Appeal No. EAT/1393/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 March 2001

Before
MISS RECORDER SLADE QC
LORD DAVIES OF COITY CBE
MRS R A VICKERS

MR R J DEARBORN 	APPELLANT

FIRST MANCHESTER LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised 

	APPEARANCES

For the Appellant	Mr G Crute
Representative
Tyn Lon Farm
Mynytho
Pwllheli
Gwynedd
LL53 7RF	

MISS RECORDER SLADE QC

1	This is the preliminary hearing of an appeal against the dismissal of complaints by Mr Dearborn of unfair dismissal and discrimination under the Disability Discrimination Act.  Those complaints arose out of the dismissal of Mr Dearborn from his position as a bus driver, the dismissal taking effect on 14 September 1999.  Mr Crute has amplified the original, rather short grounds of appeal by a Skeleton Argument which we will turn to in due course.  

2	The facts, briefly stated, are these: the Appellant was employed as a bus driver by the Respondents.  The Respondents at the Employment Tribunal admitted that the Appellant is a disabled person, he suffers from depression.  It was also admitted before the Employment Tribunal that he was treated less favourably within the meaning of the Disability Discrimination Act.  However it was contended in relation to that, that his dismissal was justified and that there were no reasonable adjustments which could have been made in his case.  

3	Dealing with the events leading up to the Applicant’s dismissal by reason of his disability, the Appellant had a poor attendance record.  He had, in fact, been dismissed twice before the event complained of and had been reinstated on appeal.  On the second occasion, he had been given a final written warning in substitution for the sanction of dismissal.  

4	On 24 April 1999 the Appellant was involved in an altercation with another driver and one of the Appellant’s cab windows was broken, and from that date he was absent due to depression.  The Appellant was invited to a meeting with the Respondents to enable them to decide whether disciplinary or any other action should properly be taken in the light of what emerged during the course of the meeting on 11 May 1999.  As a result of what they were told during the course of the meeting in May, it was decided to invoke the disciplinary procedure.  Pausing there, it is apparent that the Respondents had a single procedure to deal with employees, namely the disciplinary procedure.  The Tribunal observed at paragraph 18(b) of their Decision that they considered:
“…….that it would be preferable if the respondent had a separate attendance procedure, which was contained in a separate document to the disciplinary procedure, we do not find any unfairness arose in the present case by reason of the respondent adopting a single procedure.”

A doctor, Dr Farrand, examined the Appellant on 27 May 1999.  He reported to a Mr MacNeill that the Appellant was medically unfit to drive a passenger carrying vehicle for the foreseeable future.  

5	On 21 June 1999, a disciplinary hearing was held and the Appellant accepted that he was unable to return to work as a driver because he was still taking medication.  At that disciplinary hearing a decision was taken to dismiss the Appellant.  In reaching the decision the decision-maker took into account the fact that the Appellant was unable to drive and would be unable to drive for the foreseeable future.  

6	Mr Dearborn appealed against the decision to dismiss and the first appeal hearing took place on 7 July 1999.  That appeal was conducted by a Mr Lee.  Mr Lee decided that the Appellant should be referred back to the company’s medical officer and the Appellant thereafter saw a Dr Beastall on 1 and 9 September 1999.  Dr Beastall provided a report for Mr Lee which is dated 9 September.  When preparing his report, Dr Beastall also had in his possession a report from a Dr Reed, dated 7 September 1999.  Dr Reed was the consultant treating psychiatrist.

7	The appeal hearing reconvened on 10 August 1999 and the appeal against the decision to dismiss was dismissed.  Mr Lee had checked at his own depot and at other depots as to whether there was any other suitable alternative employment that could be offered to the Appellant.  No alternative employment was available.  

8	Thereafter, and somewhat unusually, there was a second appeal against the decision to dismiss.  That was heard by Mr Mason and took place on 14 September 1999.  The Applicant had representatives with him.  Mr Mason had before him the reports of Dr Farrand and also of Dr Beastall, and the Applicant, the Appellant, before us, produced a copy of his psychiatrist’s report, namely the report of Dr Reed of 7 September 1999.  

9	Again, as Mr Lee had done, Mr Mason checked if any suitable alternative work was available for the Appellant to perform at any of the depots, but his enquiries revealed that no such work was available.  Having regard to the medical evidence before him, which confirmed that the Appellant was not fit to drive a bus, because he was not symptom-free and stable, and that he had to be both symptom-free and stable for a period of six months before he was entitled to hold the appropriate licence, the decision was taken to dismiss the appeal.

10	Now, pausing there, the point was taken by Mr Crute that the Appellant did not lose his licence in this period, but plainly on the medical evidence before Mr Mason, the Appellant was not fit to drive and moreover would not be fit to drive for some time in the future.  That is the basis upon which Mr Mason proceeded so the appeal was again dismissed.  

11	The Tribunal found that the reason for the Appellant’s dismissal was that he had been absent for a substantial period of time and that his medical condition prevented him from performing the duties required of him, under his contract of employment  Those two reasons were interlinked in that they originated from the same cause, namely his depression which had a double effect of rendering him unable to perform the duties of a bus driver, and also, caused him to be absent from work.  

12	The Tribunal then concluded, having considered the evidence, that the dismissal was fair in all the circumstances.  They  went on to consider the question of whether the complaint under the Disability Discrimination Act  had been made out and, having recorded that there was an acceptance that the Appellant was a disabled person, and that he was treated less favourably by reason of the dismissal, the Tribunal went on to consider whether there was a duty to make reasonable adjustments and whether the Respondents had taken such steps as were reasonable in the circumstances and, if not, whether the failure to make such adjustments was justified.  

13	The Tribunal found at paragraph 7 of its Decision that:

“ the only adjustment which would have prevented the applicant from being placed at a disadvantage would have involved a transfer to alternative duties.”

and they made a further finding in the same paragraph:
“In the present case we are satisfied, having listened to the respondent’s witnesses that there were no suitable alternative posts which were available either with or without reasonable retraining.  All 3 managers investigated whether any posts were available and they each ascertained that none were available.”

14	They then went on to consider a large number of further contentions advanced on behalf of the Appellant before the Tribunal as to possibilities which were suggested ought to have been considered, and they considered and dealt with them.  Having considered those matters, they held at paragraph 14 that they were:
“satisfied that the respondent was not in breach of its duty to make reasonable adjustments.”

15	They then went on to consider whether when, in dismissing the Appellant, the Respondents were in breach of the Disability Discrimination Act.  The Tribunal considered the question of whether the dismissal had been justified by the Respondents.  The Tribunal referred to the fact that the Respondents run a public service operation and that the public expects that buses will run to their timetable, and if they do not, complaints are made.  They referred to the absences of the Appellant and, also the concern of the Respondents relating to those. 

16	The Tribunal concluded that the reasons for the Applicant’s dismissal which, as we have said, were the dual reasons of absence and incapability, by reason of his medical condition, from fulfilling his functions.  The Tribunal having regard to those reasons for the dismissal, they considered them to be both material to the circumstances of the case and substantial.  

17	They then went on to consider the balancing exercise between the interests of the Appellant and the interests of the Respondents, and having regard to the competing interests, the Tribunal were satisfied that the treatment of the Appellant was justified and they therefore dismissed the complaints under the Disability Discrimination Act.

18	Turning now to the grounds of appeal advanced before us which are set out in the Skeleton Argument, dealing first with the appeal against the finding of unfair dismissal.  It is contended that the finding of the Tribunal that at the time of his dismissal, the Applicant had been absent for a period of twenty weeks, was an error on the part of the Tribunal, in that by the time of the first disciplinary meeting, that of 21 June 1999, the Appellant had been absent for eight complete weeks.  As is apparent from the summary of facts found by the Tribunal, this was a case in which there were two appeals which followed on after the decision to dismiss at which the original decision was reconsidered.  
19	The second of those appeals took place on 14 September 1999, and we can see no error in the approach of the Employment Tribunal as to the observation they made as to the period of the Appellant’s absence before the final decision to dismiss was taken.  As an illustration of the fact that the appeals were indeed re-hearings, at which the original decision could have been overturned, one only has to look at the Appellant’s own history with these Respondents in that twice he had been dismissed before and the decision to dismiss had been overturned on appeal.  

20	Secondly, it is said on behalf of Mr Dearborn, that this Tribunal erred in categorising the reason for Mr Dearborn’s dismissal as capability, rather than some other substantial reason.  Mr Crute, on behalf of Mr Dearborn, relies upon the Court of Appeal case Wilson v The Post Office [2000] IRLR 834.  That was a case in which, as the Lord Justice Buxton held at page 825, paragraph 17, it was quite clear that the reason the employer had, or thought he had, for dismissing Mr Wilson was that his attendance record had not met the requirements of the agreement.  In that case the original Employment Tribunal had categorised the case as one of capability.  That decision had been overturned and the Court of Appeal held, rightly overturned by the Employment Appeal Tribunal since the reason for dismissal should have been categorised as some other substantial reason for dismissal.  The Court of Appeal in the Wilson case, held that that failure to categorise the reason for dismissal correctly was rightly characterised as an error of law.  

21	On its facts this case is very far from the Wilson case. In this case the reason for the dismissal was found by the Tribunal in paragraph 17 of its Reasons as being twofold:
“ that he had been absent for a substantial period of time and his medical condition prevented him from performing the duties required of him under his contract of employment”. 
Bearing in mind the way in which the dismissal was considered, the fact that further medical reports were requested in the course of the appeal procedure, and the approach adopted as found by the Employment Tribunal, we can see no ground for alleging that the Tribunal wrongly categorised this dismissal as being for a reason of capability.  In our view, the Tribunal, on the evidence before it, was plainly entitled to conclude that the reason fell within that categorisation.  

22	On behalf of Mr Dearborn, it is further contended that no reasonable Tribunal would have concluded that the dismissal was fair in all the circumstances.  The circumstances relied upon by Mr Crute include the observation in Dr Reed’s report that in his opinion the Appellant had minor symptomology which could have been improved if the threat to his job were removed, or could be improved within a relatively short period of time.  

23	Further, it is contended, that the decision that the dismissal was a fair one was perverse in the light of the fact that the Respondents had a provision for six months’ sick pay.  In our view, the decision of the Tribunal to hold the dismissal to be a fair dismissal, cannot be characterised as perverse.  The Tribunal had considered the points made to us by Mr Crute, and came to its conclusion on the totality of the evidence before it, and it was plainly entitled to come to such a conclusion. Accordingly, we dismiss the appeal against the finding that there had been no unfair dismissal.  

24	Moving now to the appeal against the dismissal of the claim under the Disability Discrimination Act.  It is asserted, on behalf of the Appellant, that the justification raised on behalf of the Respondents for not retaining the Appellant, was ex post facto rationalisation, and accordingly, should not have been treated as justification by the Tribunal.  It is said that it was at a very late stage that the Respondents recognised that the Appellant was a disabled person, and that when attempts were made to seek alternative employment for him, those were not recognised by the Respondents as being part of an exercise in trying to make reasonable adjustments for him.  In addition, for those reasons, it is said that the Respondents cannot now rely on those matters as justifying the treatment of Mr Dearborn within the scheme of the Disability Discrimination Act.  

25	In our view, those arguments do not reveal any arguable point of law.  The Respondents acted as they did because they recognised that the Appellant was suffering from depression.  In our view it is immaterial whether that depression was labelled as a disability in the circumstances of this case.  They made efforts to find alternative employment for the Appellant. Again in our view, it is immaterial in the circumstances of this case that they did not consider, at that time, that they were embarking on an exercise of making or seeking reasonable adjustments for the Appellant.

26	Further, as to the substance of the adjustments made, Mr Crute had advanced a number of suggestions for adjustments to the Respondents, all of which the Tribunal considered, and as to which the Tribunal concluded in paragraph 7 of their Decision
“ the only adjustment which would have prevented the applicant from being placed at a disadvantage would have involved a transfer to alternative duties”
and as we have referred to earlier in this judgment, they were satisfied that there were no suitable alternative posts which were available, with or without re-training.  

27	They, having considered the arguments advanced on behalf of the Appellant, as to adjustments, reached the conclusion that we have already referred to, that no further adjustments, or further steps could or should have been taken. They then considered whether the treatment of the Appellant as a disabled person was justified, and they concluded, having heard the evidence, that it was.  

28	In those circumstances the appeal against the finding of dismissal of the claim of disability discrimination fails, and is dismissed.  Accordingly, we dismiss the appeal.