Appeal No. EAT/1289/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 June 2001

Before
HIS HONOUR JUDGE J ALTMAN
MR D J HODGKINS CB
MRS M T PROSSER

ABBEY NATIONAL PLC	APPELLANT

MRS L BARTLETT	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P K THOMPSON
(Advocate)
Instructed by:
Dubb Lupton Alsop	

JUDGE ALTMAN

1.	This is an appeal from the decision of the Employment Tribunal sitting in Leeds on days in July and September 1999.  By decision dated 1 September 1999 and promulgated on 21 September 1999 the Tribunal held that the Respondent had been unlawfully discriminated against contrary to the provisions of the Disability Discrimination Act 1995.  The following February there was a remedies hearing.

2.	The claim arose after the Respondent, during the course of her employment with the Appellants, developed a Right Carpal Tunnel Syndrome following which she was absent from work.  The Tribunal held that from the autumn of 1997 she was unable to work properly and in particular could no longer use the keyboard or even hold a pen without severe pain.

3.	The Respondent was unable to work and, arising from her loss of employment as a result on 12 February 1999, the Respondent argued that such termination of her employment constituted unlawful discrimination due to her disability.  The issue of disability was recognised and was not a matter of contention before the Employment Tribunal but there was considerable evidence and discussion about whether or not the Appellants had complied with their duty under Section 6 of the Disability Discrimination Act 1995 to make what are loosely called reasonable adjustments.  

4.	In the context of this case this really amounted to the question as to whether they had offered reasonable alternative employment.  The Respondent has not appeared today but we have read a letter from her Representative which deals essentially with the issues of fact that were before the Employment Tribunal.
5.	There has been some confusion, during the course of these proceedings, as to the stage at which evidence was placed before the Tribunal.  In particular, this appeal was adjourned at an earlier stage because the argument was being presented on behalf of the Appellant that once the Employment Tribunal had found that a reasonable adjustment had been made by virtue of an offer of other employment by the Appellants, then there was no obligation upon them, in relation to their duty under Section 6, to consider or offer other alternative employment.  In that context, Mr Thompson on behalf of the Appellants, has argued that a Tribunal would have to take into account, in evaluating that, the response of the Respondent which included in this case, he says, the statement that she would not return to work in any event until she had recovered.

6.	It was unclear whether that point had been taken below and so the Chairman was asked to provide his notes of evidence.  We are greatly indebted to him for the provision of his notes although they demonstrate some anomalies.  The original notes sent to the Employment Appeal Tribunal, some considerable time ago and dated under the signature of the Chairman, 6 June 2000 cover some 3 pages.  For reasons which we do not understand, the copy that I and the members have assert the date of the proceedings as being 26 July 1999 whereas that of the Appellants’ representative Mr Thompson asserts on the top of the self same record of their notes of evidence, 25 February 2000.  However, it appears, because the Appellant’s representative is there described as being Mr Broughton, that that document purports to be notes of evidence of the remedies hearing, although the substance of the notes do not deal specifically with remedy at all, and indeed a postscript to the notes, which has been very helpful, has pointed out that at the 25 February 2000 hearing a Mr Carter, the Health and Safety Manager of the Appellants, gave evidence.

7.	The Chairman said in his postscript to his notes of evidence that the evidence of Mr Carter was found to be relevant to the Tribunal’s decision on remedy but had not been available to the Tribunal during the hearing relating to liability.  After a further request from this Tribunal further notes were provided dated 26 July 1999 and covering a substantially longer area of evidence which does not, so far as we can judge, contain within it the earlier notes of evidence to which I have referred; it ends with a note of the remedy hearing of 25 February 2000 again which contains notes of evidence relating to remedy different to the other two sets of notes.

8.	Accordingly, on the face of it we have three sets of notes in relation to two hearings, one on liability and one on remedy.  But usefully, the evidence of Mr Carter was noted and indeed referred to in the Extended Reasons of the Tribunal in relation to the remedy matter of 25 February 2000 in the following terms:

“The Tribunal also accepted evidence from Mr Carter, the Appellant’s Occupational Health and Safety Manager, that the position was, and still is that voice activated screen technology is not a satisfactory solution to the difficulty suffered by the (Respondent), nor is any such technology appropriate for those reasons such as inefficiency and confidentiality.  The Tribunal accepted Mr Carter’s view that no adjustment was possible or appropriate at the time of her dismissal, nor would the position be any different at today’s date, and that if (the Respondent) had been fit for work in 1999, she would certainly have been dismissed before then.”

9.	We turn now to the main decision of the Employment Tribunal which we have had to consider and the Employment Tribunal purported to deal with the Disability Discrimination Act responsibilities in 2 parts.  Of course, Section 4 of the Disability Discrimination Act makes it unlawful for an employer to discriminate against the disabled person and Section 5(1) provides as follows:

“For the purposes of this part, an employer discriminates against a disabled person if  

(a)… for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others …

(b)	and he cannot show that the treatment in question is justified.”

Once therefore disparate treatment is established the question of justification arises in a general way.

10.	Sub section 3 provides some assistance in analysing that issue as follows:

“Subject to sub section 5, for the purposes of sub section 1, treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.”  

Accordingly in order to show justification for, in this case, dismissal, the reason for it must be shown to be both material and substantial.  In addition to that, Section 6 provides a duty to make adjustments and deals in some detail with the sort of steps and guidance that have to be considered in order to do so.  However, once that failure to make adjustments is established, one then has to return to Section 5 which provides, in sub section 4, that for the purposes of unlawful discrimination resulting from a failure to make reasonable adjustments, failure to comply with that Section 6 duty is justified if but only if the reason for the failure is both material to the circumstances of a particular case and substantial.

11.	In paragraph 36 of their decision the Employment Tribunal dealt with the issue of justification as follows:

 “ … the less favourable treatment could not be justified.  The decision was one which related to the individual circumstances of this case and although the factors which influenced the respondent to dismiss were relevant factors, the Tribunal found that on balance they should have give the applicant more time to recover, taking into account that technological advancements were moving quickly and that the practical and financial difficulties to the respondent caused by her absence were not so fundamental to justify dismissal in November 1998.  There was no immediate drain of resources as she was not being paid at the time of the dismissal and, although there was some short staffing this was not serious enough to justify dismissal.”

12.	The point made by Mr Thompson is that the finding of fact that the employer should have given the (Respondent) more time to recover and should have done so taking into account that technological advancements were moving quickly, was not founded on evidence before the Tribunal but was a judgment of the Tribunal itself without that having been explored.  That this is the case, Mr Thompson argues, is underlined by the fact that when at the remedies hearing the Employment Tribunal did receive evidence about that matter it was to the contrary; the Tribunal very fairly expressed their acceptance of it, and the Chairman in his addendum to his notes has very helpfully and very fairly drawn attention to the fact that, in effect, the evidence received after the hearing may be held to undermine the conclusion of fact set out in paragraph 36.

13.	It does appear to us therefore that there was not before the Tribunal evidence at the time to entitle the Tribunal to come to the finding which they did in paragraph 36.  In addition, that in itself it seems to us is sufficient for us to conclude that there was an error of law on the part of the Tribunal and we have not gone on to consider the subsidiary argument as to the factors which the Tribunal should have taken into account in addition to those set out in paragraph 36.

14.	This matter is to be further litigated once again, and so as not unnecessarily to provide any sort of framework for the fresh hearing which must now inevitably take place, we would not wish to analyse in detail any view as to factors in a particular case which a Tribunal ought or ought not to take into account in accordance with the provisions of the Act.

15.	When the Employment Tribunal came to deal with reasonable adjustment under Section 6 they made their finding in paragraphs 37 and 38 as follows:

“In relation to the duty to make reasonable adjustments relating to the (Appellant’s) offer of alternative employment, the offer of alternative employment was a reasonable adjustment.  However, the respondent should have considered and put to the (Respondent) other alternatives taking into account the seriousness of the injury to her hand.  Factors which were not obviously given enough consideration were the (Respondent’s) significant length of service and the fact that she had always been a good and skilled employee.

The Tribunal decided that the (Appellant’s) failure under section 6 was not justified, for the same reasons as those relating to the failure to justify the less favourable treatment under section 5.”

16.	Mr Thompson points out that justification under Section 6 is of course a different matter to that under Section 5(3) and 5(1)(d) because it relates to a justification of not making adjustments and he points out that the Tribunal had already found in paragraph 32:

“The Tribunal did find that the offer of alternative employment as a meeter and greeter was a reasonable adjustment within the terms of section 6.”

Accordingly the matters of justification in this case only arise it seems to us if there is a failure to comply with a Section 6 duty.  There may be interesting arguments of law as to whether one offer of a reasonable alternative job is compliance, and what is the meaning of the word “reasonable” in the context of the facts of this case, but it does seem to us that the Employment Tribunal erred in identifying the question of justification as effectively hinging on the same consideration between the two sections, and in apparently, on the face of it, failing to take into account their own finding that a reasonable adjustment had been made.  But these are arguments for the Employment Tribunal and whilst we are grateful to Mr Thompson for raising them, we express no concluded view, and they will depend to an extent on the evidence.

17.	We are mindful of the fact that this very experienced Tribunal was considering the Disability Discrimination Act now some considerable time ago in relation to the history of the development of the law under that Act, and that Tribunals and the Employment Appeal Tribunal have had to do their best with what is generally recognised as legislation that is in many respects difficult and impenetrable.

18.	But nonetheless we have come to the conclusion that the Employment Tribunal for the reasons we have set out did err in law and this appeal must be allowed.  We have not formed any judgment as to the overall merits of the case of the Appellants or of the Respondent, nor have we formed any judgments on the facts of the case.  It is simply that, on the face of the decision of the Employment Tribunal, they do appear to have erred in law in their approach to the facts in the case.  That, coupled with the matter that the Chairman drew to our attention, in relation to later evidence that may be said to have undermined one of their own findings, leads us to conclude that the interests of justice do now require that the matter be heard afresh before a differently constituted Tribunal and that is our Order.