Appeal No.	 EAT/83/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 January 2001

Before
HIS HONOUR JUDGE COLLINS CBE
LORD DAVIES OF COITY CBE
MR P A L PARKER CBE

CONOCO LTD	APPELLANTS

MR KEVAN BOOTH	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR PAUL WILSON
(Employed Barrister)
Instructed By:
Messrs Hammond Suddard
Solicitors
2 Park Lane
Leeds
LS3 1ES	
For the Respondent	MR JAMES TAYLER
(of Counsel)
Instructed By:
Messrs Bridge McFarland
Solicitors
19 South Street
Mary's Gate
Grimsby
South Humberside DN31 1JE	

JUDGE COLLINS CBE:

1	This is an appeal from the decision of an employment tribunal sitting at Hull, whose extended reasons were promulgated on 24 November 1999, after a three-day hearing which had taken place earlier that month.  It was a claim by the respondent that he had been unfairly dismissed and that amounted to discrimination under the Disability Discrimination Act 1995.  

2	The tribunal held that he had been discriminated against and that his dismissal could not be justified and that the employers had not shown that they had made reasonable adjustments to compensate for his disability.

3	The respondent was employed by the appellants as a process operator working in a coking plant at their oil refinery from 4 January 1988 until 31 March 1999.  The length of his employment is something which is plainly not without significance.  He was dismissed for what was described in the respondents’ Notice of Appearance as “capability, ill-health”.

4	There had been a fire at the respondents’ place of work on 23 December 1996.  He was not badly burned, although he was singed, but subsequently he developed psychological symptoms and at some time during 1998 was diagnosed by his own doctor as suffering from post traumatic stress disorder.  That diagnosis was confirmed by the appellants’ psychiatrist in January 1999.  He advised that, because of the respondent’s condition, he should not be employed in safety critical work which meant effectively that he was unable to work on the refinery site.  

5	In February 1999 the appellants’ Human Resources Adviser wrote to all departmental heads in relation to alternative posts and received, according to the tribunal’s reasons, two responses.  

6	A meeting took place on 18 February 1999, although the tribunal points out that the respondent was not allowed to have a representative accompany him at that meeting.  The tribunal also took the view that no real effort was made to find alternative work for the respondent.  Although it is not specifically mentioned in the reasons of the tribunal, we note that at paragraph 3 (i) one job that might have become available later in the year was a position in production analysis.  That is something which Mr Booth would have had to be assessed for because it involves special numeracy and aptitude.  There is no suggestion that any assessment was made or any consideration given to the possibility of any training to provide Mr Booth with what he required to do that job but we say no more about that since it forms no part of the reasons of the tribunal.

7	There was a further meeting on 5 March 1999.  The tribunal noted that two posts were put forward for consideration, but both of them were considerably higher than the respondent’s role in the appellants’ hierarchy.  It is quite clear that the tribunal found that these were not serious attempts to put forward reasonable alternative employment.

8	There were certain possibilities put forward by the respondent at the hearing.  He said there was no discussion of the possibility of his working at the appellants’ tank farm, although it was not suggested that there was any specific post available there for him.  On 6 March a letter was sent dismissing the respondent on the ground of his incapacity.  He appealed against that dismissal and his appeal was rejected.

9	The hearing before the tribunal was essentially concerned with factual matters as to whether or not there was alternative employment, either available or available in the acceptably foreseeable future, which the respondent was able to do.  The tribunal formed an extremely unfavourable view of the approach of the appellants.  They encapsulate that view at paragraph 10 of their reasons:

“Contrary to the obligation to seek to make adjustments to allow the applicant to continue in that employment, the respondent presented him with a number of illusory options to point him in the direction of medical retirement, which was their preferred option.”

10	To reach that conclusion the tribunal had considered certain facts in paragraphs 7 and 8 of the reasons and, to summarise, the tribunal expressed the view that the employers had to provide a good deal of specific information about various aspects of their organisation in order to show that there were no acceptable prospects, either immediately or in the reasonably acceptable future, for alternative employment which the respondent was able to do or could be trained to do.  They took the view that the appellants had excluded themselves from giving an adequate answer to those questions because of the excessively narrow view which they had taken of their responsibilities under the Code of Guidance.  Underlying the whole of the tribunal’s reasoning, as I have already indicated, was a view that the appellants really did not want to keep the respondent in their employment and had no real wish to take any steps to retain him in their employment.

11	However, that is hardly an end of the matter.  The motivation of the appellants may be suspect and may be open to criticism but the question is whether the various statutory tests have been made out.

12	Section 6 of the Disability Discrimination Act 1995 deals with the duty of an employer to make adjustments and, as Mr Taylor for the respondent has helpfully set out in detail in his skeleton argument, it forms part of a wider scheme.

Section 5(1) provides:

“5 (1) 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 to whom that reason does not or would not apply; and
(b)	he cannot show that the treatment in question is justified.”

13	Pausing there for the moment, it has been established by the decision of this tribunal in Goodwin v The Patent Office [1999] IRLR 4, that where the discriminatory treatment is dismissal, it is section 5(1) that needs to be the focus of attention, rather than section 5(2).  That subsection provides as follows:

“5 (2) For the purposes of this Part, an employer also discriminates against a disabled person if -
(a)	he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
(b)	he cannot show that his failure to comply with that duty is justified.”

14	In other words section 5(2) deals with discriminatory treatment short of dismissal, or while the employment is continuing, and there is no reason why an employee cannot maintain at the same time a claim for discriminatory dismissal under section 5(1) and pre-dismissal discriminatory conduct while he was still employed.  I ought to mention subsection 5 of section 5:

“5 (5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty.”

Section 6(1) provides:

“6 (1)	Where –
(a)	any arrangements made by or on behalf of an employer,
(b)	any physical feature of premises occupied by the employer,
place 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 arrangements or feature having that effect.”

And Section 6(3) set out a number of examples of such steps including transferring the employee to fill an existing vacancy.

15	The Code of Practice Disability Discrimination 1996 exists to guide tribunals and the courts and this tribunal.  The Employment Tribunal were bound to take the provisions of the Code of Practice into account in reaching their decision and there is some plainly helpful advice and guidance given.  There is reference to the possibility of an alternative role for the employee which is either available or which may shortly become available.  We do not read that guidance as placing the Employment Tribunal in a strait-jacket.  What is shortly to become available is a flexible concept and a concept which doubtless takes its colour from the surrounding circumstances and the size and nature of the employer’s undertaking may be one of the factors which would have to be considered.

16	The essence of the appeal and the basis on which this appeal was allowed to proceed to a full hearing was that the tribunal had not identified in their reasons, any specific step under section 6 which the employer was under a duty to take in order to prevent the arrangements made by them from placing the employee at a substantial disadvantage.  

17	It is correct that the tribunal did not identify any particular step.  There was no material on which the tribunal were able to conclude that there was suitable alternative employment, either available at the time of the dismissal or prior to the dismissal, or that some suitable alternative employment would have become available in the foreseeable future and reasonably foreseeable future.  But in paragraph 7 of their reasons they say this:

“The Tribunal considered in the round that the respondent’s job-search in respect of the applicant was undertaken on a perfunctory basis.  There were a number of references in the response to enquiries made as a result of knowledge of the applicant’s condition which indicated the possibility that there might be posts available in the not too distant future which the applicant might consider taking.  The applicant was aware that considerable numbers of employees at the site were employed on a contract basis to undertake, for example, driving work.  The Tribunal, despite raising questions regarding these aspects, did not receive any detailed information as to the number of posts and functions undertaken, and the possibilities for employment and turnover of staff in relation to what the respondent termed the ‘daylight areas’ where staff are not employed in shift work.”

18	It seems to us, without laying down any general rule as to what the burden of proof is in relation to potential adjustments under section 6, that where, as here, the potential for alternative employment lay for practical purposes exclusively within the knowledge of the employer, that there was a burden of proof on the employer to satisfy the tribunal that there was no alternative employment, either available or available in the reasonably acceptable future for this employee.  

19	Mr Wilson, on behalf of the appellants, conceded that the appellants bore the burden of proof on that issue and for the reasons which we have given we believe that that concession was correctly made.

20	It seems to us that the tribunal were entitled to reach the conclusion which they did, on the simple ground that the appellants had not discharged the burden of proof which lay on them, in the circumstances of this case of showing that there was no such alternative employment.  That would be sufficient to determine this appeal.

21	It was argued by Mr Taylor that there was an alternative route which was implicit in the tribunal’s findings.  He asserts that the tribunal could simply have held that, for the purposes of section 5(1), the respondent was admittedly treated less favourably than others because of his disability because he was dismissed because of it and that so much is not in dispute, and that where an employer did not carry out an adequate search for alternative work it is impossible for an employer to show that that dismissal was justified regardless of whether or not the employee or the tribunal are able to point to some specific job which was available.

22	In our judgment there is a great deal of force in that submission but we do not find it necessary to determine it, bearing in mind in our judgment for substantially the same reasons as the tribunal, although in somewhat different language, we hold that the tribunal were entitled to come to the decision which they did and accordingly we dismiss the appeal.