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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> MacDonald v. Salvation Army & Ors [2003] UKEAT 0038_03_0310 (3 October 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0038_03_0310.html Cite as: [2003] UKEAT 0038_03_0310, [2003] UKEAT 38_3_310

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APPEARANCES

 

For the Appellants	Mr D Maguire, Solicitor Of- Messrs Allcourt Solicitors 1 Carmondean Centre Carmondean LIVINGSTON EH54 8PT
For the Respondents	Mr M O'Carroll, Advocate Instructed by- Of- Messrs Mackay Norwell Solicitors 5 Rutland Square EDINBURGH EH1 2AS


 


LORD JOHNSTON:

1. This is an appeal at the instance of the original applicant, who has unfortunately, subsequently died, against a finding of the Employment Tribunal that she had not been discriminated against in terms of the Disability Discrimination Act 1995.
2. The background to the matter was that she was diagnosed as suffering from terminal cancer. According to the Tribunal she was required to take certain time off and the employer started to monitor her sickness record. This forms one of the complaints made in relation to the allegation of less favourable treatment. The only other live issue relates to a failure on the part of the employer to allow her to take time off for medical appointments during shifts and requiring her instead to take a whole shift off.
3. The Tribunal have issued very detailed findings and, in particular, hold that at page 18 lines 20 to 23 that two other employees were also being interviewed in respect of absences for the same reason as applied to the appellant. Furthermore, as Mr O'Carroll argued, there is a duty to provide supervision where appropriate, under section 6(3)(1) of the Act and the paradox is that in the complaint here that is precisely what the respondents were doing.
4. With regard to the second complaint, namely, failure to allow her to take time off for medical appointments, the Tribunal find at page 19 lines 11 to 20 that production 12 was in fact a policy which applied to everybody, irrespective of whether they were disabled, and she was not suffering a detriment by reason of her disability.
5. Given that situation, namely, no detriment being established, a suggestion that in some way the Tribunal misapplied the well known case of Clark v TDG Ltd t/a Novacold [1998] IRLR 420 is wholly misconceived. If there was no dismissal and no detriment, no issue of less favourable treatment arises.
6. On this short ground, in our opinion, this appeal must fail. Mr O'Carroll made an alternative argument, in any event, assuming less favourable treatment has been established it could be justified but we do not need to consider this.
7. Separately, Mr Maguire sought to argue that there was a breach of section 5(2) under reference to the duty to make reasonable adjustments in terms of section 6.
8. The irony in this aspect of the matter is that complaints with regard to adjustments are precisely the same questions that were focussed on the issue of less favourable treatment. If they did not amount to less favourable treatment, we do not see how they could be reasonable adjustments that the employer ought to have taken. In any event, the evidence clearly establishes, summarised by the Tribunal on page 19, that the employer went to considerable efforts to try and accommodate or help the appellant. In particular, they considered whether relief work should be appointed in her place, that she should have a change of working hours, that she could have 3 month's leave of absence or a possible suggestion that she could retire on grounds of ill health.
9. Mr Maguire sought to suggest that that in itself was oppressive and less favourable treatment but we consider this aspect is wholly without justification. It must be emphasised that it is not appropriate in cases of this sort that the benefit of hindsight to suggest to the Employment Tribunal system that the employer should have taken adjustments which were not taken or even considered. Where, as here, the employer has made an effort to offer adjustments which have been rejected. It is only in our view when the employer does nothing that the question of what adjustments might have been made can be considered.
10. In the present case we consider the Tribunal's findings to the effect that the Employer acted reasonably in relation to the section 6 duty is entirely justified.
11. In these circumstances, having regard to the fact the evidence more than supports the Tribunal's findings, in accordance with the proper practice applying to this Tribunal, we will not interfere with the decision.
12. The appeal is refused.