Appeal No. EATS/0008/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 27 June 2003

 
Before
THE HONOURABLE LORD JOHNSTON
MR J M KEENAN
MISS A MARTIN

 

ALEXANDER JAMES MACKAY	APPELLANT

 

 
ABERDEENSHIRE COUNCIL	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellant	Mr F H Lefevre, Solicitor
Of-
Quantum Claims
Employment Division
70 Carden Place
Queens Cross
ABERDEEN   AB10 1UP

 

For the Respondents

 

 

 

Mr P Sharp, Solicitor
Of-
Messrs Ledingham Chalmers
Solicitors
Johnstone House
52-54 Rose Street
ABERDEEN   AB10 1HA

 

LORD JOHNSTON:
 
1.	This is an appeal taken by the employee against the part of the Employment Tribunal’s decision, which was otherwise in his favour, relating to disability.  The Tribunal found that he had been unfairly dismissed and at a subsequent remedies hearing made a substantial monetary order.  However, at the original hearing, the Tribunal rejected the claim under the Disability Discrimination Act 1995 (“The Act”).
 
2.	The matter can be disposed of at this stage very shortly.
 
3.	In the original application it appears that the complaint in respect of disability was substantially related to the requirement on the part of the employer to make adjustments under section 6 of the Act.  However, before us, Mr Lefevre eschewed that and concentrated on less favourable treatment under section 5.  We say at once that we do not consider there is any substance in the suggestion that the employer should have been required to make adjustments, given that the only possible requirement related to the appellant’s continence, and no one suggested that if he had been able to return to his employment at Woodhill, that could not have been met.  The question therefore of adjustment and, indeed, his whole medical condition in that context, is to our mind irrelevant.
 
4.	However, in relation to less favourable treatment in terms of section 5, the only base for that must be the decision by the employer to refuse to allow him to return to his previous employment at Woodhill.  As the Tribunal state, on page 12 of their decision, that decision was taken in April 2000.  Accordingly, any complaint in relation to that should have been brought within three months of that date and it was not.  Accordingly we consider any issue under section 5 was beyond the jurisdiction of the Tribunal and also this Tribunal.
 
5.	Even if the matter were to be considered, given that the decision to dismiss has been categorised as unfair and quite unrelated to disability, the question of justification was adequately dealt with by the Tribunal.
 
6.	In these circumstances we consider there is no substance in any of the grounds of appeal in this case and it will be dismissed.