Newham Sixth Form College v Sanders
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE LAWS
- LORD JUSTICE TOMLINSON
- LORD JUSTICE BRIGGS
Areas of Law
- Employment Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The Court of Appeal (Laws LJ, with Tomlinson LJ and Briggs LJ agreeing) heard Ms Sanders’s appeal from the Employment Appeal Tribunal’s decision setting aside the Employment Tribunal’s finding of disability discrimination and its remedies award. Ms Sanders, an A‑level tutor at a sixth form college, suffered from depression, and argued the college failed to make reasonable adjustments for two PCPs: arriving at 8:45 am and telephoning if late. Applying Environment Agency v Rowan and RBS v Ashton, Laws LJ held the ET failed to identify and analyse the nature and extent of the substantial disadvantage and the respondent’s knowledge, and wrongly criticised the employer’s mindset rather than evaluating the objective reasonableness of proposed adjustments. The appeal was dismissed, and the matter remitted to a differently constituted ET. A respondent’s notice about remedies was moot, and a protective costs order was refused.
J U D G M E N T
LORD JUSTICE LAWS: This is an appeal with permission granted by Christopher Clarke LJ on 19th December 2013 against a decision of the Employment Appeal Tribunal presided over by His Honour Judge McMullen QC of 2nd July 2013. By that decision the EAT set aside the finding of the Employment Tribunal (the "ET") to the effect that the respondent employer had discriminated against the appellant in breach of section 4A of the Disability Discrimination Act 1995 ("DDA") by failing to make reasonable adjustments during her employment in the latter part of 2007. The ET's judgment, to which I will refer as "the liability judgment", was sent to the parties on 11th September 2012. The EAT also set aside the ET's subsequent remedies judgment by which it made an award of £216,108.92 to the appellant.
The respondents are a sixth form college with over 350 staff and some 3,000 students. The appellant joined the college on 2nd July 2007, when she was about 25, as an A-level tutor. Her working week was some 36 hours: ten hours tutoring, 16 hours developing the college's tutorial programme, and ten hours preparation, marking and administration. She was required to attend at the college premises at 8.45 am during term, when the students were there, and at 9 am at other times. There was a procedure to be followed if an employee was going to be late: that was to telephone the college to give warning of the fact.
The appellant's employment did not survive the probationary period. She was dismissed on 20th December 2007, with effect as I understand it from 28th February 2008, but was not required to work out her notice period.
The appellant had suffered from a depressive illness since 2005 and it was at length conceded that she was disabled by reason of mental impairment. Section 3A(2) of the DDA 1995 provides:
"For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person."
Section 4A provides in part:
"(1) Where -
(a) a provision, criterion or practice applied by or on behalf of an employer ... places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that