, it was only with regard to the Expert Panel that the judgment had become fi nal. However, the applicants asserted that a fi nal judgment in respect to an authority last in line of culpability, i.e. the Expert Panel, could not effectively remedy the violation of their rights to equal treatment in education. Given that respondents’ actions had been inseparable, the Expert Panel alone could not have changed the structure under which the applicants had been misdiagnosed. Therefore, they continued to be victims of a violation of their rights under the Convention.

b. Exhaustion of domestic remediesi. The Government81. Concerning the applicants’ claim that the assess-ment of their learning abilities had not been made with culturally unbiased tests which amounted to a general claim of a systemic error, the Government submitted that in this respect the applicants had failed to exhaust domestic remedies in accordance with Article 35 § 1 of the Convention. Such claims should have been raised by the applicants in proceedings instituted against the ministry responsible for education. The availability of



this remedy was undisputable and there was record of successful such actions. Moreover, as to the issue of segregation, the Government submitted that this issue had not been raised before the competent domestic au-thorities; in particular, the question of the County Council’s liability for the eventual discriminatory ef-fect of its education policy had been not addressed by the applicants in the domestic proceedings although the local authorities were better placed to determine the ad-equacy of an education policy to the needs of the chil-dren concerned. It was true that the applicants had ini-tially filed an action against the County Council on account of its alleged failure to provide them with an education adequate to their abilities, however, they had withdrawn that action on 26 February 2007 and 9 March 2007, respectively.

ii. The applicants82. The applicants contested the Government’s posi-tion, claiming that they had submitted their claim be-fore the domestic courts against respondents who were – each to a different extent as part of a system – all re-sponsible for their misdiagnoses. They claimed that the ministry responsible for education oversaw the whole education sector, while at the local level it was the county councils which maintained, supervised and con-trolled the expert panels assessing children. In Hunga-ry, certain State duties were transferred to local public authorities due to decentralisation of the public admin-istration.

c. Six-month time-limiti. The Government83. The Government were of the opinion that the ap-plication was also inadmissible for the applicants’ fail-ure to observe the six-month time-limit laid down in Article 35 § 1 of the Convention. On the issue of whether the applicants’ education was channelled into special education on the basis of assessments made with culturally biased or unbiased tests and methods, the Regional Court’s judgment of 27 May 2009 had been the fi nal domestic decision. This judgment be-came fi nal in regard to the Expert Panel on 2 July 2009. The applicants, however, had not submitted their appli-cation until 11 February 2011, that is, more than six months later.

ii. The applicants84. In order to fi nd redress for the violation of their rights, the applicants stressed that they had needed to exhaust all effective domestic remedies available to them against all respondents who bore joint liability for the alleged breaches. Therefore the six-month time-limit ran from the receipt of the Supreme Court judg-ment on 11 August 2010. Indeed, the Government did not claim that the review by the Supreme Court had not been an effective remedy.

2. The Court’s assessment85. The Court fi nds that the above objections are in-terrelated and must be examined together. In so far as

the applicants’ claim of discrimination and/or misdiag-nosis is concerned, the Court observes that the Supreme Court did not sustain the applicants’ claim of discrimi-nation and breach of equal treatment. In particular, it confi rmed the position of the lower courts regarding the respondents’ joint liability, fi nding that, in the adju-dication of the claims against the appealing parties, it was appropriate to evaluate the conduct of the School and the County Council in relation to the unlawful acts of the Expert Panel, as established by the Regional Court, even if the latter’s judgment had become fi nal in the absence of appeal in regard to the Expert Panel. In view of this fi nding of joint liability, the Court will con-sider the alleged violations as deriving from the joint acts of the School, the County Council and the Expert Panel. However, the applicants obtained redress only in regard to the Expert Panel’s handling (see paragraphs 43 to 54 above), and none in regard to their claims of discrimination. In these circumstances, the Court is sat-isfi ed that the applicants have retained their victim sta-tus for the purposes of Article 34 of the Convention.

86. Moreover, the Court observes that the applicants pursued claims of discrimination and unequal treatment before all domestic judicial instances, including the Supreme Court, which however held in essence (see paragraph 53 above) that the applicants’ claim of sys-temic error amounting to a violation of their Convention rights could not, in the circumstances, be redressed by means of the national law. The Court is therefore satis-fi ed that – in respect of the alleged discrimination in the enjoyment of their right to education – the applicants have taken all the requisite steps to exhaust domestic remedies that can be reasonably expected in the cir-cumstances.

87. Concerning the applicants’ claim about the un-suitability of the test battery applied in their case, the Court notes that the applicants could have brought an action against the education authorities under this head. However, they did not do so. This aspect of the case cannot therefore be examined on the merits for non-ex-haustion of domestic remedies (see also Horváth and Vadászi v. Hungary (dec.), no. 2351/06, 9 November 2010).

88. It follows from the above considerations that, to the extent that the applicants have exhausted domestic remedies, the six-month time-limit ran from the service of the Supreme Court’s judgment on 11 August 2010 and has thus been respected.

89. Furthermore, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible, apart from the appli-cants’ claim about the unsuitability of the test battery applied in their cases (see paragraph 87 above), which must be rejected for non-exhaustion of domestic reme-dies, pursuant to Article 35 §§ 1 and 4.



B. Merits1. The parties’ argumentsa. The applicants90. According to the applicants, the improper shunt-ing of Roma children into special schools constituted indirect discrimination, and was impermissible under Article 2 of Protocol No. 1. Under domestic law, indi-rect discrimination occurred where an apparently neu-tral provision, criterion or practice would put persons of a specifi c racial or ethnic origin at a particular disad-vantage compared with other persons, unless that pro-vision, criterion or practice was objectively justifi ed by a legitimate aim and the means of achieving that aim were appropriate and necessary.

91. The applicants submitted that Roma were uniquely burdened by the current system; no other pro-tected group had been shown to have suffered wrong-ful placement in special schools based on the diagnos-tic system. Social deprivation was in great part linked to the concept of familial disability. This notion had been formulated during the fi rst big wave of re-diagno-sis of Roma children transferred to special schools in the 1970s. According to contemporary research, famil-ial disability could not amount to any type or form of mental disability, as it was in essence based on the so-cial deprivation and the non-mainstream, minority cul-tural background of Roma families and children. The defi nition of mental disability as comprising social de-privation and/or having a minority culture amounted to bias and prejudice.

92. In addition, the tests used for placement had been culturally biased and knowledge-based, putting Roma children at a particular disadvantage. None of the applicants had been observed in their home, and their ethnicity had not been taken into account when assessing the results. Consequently, their socio-cultural disadvantaged background resulting from their ethnic-ity had not been taken into consideration.

93. The applicants further faulted the examination process for its not being sufficiently individualised. After the fi rst assessment, based on which the appli-cants had been transferred to a special school, the ap-plicants had in fact not been re-examined. The “review” had been paper-based, their diagnoses had never been individualised, and their parents’ rights had not been respected. These failures had been established by the domestic courts. Indeed, it had been a violation to as-sign them to special schools when their tests had indi-cated IQ scores higher than WTO standards for mental disability. For the applicants, the issue was why the Government had allowed expert panels across the country and in Nyíregyháza in particular to diagnose mild mental disability contrary to WHO standards. Given that the WHO standards had been applicable at the time, the development of science and the changing terminology could not serve as a reasonable justifi ca-tion for the misdiagnoses of the applicants and the de-privation of their right to access adequate education.

Until 2007, special schools had not only educated men-tally disabled children, but also educated children with special education needs, including educational chal-lenge and poor socio-economic background. Due to an amendment in 2007, the PEA had prescribed that all children who had been sent to special schools because of “psychological disorders” or “learning diffi culties” had to be re-tested in order to establish whether the dis-order was the result of organic reasons; if not, those children had to be transferred back to normal schools.

b. The Government94. The Government denied that the applicants had been treated less favourably than non-Roma children in a comparable situation. Moreover, inasmuch as their treat-ment in education had been different from that of non-Roma (and other Roma) children of the same age, it had had an objective and reasonable justifi cation. Moreover, they had not been treated differently from non-Roma children with similar socio-cultural disadvantages.

95. The Government were of the opinion that tests and standards tailored to the Roma population would have no sensible meaning from the point of view of as-sessing a child’s ability to cope with the mainstream education system – which was the purpose of the as-sessment of learning abilities of children and of the psychometric tests applied in the process. They referred to NERC’s expert opinion of 28 June 2007, which stat-ed that the culture-bias of the “Budapest Binet Test” was less apparent in younger ages (three to six years of age) because it measured primarily basic practical knowledge. When this test was applied, its cultural bias could be compensated by a pedagogical examination aimed at exploring practical knowledge. Moreover, this one had not been the only test applied; and the appli-cants had been tested with a complex method. The di-agnoses that the applicants needed special education had not been based on a single test; they had not even been exclusively based on the results of various tests obtained in a single examination session.

96. Moreover, the results of standardising the recently developed “WISC-IV Child Intelligence Test” showed that there were no ethnically determined differences be-tween the test scores of Roma and non-Roma children. Therefore, in light of foreign experience gained in this fi eld, it had been decided in the standardisation process not to lay down separate norms specifi cally applicable to Roma children but to use other means to ensure the fair assessment of all children in the course of the application of standardised tests. Relying on expert opinions, the Government claimed that socio-cultural background had been decisive for the mental development of the child, and when the actual level of a child’s mental develop-ment (IQ) had been measured, the result had necessarily been infl uenced by the same socio-cultural effects that had shaped the child’s mental development. In sum, the above results of the standardisation proved that IQ tests did not measure any difference between Roma and non-Roma culture or any cultural differences between Roma



and non-Roma children. What they did measure was the effect of cultural deprivation or insuffi cient cultural stim-uli in early childhood on the mental development of chil-dren, irrespective of their ethnic origin. Disproportionate representation of Roma children in special education was explained by their disproportionate representation in the group deprived of the benefi cial effects of moderni-sation on the mental development of children. These fac-tors concerned areas of social development which fell outside the scope of the right to education or any of the rights enshrined in the Convention.

97. The Government were further of the opinion that the testing (or assessment) of the applicants’ abilities had been suffi ciently individualised even if their diag-noses had not been so, as it had been established and redressed by the Regional Court’s final judgment against the Expert Panel.

98. Moreover, the Government agreed that the ensu-ing possibility of errors of assessment resulting from eventual personal biases or professional mistakes being committed must be counterbalanced by appropriate safeguards. Such procedural safeguards, including the parents’ rights to be present, be informed, consent or seek remedy, were provided for by Hungarian law. The fact that these safeguards had not been respected in the applicants’ case was not disputed: it had been estab-lished by the Supreme Court which had found that the Expert Panel had conducted a gravely unlawful prac-tice in this respect and that the County Council had also been liable for this on account of its failure to supervise the legality of the functioning of the Expert Panel, as well as to put an end to the unlawful practice.

99. The assessment by the Expert Panel had not been carried out for medical purposes but with a view to determining whether the applicants could success-fully be educated in a mainstream school. Therefore, contrary to the applicants’ opinion, it could not be re-garded as misdiagnosis if a diagnosis of learning dis-ability, in terms of special education, did not coincide with a medical diagnosis of mild mental retardation as defi ned by the WHO.

100. Therefore, it had not been unreasonable for the Supreme Court to examine the applicants’ diagnoses, contrary to the medical approach proposed by them, from the point of view of their right to an education ad-equate to their abilities and to fi nd that, from this as-pect, the Expert Panel’s original diagnoses establishing that the applicants had needed education under a spe-cial curriculum had been confi rmed by the forensic ex-perts’ opinion, even in the second applicant’s case.

2. The Court’s assessmenta. General principles101. The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justifi cation, persons in rele-vantly similar situations. However, Article 14 does not

prohibit a member State from treating groups different-ly in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to at-tempt to correct inequality through different treatment may in itself give rise to a breach of the Article.

Discrimination on account of, inter alia, a person’s ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of dis-crimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authori-ties must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment. The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justifi ed in a contemporary demo-cratic society built on the principles of pluralism and respect for different cultures (see D.H. and Others, cit-ed above, §§ 175-176).

102. The Court has further established that, as a result of their turbulent history and constant uprooting, the Roma have become a specifi c type of disadvantaged and vulnerable minority. They therefore require special protection. Their vulnerable position means that special consideration should be given to their needs and their different lifestyle both in the relevant regulatory frame-work and in reaching decisions in particular cases (see Oršuš and Others, cited above, §§ 147-148).

103. Furthermore, the Court reiterates that the word “respect” in Article 2 of Protocol No. 1 means more than “acknowledge” or “take into account”; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State (see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 37, Series A no. 48). Nevertheless, the requirements of the notion of “respect”, which appears also in Article 8 of the Convention, vary considerably from case to case, given the diversity of the practices followed and the situ-ations obtaining in the Contracting States. As a result, the Contracting States enjoy a wide margin of apprecia-tion in determining the steps to be taken to ensure com-pliance with the Convention with due regard to the needs and resources of the community and of individuals (see Lautsi and Others v. Italy [GC], no. 30814/06, § 61, ECHR–2011 (extracts); Leyla ªahin v. Turkey [GC], no. 44774/98, § 135, ECHR 2005-XI; Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 30-31, § 3, Series A no. 6).

104. In the context of the right to education of mem-bers of groups which suffered past discrimination in education with continuing effects, structural defi cien-cies call for the implementation of positive measures in order, inter alia, to assist the applicants with any diffi -culties they encountered in following the school cur-riculum. These obligations are particularly stringent



where there is an actual history of direct discrimination. Therefore, some additional steps are needed in order to address these problems, such as active and structured involvement on the part of the relevant social services (see Oršuš and Others, cited above, § 177).

The Court would note in this context Recommen-dation no. R(2000)4 of the Committee of Ministers (see paragraph 72 above) according to which appropriate support structures should be set up in order to enable Roma/Gypsy children to benefi t, in particular through positive action, from equal opportunities at school.

105. Furthermore, the Court has already accepted in previous cases that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group. Such a sit-uation may amount to “indirect discrimination”, which does not necessarily require a discriminatory intent (see, amongst other authorities, D.H. and Others, cited above, § 184).

A general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who, as for instance in the present case, are identifi able on the basis of an ethnic criterion, may be considered discriminatory notwith-standing that it is not specifi cally aimed at that group, unless that measure is objectively justifi ed by a legiti-mate aim and the means of achieving that aim are ap-propriate, necessary and proportionate (see Oršuš and Others, cited above, § 150). Furthermore, discrimina-tion potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006-VIII).

106. Where it has been shown that legislation produc-es such indirect discriminatory effect, the Court would add that, as with cases concerning employment or the provision of services (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 157, ECHR 2005-VII), it is not necessary, in cases in the educational sphere, to prove any dis-criminatory intent on the part of the relevant authorities (see D.H. and Others, cited above, § 194).

107. When it comes to assessing the impact of a mea-sure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce. This does not, however, mean that indirect discrimina-tion cannot be proved without statistical evidence (see D.H. and Others, cited above, § 188).

108. Where an applicant alleging indirect discrimi-nation establishes a rebuttable presumption that the ef-fect of a measure or practice is discriminatory, the bur-den of proof shifts to the respondent State. The latter must show that the difference in treatment is not dis-criminatory (see, mutatis mutandis, Nachova and Others, loc. cit.). Regard being had in particular to the

specifi city of the facts and the nature of the allegations made in this type of case (see, mutatis mutandis, Nachova and Others, cited above, § 147), it would be extremely diffi cult in practice for applicants to prove indirect discrimination without such a shift in the bur-den of proof.

b. Application of those principles to the present case109. The Court notes that the applicants in the present case made complaints under Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention, claiming that the fact that they had been assigned to a remedial school for children with special educational needs during their primary education violated their right to receive an education and their right to be free from discrimination. In their submission, all that has to be established is that, without objective and reasonable justifi cation, they were assigned to a school where, be-cause of the limited curriculum, they were treated less favourably than non-Roma children in a comparable situation and that this amounted in their case to indirect discrimination (compare with the above-mentioned D.H. and Others judgment, § 183).

110. The Court notes that Roma children have been overrepresented among the pupils at the Göllesz Viktor Remedial Primary and Vocational School (see para-graph 7 above) and that Roma appear to have been overrepresented in the past in remedial schools due to the systematic misdiagnosis of mental disability (see paragraph 10 above). The underlying fi gures not hav-ing been disputed by the Government – who have not produced any alternative statistical evidence – the Court considers that these fi gures reveal a dominant trend. It must thus be observed that a general policy or measure exerted a disproportionately prejudicial effect on the Roma, a particularly vulnerable group. For the Court, this disproportionate effect is noticeable even if the policy or the testing in question may have similar effect on other socially disadvantaged groups as well. The Court cannot accept the applicants’ argument that the different treatment as such resulted from a de facto situation that affected only the Roma. However, it is uncontested – and the Court sees no reason to hold oth-erwise – that the different, and potentially disadvanta-geous, treatment applied much more often in the case of Roma than for others. The Government could not offer a reasonable justifi cation of such disparity, except that they referred, in general terms, to the high occur-rence of disadvantageous social background among the Roma (see paragraph 96 above).

111. Although the policy and the testing in question have not been argued to aim specifi cally at that group, for the Court there is consequently a prima facie case of indirect discrimination. It thus falls on the Government to prove that in the case of applicants the difference in treatment had no disproportionately prej-udicial effects due to a general policy or measure that is couched in neutral terms, and that therefore the differ-ence in treatment was not discriminatory.



112. The Court reiterates that a difference in treat-ment is discriminatory if “it has no objective and rea-sonable justifi cation”, that is, if it does not pursue a “le-gitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see, among many other authorities, Oršuš and Others, cited above, § 196; Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I; Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-VI). The Court stress-es that where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justifi cation must be interpreted as strictly as possible.

113. The Court notes the Government’s submissions (see paragraph 94 above) according to which the im-pugned treatment is neutral (that is, based on objective criteria) and results in the different treatment of differ-ent people, and moreover the education programme in its existing form is benefi cial to pupils with different abilities. The Court accepts that the Government’s po-sition to retain the system of special schools/classes has been motivated by the desire to fi nd a solution for chil-dren with special educational needs. However, it shares the disquiet of the other Council of Europe institutions who have expressed concerns about the more basic cur-riculum followed in these schools and, in particular, the segregation which the system causes (see paragraphs 73 to 75 above) – even if in the present case the appli-cants were not placed in ethnically segregated classes.

114. The Court notes that the Hungarian authorities took a number of measures to avoid misdiagnoses in the placement of children. Nevertheless, the Council of Europe Commissioner for Human Rights found in 2006 that 20% of Roma children continued to be assigned to special classes, as compared with only 2% of majority children (see paragraph 74 above). Moreover, the ECRI Report published in 2009 (see paragraph 75 above) indi-cated a high number of misplaced Roma pupils. For the Court, these facts raise serious concerns about the ade-quacy of these measures at the material time.

115. The Court notes that the misplacement of Roma children in special schools has a long history across Europe.

Regarding the Czech Republic, the Advisory Com-mittee on the Framework Convention for the Protec-tion of National Minorities pointed out that children who were not mentally handicapped were frequently and quasi-automatically placed in Czech remedial schools “[owing] to real or perceived language and cul-tural differences between Roma and the majority” (see D.H. and Others, cited above, § 68).

In Hungary, the concept of “familial disability” (see paragraphs 10 and 91 above) resulted in compara-ble practices. The ECRI Report published in 2009 notes that the vast majority of children with mild learning disabilities could easily be integrated into mainstream schools; and many are misdiagnosed because of socio-

economic disadvantage or cultural differences. These children are unlikely to break out of this system of infe-rior education, resulting in their lower educational achievement and poorer prospects of employment. The Report also noted that efforts to combat the high pro-portion of Roma children in special schools – both by assisting wrongly diagnosed children and preventing misdiagnosis in the fi rst place – have not yet had a ma-jor impact (see paragraph 75 above).

116. In such circumstances – and in light of the recog-nised bias in past placement procedures (see paragraph 115 above) – the Court considers that the State has spe-cifi c positive obligations to avoid the perpetuation of past discrimination or discriminative practices dis-guised in allegedly neutral tests.

117. While in the present case the Court is not called on to examine the alleged structural problems of biased testing, the related complaint being inadmissible (see paragraph 87 above), it is nevertheless incumbent on the State to demonstrate that the tests and their application were capable of determining fairly and objectively the school aptitude and mental capacity of the applicants.

118. The Court observes that the Hungarian authori-ties set the borderline value of mental disability at IQ 86, signifi cantly higher than the WHO guideline of IQ 70 (see paragraph 18 above). The Expert Panel found disparate measurements of Mr Horváth’s IQ between IQ 61 and 83. Mr Kiss had an IQ of 63 according to the “Budapest Binet Test” and an IQ of 83 according to the “Raven Test”. However, when taking the latter test at a summer camp (see paragraph 31 above), Mr Horváth scored IQ 83 and Mr Kiss IQ 90.

The Court cannot take a position as to the accept-ability of IQ scores as the sole indicators of school apti-tude but fi nds it troubling that the national authorities signifi cantly departed from the WHO standards.

119. The Court observes, further, that the tests used to assess the applicants’ learning abilities or diffi culties have given rise to controversy and continue to be the subject of scientifi c debate and research. The Court is aware that it is not its role to judge the validity of such tests, or to identify the state-of-the-art, least culturally biased test of educational aptitude. It is only called on to ascertain whether good faith efforts were made to achieve non-discriminatory testing. Nevertheless, vari-ous factors in the instant case lead the Court to con-clude that the results of the tests carried out in regard to applicants did not provide the necessary safeguards against misdiagnosis that would follow from the posi-tive obligations incumbent on the State in a situation where there is a history of discrimination against ethnic minority children.

120. In the fi rst place, the Court notes that it was com-mon ground between the parties that all the children who were examined sat the same tests, irrespective of their ethnic origin.



The Government acknowledged that at least part of the test battery applied (namely, the “Budapest Binet Test”) was culturally biased (see paragraph 95 above).

Moreover, certain tests used in the case of the ap-plicants were found to be obsolete by independent ex-perts (see paragraph 34 above).

121. In these circumstances, the Court considers that, at the very least, there is a danger that the tests were culturally biased. For the Court, the issue is therefore to ascertain to what extent special safeguards were ap-plied that would have allowed the authorities to take into consideration, in the placement and regular bian-nual review process, the particularities and special characteristics of the Roma applicants who sat them, in view of the high risk of discriminatory misdiagnosis and misplacement.

122. The Court relies in this regard on the facts estab-lished by the Regional Court which were not contra-dicted on appeal (see paragraphs 39 to 42 above). This court found that the Expert Panel had failed to individ-ualise the applicants’ diagnoses or to specify the cause and nature of their special educational needs and there-fore violated the applicants’ rights to equal opportunity. Moreover, the social services administering the place-ment had been subject to constant reorganisation. In this regard, the court had found that the conditions nec-essary for the functioning of the Expert Panel had not been provided. Consequently, the Expert Panel and the County Council could not provide the necessary guar-antees against misplacement which was historically more likely to affect Roma. Moreover, after a careful analysis of the applicable law, the Court of Appeal and the Supreme Court concluded that, as of 2003, children with special educational needs had included students with psychological developmental troubles (learning disabilities). It was not clear whether the applicants had mental (or learning) disabilities that could not have been taken into consideration within the normal educa-tion system by providing additional opportunities to catch up with the normal curriculum. Those courts found that, because of the changes in legislation, relat-ed to changing concepts on integrated education, there was lack of legal certainty from 1 January until 1 September 2007 (see paragraph 45 in fi ne above).

123. In the face of these fi ndings, it is diffi cult for the Court to conceive that there was adequate protection in place safeguarding the applicants’ proper placement. Therefore, the tests in question, irrespective of their al-legedly biased nature, cannot be considered to serve as suffi cient justifi cation for the impugned treatment.

124. As regards the question of parental consent, the Court accepts the Government’s submission that in this regard the violation of the applicants’ rights to educa-tion was recognised and adequate remedies were pro-vided in the domestic procedure (see paragraph 79 above). However, in the case of Mr Kiss, the absence of parental participation and the parents’ express objec-

tion to the placement can be seen as having contributed to the discrimination.

125. The Court notes that the identifi cation of the ap-propriate educational programme for the mentally dis-abled and students with a learning disability, especially in the case of Roma children, as well as the choice be-tween a single school for everyone, highly specialised structures and unifi ed structures with specialised sec-tions is not an easy one. It entails a diffi cult balancing exercise between the competing interests. The Court notes in the Hungarian context that the 2003 pro-gramme (see paragraph 12 above) and the 2011 National Inclusion Strategy (see paragraph 71 above) advocate an integrated approach in this respect.

As to the setting and planning of the curriculum, this mainly involves questions of expediency on which it is not for the Court to rule (see Valsamis v. Greece, 18 December 1996, § 28, Reports of Judgments and Decisions 1996-VI).

126. Nevertheless, whenever discretion capable of in-terfering with the enjoyment of a Convention right is conferred on national authorities, the procedural safe-guards available to the individual will be especially material in determining whether the respondent State has, when fi xing the regulatory framework, remained within its margin of appreciation (see Buckley v. the United Kingdom, 25 September 1996, § 76, Reports 1996–IV, and Connors v. the United Kingdom, no. 66746/01, § 83, 27 May 2004).

127. The facts of the instant case indicate that the schooling arrangements for Roma applicants with al-legedly mild mental disability or learning disability were not attended by adequate safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State took into account their special needs as members of a disadvantaged class (see, mutatis mutandis, Buckley, cited above, § 76, and Connors, cited above, § 84). Furthermore, as a result of the arrangements, the applicants were placed in schools for children with mental disabilities where a more basic curriculum was followed than in ordinary schools and where they were isolated from pupils from the wider population. As a consequence, they received an educa-tion which did not offer the necessary guarantees stem-ming from the positive obligations of the State to undo a history of racial segregation in special schools. The education provided might have compounded their dif-fi culties and compromised their subsequent personal development instead of helping them to integrate into the ordinary schools and develop the skills that would facilitate life among the majority population.

In that connection, the Court notes with interest that the new legislation intends to move out students with learning disabilities from special schools and pro-vides for children with special educational needs, in-cluding socially disadvantaged children, to be educated in ordinary schools enabling the diminution of the sta-tistical overrepresentation of Roma in the special



school population. This integration process requires the use of state-of-the-art testing.

However, in the present case the Court is not called on to examine the adequacy of education testing as such in Hungary.

128. Since it has been established that the relevant legislation, as applied in practice at the material time, had a disproportionately prejudicial effect on the Roma community, and that the State, in a situation of prima facie discrimination, failed to prove that it has provided the guarantees needed to avoid the misdiagnosis and misplacement of the Roma applicants, the Court con-siders that the applicants necessarily suffered from the discriminatory treatment. In this connection – and with regard to the vulnerability of persons with mental dis-abilities as such, as well as their past history of discrim-ination and prejudice – the Court also recalls its consid-erations pronounced in the case of Alajos Kiss v. Hungary (no. 38832/06, 20 May 2010):

“[I]f a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State’s mar-gin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question....[T]he treatment as a single class of those with intellectual or mental disabilities is a questionable classifi cation, and the curtailment of their rights must be subject to strict scrutiny.” (par-agraphs 42 and 44).

129. Consequently, there has been a violation in the instant case of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1 in respect of each of the applicants.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

130. Article 41 of the Convention provides:“If the Court fi nds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party con-cerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage131. The applicants made no damages claims.

B. Costs and expenses132. The applicants claimed, jointly, 6,000 euros (EUR) for the costs and expenses incurred before the Court. This claim corresponds to 100 hours of legal work billable by their lawyer at an hourly rate of EUR 60.

133. The Government contested this claim.

134. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,500 jointly to the applicants, who were represented by a lawyer and a non-governmental organisation, cov-ering costs under all heads.

C. Default interest135. The Court considers it appropriate that the de-fault interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning the alleged un-suitability of the test battery applied in the applicants’ case inadmissible and the remainder of the application admissible;

2. Holds that there has been a violation of Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention;

3. Holds(a) that the respondent State is to pay the applicants, jointly, within three months from the date on which the judgment becomes final in accordance with Arti-cle 44 § 2 of the Convention, EUR 4,500 (four thou-sand fi ve hundred euros), to be converted into the cur-rency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be charge-able to the applicants, in respect of costs and expenses;(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notifi ed in writing on 29 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith, RegistrarGuido Raimondi, President


[2013] EqLR 856 Employment Tribunal summaries

Sex discrimination – direct discrimination – indirect discrimination

Williams v Ministry of DefenceBirmingham Employment Tribunal (Employment Judge Dean; B Farrow, MG Murray)For the Claimant: Caroline Musgrave, counselFor the Respondent: Edmund Beever, counsel19 June 2013, 45pp

Group Captain Wendy Williams was the highest-ranking nurse serving in the RAF. She was appointed to rank OF5 on 1 July 2003. However, her attempts to gain promotion to the rank of OF6 were unsuccessful. She claimed that this was due both to direct and indirect sex discrimination.

In order to be promoted, the Claimant had to be selected as the RAF candidate to compete against candidates from the Royal Navy and the Army. However, she was not selected as the RAF preferred candidate.

In considering the direct discrimination claim, the Employment Tribunal noted the “abject failure” by the Respondent to follow the guidance in the statutory employment Code of Practice issued by the Equality and Human Rights Commission. The Tribunal said that this caused them “to draw an adverse inference in respect of their conduct particularly as in other selection exercises a compliant procedure has been followed”. It also drew an adverse inference from the failure to investigate the Claimant’s complaint about the selection process.

The Tribunal noted statistical evidence that showed that women within the Armed Forces were less likely to be promoted through the ranks and above OF5 level within the MoD than men. It also held that the Respondent had “failed to show an objective competency-based assessment of the Claimant’s suitability for promotion both individually and in comparison with other offi cers”. The RAF preferred candidate was a Group Captain Gaffney, but the Tribunal found that: “The Claimant was not only equal to Group Captain Gaffney but that an

objective review of her appraisals and those of Group Captain Gaffney would have led to the Claimant being considered as the properly preferred candidate for the RAF.”

This led the Tribunal to conclude that the Respondent discriminated against the Claimant directly in treating her less favourably in comparison to persons of the opposite sex, being the Claimant’s comparator Group Captain Gaffney.

The Tribunal also held that the failure to select the Claimant was as a result of the Respondent applying a provision, criterion or practice that a doctor was more likely to succeed in relation to the competition than a nurse, and that this was not a proportionate means of achieving a legitimate aim.

http://tinyurl.com/williams1308

Sex discrimination – harassment

LKR v SP LtdLondon Central Employment Tribunal (Employment Judge DA Pearl; L Chung, AR Mitchell)For the Claimant: Nicholas Goodfellow, counselFor the Respondent: David Massarella, counsel10 June 2013, 25pp

The Claimant was employed between October 2007 and February 2012. In February 2008, she became an administrative assistant to DNB, the owner and CEO of the company, and a married man.

In approximately April 2008, the Claimant and DNB began a sexual relationship. Their relationship deteriorated, however, after a malicious Christmas card was sent to DNB’s wife in 2010, revealing that the Claimant was DNB’s mistress, and that he had paid for her fl at, car, holidays and gifts. The relationship was “on-off” during 2011. There was then a crisis in early 2012, which led to the Claimant’s dismissal.

The Claimant brought a claim for direct sex discrimination and harassment, but this was almost

From the Employment Tribunals

Summaries by Michael Rubenstein

This section of EqLR contains summaries of signifi cant or particularly interesting recent Employment Tribunal decisions followed by an online link to the transcripts of the full judgments.

august_9_ETs.indd 856august_9_ETs.indd 856 1/8/13 19:32:541/8/13 19:32:54

Employment Tribunal summaries [2013] EqLR 857

entirely unsuccessful. The Employment Tribunal held that the dismissal was because the relationship had broken down and that this was not because of the Claimant’s gender.

So far as the harassment claim was concerned, this was partly based on comments by DNB to the effect that the Claimant should leave the employment. The Tribunal accepted that this was unwanted conduct “related to” the Claimant’s gender, even though it was not “because” of her gender. However, they did not have the purpose of violating her dignity or of creating an offensive environment for her, or that effect.

Similarly, as regards the dismissal itself, there was no evidence that it had the purpose of violating her dignity or creating an offensive environment. “The purpose was to remove the Claimant from the workplace, by dismissal, so that DNB could return to work, knowing that they would never have to meet at work. That was his purpose. His purpose was not one of the prohibited purposes in s.26” of the Equality Act 2010. So far as the effect of the dismissal was concerned, it did not affect the working environment and the Tribunal held that, in the circumstances, “it would be an extreme view to hold that this, of itself, violated her dignity. The consequence would be that any dismissal in these general circumstances, ie after an affair has ended, would be sex harassment. There must, in our view, be something more to convert the dismissal into an act of actionable harassment.” However, “the Claimant was dismissed solely because the affair ended in the way it did. The consequence was that DNB found it impossible to work with the Claimant. This is not, in our judgment, harassment within s.26.”

http://tinyurl.com/lkr1308

Sex discrimination – pregnancy discrimination

Sykes v Equality and Human Rights CommissionLondon South Employment Tribunal (Employment Judge Sage; S Maskell, N Shanks)For the Claimant: Melanie Tether, counselFor the Respondent: Aileen McColgan, counsel13 May 2013, 43pp

Joanne Sykes was employed by the EHRC as an executive assistant/parliamentary affairs offi cer from November 2009 until she was made redundant with effect from 31 March 2012. She was initially employed as an agency worker and then, from 1 August 2010, she was employed on a fi xed-term contract. Before this expired, it was extended to

expire on 31 March 2012. She initially worked as executive assistant to the group director regulation, and then was seconded to the role of parliamentary affairs offi cer.

On 17 October 2011, Ms Sykes informed the Respondent that she was pregnant and would be taking maternity leave. On 8 December 2011, however, she was told that her role would no longer exist after 1 April 2012 and that she was redundant after 31 March 2012. She commenced her maternity leave on 1 February 2012. The Respondent claimed that there was no longer a need for an executive assistant to the group director regulation. The Claimant contended that if she had not gone on maternity leave, her role would have been renewed. Among other claims, she contended that she had been treated unfavourably because of her pregnancy and/or her maternity leave.

The Employment Tribunal found as a fact that the Claimant’s role was as an executive assistant and there was no evidence that executive assistants were assigned to any particular director. It also said that there was no evidence that the Claimant’s role in parliamentary affairs was redundant. The EHRC provided no documentation to the Tribunal regarding the Claimant’s selection for redundancy and how this arose. The Tribunal said: “We raised an adverse inference from this.”

The Tribunal rejected the Respondent’s evidence that they dismissed the Claimant for redundancy. Instead, it concluded that the principal reason for dismissal was pregnancy or maternity leave. It also concluded that “the Claimant was treated less favourably because of her pregnancy and/or maternity leave under the Equality Act as we have found that the decision not to renew the Claimant’s contract in March 2012 was infl uenced by her maternity leave.” It added: “The Respondent failed to identify any opportunities going forward for the Claimant as compared to the treatment of other employees on fi xed-term contracts that were not pregnant. We have taken into account that the test is not whether the pregnancy is the sole or principal reason for the treatment but whether it is an effective cause and we have concluded in our fi ndings of fact that it was. We concluded that there was no evidence that the Claimant’s position was redundant and that the Respondent’s approach to the Claimant changed after she informed them of her pregnancy and immediately thereafter no steps were taken to identify the Claimant for opportunities going forward. We conclude that the Respondent has failed to show that it was in no sense whatsoever on that ground, therefore the Claimant’s claim under the Equality Act is well founded.”

http://tinyurl.com/sykes1308



Race discrimination – remedies

Alam v Police Federation of England & WalesNewcastle upon Tyne Employment Tribunal (Employment Judge Malone; AC Town, LE Sutton)For the Claimant: In personFor the Respondent: M Jackson, solicitor9 April 2013; 73pp

This is the latest decision in a long-running claim. In 1993, the Claimant, Mr Alam, who was then a serving police offi cer with the Cleveland Police Force, brought a complaint of direct race discrimination against a chief inspector of the force. The claim was ultimately unsuccessful, but before it was heard, Mr Alam was arrested. Although he maintained that the case against him had been fabricated by police offi cers in order to discredit him, he was convicted, sentenced to imprisonment and dismissed from the police force.

After his release, he made a complaint about the conduct of the police, which led to offi cers from the Cleveland Force being charged with conspiracy to pervert the course of justice and perjury, although the case was dismissed by the trial judge. Subsequently, the Court of Appeal quashed the Claimant’s convictions. He then sued the chief constable for misfeasance in public offi ce and for malicious prosecution, and was awarded general, aggravated and exemplary damages.

The fi rst claim against the Police Federation was of race discrimination and victimisation in respect of the federation’s refusal on three occasions to provide legal assistance to the Claimant to appeal against his conviction. In November 2006, the Tribunal dismissed the complaints relating to 2004, but found that a refusal in March 2005 was unlawful direct discrimination and victimisation, and that a further refusal in January 2006 was an unlawful act of victimisation. The Tribunal made a recommendation “that the Respondent shall, by 15 December 2006, offer to assume responsibility for the future costs of the Claimant’s appeal against his conviction and to liaise with Messrs Brown, Beer, Nixon and Mallon [the Claimant’s solicitors] regarding the conduct of the appeal (but on the basis that the Respondent may make any offer conditional on seeing the legal advice obtained by the said fi rm but not conditional on seeing any evidence).”

The Claimant brought proceedings relating to a failure to comply with this recommendation, and seeking an increase in the award of compensation as a result. In the absence of any authority, the Tribunal directed itself that, in adjudicating on such a claim, “it is not necessary or appropriate for us to consider

whether the Respondent has done a further act of discrimination or victimisation by not complying with the recommendation. We have already made fi ndings of discrimination and victimisation in our decision on liability and those are still the relevant fi ndings for the purpose of any remedy ... The fi rst question which we must consider is whether the Respondent has complied with the recommendation ... If the Respondent has not complied, was there or was there not reasonable justifi cation for the failure to comply? ... If the Respondent had complied with the recommendation, would the adverse effect on the Claimant of the discrimination or victimisation which has been found have been obviated or at least reduced? ... If so, was that factor refl ected in the award of compensation which was made? ... If so, by what amount, if any, should the award of compensation now be increased?”

The Tribunal found that the recommendation had not been initially complied with, and that there was not reasonable justifi cation for this failure. It went on to hold that the expectation of compliance with the recommendation was refl ected in the Tribunal’s award of compensation for injury to feelings, and that without it, the award would have been higher. As funding for the appeal was eventually provided by the Respondent, the Tribunal concluded that the award for injury to feelings should be increased by £2,500.

http://tinyurl.com/alam1308

Religion or belief discrimination – meaning of “religion or belief”

Arya v London Borough of Waltham ForestEast London Hearing Centre (Employment Judge Gilbert)For the Claimant: R SnockenFor the Respondent: G Cullen25 April 2013, 14pp

Suvasis Arya was employed as a primary school teacher at Buxton School for fi ve years, until he was dismissed following a disciplinary hearing, which included allegations that he had sent a text message to his mentor indicating anti-Semitic views.

Mr Arya brought a claim of discrimination on grounds of belief. He claimed that his belief was that “the Jewish religion’s philosophical belief in Jews being ‘God’s chosen people’ is at odds with a meritocratic and multicultural society”, and that this was a protected belief.

Directing herself in accordance in particular with the guidance set out by the EAT in Grainger plc v Nicholson, the Employment Judge held that the


Employment Tribunal summaries [2013] EqLR 859

Claimant’s belief was genuinely held, and that it is “profound and affects his way of life and his view of the world”: “His belief informs his view that there is an effective infl uential Jewish conspiracy which exerts control on major aspects of life. Political institutions, business, investment banks, the media, the legal system, and education in this society are all subject to the conspiracy and control theories he has formed which are based on his professed belief.”

The Judge was also prepared to accept that the Claimant in seeking to assert his belief had met the test of a “certain level of cogency, seriousness, cohesion and importance”.

The Judge concluded, however, that the Claimant’s belief was “not worthy of respect in a democratic society” and was “incompatible with human dignity”. She said that the Claimant’s belief could be characterised as “both racist and anti-Semitic”, stating: “The diffi culty the Claimant has in seeking to rely on his professed belief is that he uses his interpretation of ‘chosen people’ within Judaism to justify conspiracy theories he holds about Jewish control over all major aspects of society.” Therefore, the belief did not qualify for protection under the Equality Act 2010.

http://tinyurl.com/arya1308

Disability discrimination – meaning of “disability”

Wheeldon v Marstons plcBirmingham Employment Tribunal (Employment Judge Lloyd)For the Claimant: Kenderik Horne, counselFor the Respondent: T Jones, solicitor9 May 2013, 10pp

Mr Wheeldon was employed as joint head chef at the Whittington Inn in South Staffordshire. In October 2011, he suffered an allergic reaction to nuts while at work. Between then and the Tribunal hearing in April 2013, he did not return to work because he was concerned that it would put his health at risk. He brought proceedings claiming disability discrimination. He contended that the Respondent had failed to make reasonable adjustments by not offering him work where he would not be at risk.

Whether the Claimant was a disabled person within the meaning of s.6(1) of the Equality Act 2010 was the issue at a pre-hearing review. The Employment Judge said that the critical issue was whether the Claimant’s impairment was “substantial”. The Claimant had been hospitalised for suspected anaphylactic shock some seven times. The

Judge pointed out that no part of the Equality Act 2010 guidance on what is “substantial” “explicitly seems to exclude allergy from disability legislation”. The Judge found that: “Medical evidence, generally and in the specifi c context of the present case, identify allergic reaction to peanuts in their various forms and traces as having the potential for serious medical consequences.”

Concluding that the Claimant is a disabled person under the Equality Act 2010, the Employment Judge said: “The effect on his day-to-day life is, I fi nd, signifi cant. The medical evidence in the round also supports that view and I accept it in assessing his condition as one which is disabling and places him squarely within the s.6(1) EqA defi nition.”

http://tinyurl.com/wheeldon1308

Disability discrimination – meaning of “disability”

Glass v Promotion Line LtdEast London Hearing Centre (Employment Judge Lewis)For the Claimant: In personFor the Respondent: C Baker, counsel24 April 2013, 6pp

Miss Glass brought a disability discrimination claim, relying on the effects of her eczema as a disability. At a pre-hearing review, the Employment Judge heard evidence that the Claimant had severe atopic eczema, which could be easily triggered by environmental factors. It took the Claimant over an hour to apply cream in the morning and then time to wait for that cream to sink in. The Judge said “this amounts to a substantial adverse effect on her day-to-day activities”, which was likely to continue for over a year. He also found that when her condition was particularly bad, it had an impact on the Claimant’s ability to socialise, play sport, even to get out of the house.

Moreover, the Claimant’s uncontested evidence was that, without treatment, she would on occasions be unable to leave the house at all. The Judge concluded that: “The effect on the Claimant without such treatment would amount to a substantial adverse effect on her ability to carry out normal day-to-day activities. The Claimant’s eczema is likely to last for the rest of her life. There is an ongoing likelihood of fl are-ups and the substantial adverse effects are likely to recur within 12 months and on a regular basis over the course of the Claimant’s life. I am therefore satisfi ed that she is a disabled person within the meaning of s.6 of the Equality Act 2010.”

http://tinyurl.com/glass1308



Disability discrimination – discrimination arising from disability – failure to make reasonable adjustments

Meah v BG International Ltd

Reading Employment Tribunal (Employment Judge Chudleigh; RA Watts-Davies, A Mancey)For the Claimant: Sophie Belgrove, counselFor the Respondent: David Craig, counsel16 May 2013, 23pp

Kathryn Meah was employed as principal accountant, ECA regional fi nance. On 30 October 2008, she raised a grievance about her line manager. She was subsequently signed off with what was recorded as “work-related stress” from 4 November 2008 and did not return to work until 6 August 2009. Her grievance was upheld on appeal and it was found that she had been bullied by her line manager. In April 2010, Mrs Meah became pregnant. Following this, she was subjected to harassment by work colleagues, which included calling her “Nelly the elephant” and “Mrs Fatty”. On 29 September 2010, she was signed off work with depression and remained off work until 31 December 2010, after which she was on maternity leave.

In November 2011, the Respondent embarked upon a restructuring exercise it called “project turquoise”, under which employees who were not perceived to fi t in with the Respondent’s future business requirements were asked to leave the organisation with a generous severance package. Mrs Meah was selected for inclusion. The majority of employees who were included within project turquoise were invited without notice to meetings and presented with a draft compromise agreement and given a short period of time to sign it, failing which they were told that they would face dismissal.

A meeting was held with Mrs Meah on 8 December 2011. She was not given notice as to its subject matter. When she arrived at the meeting, she explained that she had experienced a recurrence of her depression, but she was still presented with a draft compromise agreement and told that if she did not sign it by 20 December, her employment would be terminated on 31 December. After Mrs Meah took legal advice, the proposed dismissal was withdrawn. However, on 30 December 2011 she was then signed off work for six months with depression, and was subsequently signed off for a further six months.

The Employment Tribunal upheld her claim of discrimination arising from disability. It noted that, in deciding to dismiss the Claimant in accordance with the project turquoise exercise, the Respondent took

into account that the Claimant had had extended absences which arose from her disability.

The Tribunal also upheld the Claimant’s contention that there had been a failure to make reasonable adjustments. The provision, criterion or practice in question was “giving an employee a compromise agreement and telling that employee that they would be dismissed without any warning and without any consultation”. The Tribunal found that this PCP put the Claimant at a substantial disadvantage in comparison with persons who were not disabled because “to present her with a compromise agreement and to tell her that she would be dismissed without warning and without consultation would be more likely to expose her to a risk of psychological distress.” According to the Tribunal, it would have been a reasonable adjustment to have made the package and the Claimant’s inclusion in project turquoise optional. “That would have alleviated all of the substantial disadvantage. Alternatively, it would have been a reasonable adjustment to have entered into a period of consultation with the Claimant before deciding to dismiss her.”

http://tinyurl.com/meah1308


Index [2013] EqLR 861

Aderemi v London and South Eastern Railway Ltd [2013] EqLR 198 EAT

Alam v Police Federation of England & Wales [2013] EqLR 858 ET

Ali v London Borough of Newham [2013] EqLR 40 Admin CtArnold v St Helens Metropolitan

Borough Council [2013] EqLR 73 ETArya v London Borough of Waltham

Forest [2013] EqLR 858 ETAsociatia ACCEPT v Consiliul National

pentru Combaterea Discriminarii [2013] EqLR 640 CJEU

Begraj v Heer Manak Solicitors [2013] EqLR 432 ET

Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery [2013] EqLR 550 ET

Bijlani v Stewart [2013] EqLR 80 EATBlack v Arriva North East Ltd

[2013] EqLR 558 County CtBloomfi eld v Whitbread Group plc

[2013] EqLR 191 ETBonett v Prospects Services Ltd

[2013] EqLR 432 ETBouabdillah v Commerzbank AG

[2013] EqLR 651 ETBrookes v Licensing Unit Manchester City

Council [2013] EqLR 740 ETBurrell v Micheldever Tyre

Service Ltd [2013] EqLR 695 EAT

Campbell v Public and Commercial Services Union [2013] EqLR 650 ET

Campbell v Thomas Cook Tour Operations Ltd [2013] EqLR 658 County Ct

Carphone Warehouse Ltd v Martin [2013] EqLR 481 EAT

Charles v Tesco Stores Ltd [2013] EqLR 260 CA

Chawla v Hewlett Packard Ltd [2013] EqLR 298 ET

City of Edinburgh Council v Kaur [2013] EqLR 632 CS

Commissioner of Police of the Metropolis v Maxwell [2013] EqLR 680 EAT

Cooke v Kings Security Systems Ltd [2013] EqLR 551 ET

Core Issues Trust v Transport for London [2013] EqLR 508 Admin Ct

Cyprien v Bradford Grammar School [2013] EqLR 596 EAT

Dixon v Royal Mail Group Ltd [2013] EqLR 191 ET

Edwards v Lovell Partnerships Ltd [2013] EqLR 73 ET

European Commission v Hungary [2013] EqLR 62 CJEU

Eweida v United Kingdom [2013] EqLR 264 ECHR

Foreman v Oasis Taxis Mansfi eld Ltd [2013] EqLR 552 ET

Foster v Cardiff University [2013] EqLR 718 EAT

Fox v Bassetlaw District Council [2013] EqLR 219 EAT

Fox Cross Claimants v Glasgow City Council [2013] EqLR 460 EAT

Francis v London Probation Trust [2013] EqLR 299 ET

Fraser v University & College Union [2013] EqLR 550 ET

Garrard v Governing Body of the University of London [2013] EqLR 746 County Ct

Glass v Promotion Line Ltd [2013] EqLR 859 ET

GMB Claimants v Glasgow City Council [2013] EqLR 460 EAT

Hair Division Ltd v Macmillan [2013] EqLR 18 EAT

Haq v Audit Commission [2013] EqLR 130 CA

Hammond v Abbey School [2013] EqLR 740 ET

Hawkins v Universal Utilities Ltd t/a Unicom [2013] EqLR 651 ET

Heafi eld v Times Newspaper Ltd [2013] EqLR 345 EAT

HK Danmark, acting on behalf of Ring v Dansk almennyttigt Boligselskab [2013] EqLR 528 CJEU

HK Danmark, acting on behalf of Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S [2013] EqLR 528 CJEU

HM Land Registry v McGlue [2013] EqLR 701 EAT

Homer v Chief Constable of West Yorkshire Police (No.2) [2013] EqLR 295 ET

Horváth v Hungary [2013] EqLR 835 ECHR

IPC Media Ltd v Millar [2013] EqLR 710 EATIslam v Abertawe Bro Morgannwg

University Local Health Board [2013] EqLR 189 ET

Jamieson v Governing Body of Chorlton High School [2013] EqLR 429 ET

Jennings v Barts and the London NHS Trust [2013] EqLR 326 EAT

Kapenova v Department of Health [2013] EqLR 188 ET

Kenny v Minister for Justice, Equality and Law Reform [2013] EqLR 380 CJEU

Kerr v O’Hara Brothers Surfacing Ltd [2013] EqLR 296 ET

Kitka v Manrose Quality Ventilation Ltd [2013] EqLR 552 ET

Kpakio v Virgin Atlantic Airways Ltd [2013] EqLR 552 ET

Kulkarni v NHS Education Scotland [2013] EqLR 34 EAT

Lefebvre v British Airways plc [2013] EqLR 75 ET

Leitch v Heart of England Properties Ltd [2013] EqLR 737 ET

LKR v SP Ltd [2013] EqLR 856 ETLockwood v Department for

Work and Pensions [2013] EqLR 206 EATLondon Borough of Hackney v

Sivanandan [2013] EqLR 249 CALondon Borough of Hillingdon v

Bailey [2013] EqLR 729 EAT

London School of Economics and Political Science v Lindsay [2013] EqLR 10 EAT

Longson v Cafcass [2013] EqLR 649 ET

McAuliffe v Department of Energy and Climate Change [2013] EqLR 738 ET

McCracken v Northern Health & Social Care Trust [2013] EqLR 553 IT

McGrady v College of North West London [2013] EqLR 737 ET

Mba v Mayor and Burgesses of the London Borough of Merton [2013] EqLR 209 EAT

Meah v BG International Ltd [2013] EqLR 860 ET

Ministry of Defence v Kemeh [2013] EqLR 605 EAT

MM v Secretary of State for Work and Pensions [2013] EqLR 754 Upper Tribunal

Nasser v Alam Attic Ltd t/a Glorydale Merchant Services [2013] EqLR 650 ET

Naveed v Aslam [2013] EqLR 189 ETNcheke v Her Majesty’s

Courts & Tribunals Service [2013] EqLR 649 ET

Nikiel-Wolski v Burton’s Foods Ltd [2013] EqLR 192 ET

Nolan v CD Bramall Dealership Ltd t/a Evans Halshaw Motorhouse Worksop [2013] EqLR 295 ET

North v Dumfries and Galloway Council [2013] EqLR 817 UKSC

Nottingham City Transport Ltd v Harvey [2013] EqLR 4 EAT

Novak v Phones 4U Ltd [2013] EqLR 349 EAT

Odar v Baxter Deutschland GmbH [2013] EqLR 167 CJEU

Okoro v Taylor Woodrow Construction Ltd [2013] EqLR 147 CA

Olusoga v Homerton University Hospital NHS Trust [2013] EqLR 190 ET

O’Neill v Barnado’s [2013] EqLR 297 ITOnu v Akwiwu [2013] EqLR 577 EAT

P v Governing Body of a Primary School [2013] EqLR 666 Upper Tribunal

Parents of C v Trustees of Stanbridge Earls School [2013] EqLR 304 FTT

Pegg v London Borough of Camden [2013] EqLR 75 ET

Price v Action-Tec Services Ltd t/a Associated Telecom Solutions [2013] EqLR 429 ET

R (on the application of Bracking) v Secretary of State for Work and Pensions [2013] EqLR 621 Admin Ct

R (on the application of Coleman) v London Borough of Barnet Council [2013] EqLR 223 Admin Ct

R (on the application of Dowsett) v Secretary of State for Justice [2013] EqLR 491 Admin Ct

R (on the application of RB) v Devon County Council [2013] EqLR 113 Admin Ct

Index

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[2013] EqLR 862 Index

R (on the application of South WestCare Homes Ltd) v Devon County Council [2013] EqLR 50 Admin Ct

R (on the application of Zacchaeus 2000 Trust) v Secretary of State for Work and Pensions [2013] EqLR 609 Admin Ct

Rai v Al Mutari [2013] EqLR 188 ETRedcar and Cleveland Primary Care

Trust v Lonsdale [2013] EqLR 791 EATRider v Leeds City Council

[2013] EqLR 98 EATRiežniece v Zemkopibas ministrija

[2013] EqLR 826 CJEURoberts v Cash Zone (Camberley) Ltd

[2013] EqLR 648 ETRowntree v Knauf UK GmbH

[2013] EqLR 431 ETRowstock Ltd v Jessemey

[2013] EqLR 438 EATRyb v Royal Bank of Scotland

Group plc [2013] EqLR 74 ETRyglewicz v Hanson Quarry Products

Europe Ltd [2013] EqLR 432 ET

Seldon v Clarkson Wright and Jakes (No.2) [2013] EqLR 739 ET

Shaikh v Tribal Education Ltd [2013] EqLR 431 ET

Sheridan v Stevens [2013] EqLR 551 ETSingh v Ram Estate Agent [2013] EqLR 74 ETSmith v Rees [2013] EqLR 74 ETSobhi v Commissioner of Police of the

Metropolis [2013] EqLR 785 EATSykes v Equality and Human Rights

Commission [2013] EqLR 857 ET

Taiwo v Olaigbe [2013] EqLR 446 EATTantum v Travers Smith Braithwaite

Services [2013] EqLR 736 ETTemple v Future Arts Ltd [2013] EqLR 736 ET

Uddin v General Medical Council [2013] EqLR 354 EAT

Unison Claimants v Glasgow City Council [2013] EqLR 460 EAT

Valdez v London Borough of Camden [2013] EqLR 298 ET

Walker v Innospec Ltd [2013] EqLR 72 ETWalker v Sita Information Networking

Computing Ltd [2013] EqLR 476 EATWebster v National Physical Laboratory

[2013] EqLR 652 ET

Wheeldon v Marstons plc [2013] EqLR 859 ET

White v University Hospitals of Leicester NHS Trust [2013] EqLR 296 ET

Wierzbinska v Glinwell Marketing Ltd [2013] EqLR 430 ET

Williams v Ministry of Defence [2013] EqLR 27 EAT

Williams v Ministry of Defence [2013] EqLR 856 ET

Woodhouse v West North West Homes Leeds Ltd [2013] EqLR 796 EAT

Woods v Pasab Ltd t/a Jhoots Pharmacy [2013] EqLR 124 CA

X v Austria [2013] EqLR 396 ECHRX v Mid-Sussex Citizens Advice

Bureau [2013] EqLR 154 UKSC

ZH v Commissioner of Police for the Metropolis [2013] EqLR 363 CA

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