Scottish Sheriff Court Decisions

[1] The appellants are a limited company engaged in the supply of materials to the hairdressing trade in the United Kingdom. They carry on their business through travelling sales people. The respondent was employed by an associated company of the appellants from 1990 onwards and transferred to the appellants' employment in 1992 when he was appointed territory sales manger for the West of Scotland. He was, however, absent from his employment because of health problems from September 1993 and was eventually dismissed on 27 November 1998. The respondent then made an application to an Employment Tribunal, in which he represented himself. There was initially some difficulty in establishing what the grounds of the application were. In the course of the Tribunal hearing, however, two claims were formulated. The first was a claim for breach of contract which proceeded on the ground that the appellants had failed to take certain steps required of them under the contract of employment to secure a proper ill-health pension for the respondent. The second claim was that the appellants had breached section 6 of the Disability Discrimination Act 1995 by dismissing the respondent as they had done. In passing, it should be mentioned that there had been an earlier application to an Employment Tribunal which had been dismissed on the ground that the Tribunal had no jurisdiction to deal with the matters raised in it. By the time the application with which the present appeal is concerned was made, the Disability Discrimination Act 1995 was in force. By a decision dated 1 March 2000, the Employment Tribunal held that the appellants had not breached section 6 of the 1995 Act and that they had not acted in breach of the contract of employment with the respondent. That decision was subjected to review and on 16 March 2000 the Tribunal held that there had been a breach of the contract of employment and awarded the respondent the sum of £340.60. They re-affirmed their decision in regard to discrimination under the 1995 Act.

[2] It appears that the principal issue which was contested before the Employment Tribunal was the issue of breach of contract. The appellants operated a permanent health insurance scheme for the benefit of their employees, with an insurance company. The broad thrust of the respondent's claim for breach of contract was that he had been incapacitated by illness from carrying out his work with the appellants and that the appellants had failed to take the steps necessary, or even to act in good faith, in dealing with their insurers in regard to provision of benefits under the permanent health insurance scheme. The Employment Tribunal held that there was no evidence that the appellants had acted improperly or in breach of contract in their dealings with the insurers under the scheme and, as a result, that the claim for breach of contract failed. That decision has not been challenged on appeal.

[3] Following the failure to obtain benefits under the permanent health scheme, the appellants arranged a meeting with the respondent at which they intimated that his employment was to be terminated by reason of incapacity. The Employment Tribunal record that the applicant did not seriously challenge the fairness of that decision and point out that the application made to them was not an application on the ground of unfair dismissal. It appears, however, that at the time of the dismissal the appellants did not give any thought to the provisions of the Disability Discrimination Act. It may be that the respondent likewise did not at that time give any direct thought to the provisions of the Act: he did not, in any event, make any direct reference to those provisions. The Employment Tribunal held however that the fact that the respondent had not directly referred to disability or to rights under the Act did not absolve the appellants of their responsibilities given that they were fully aware of the respondent's state of health as a result of the communications which had taken place in regard to the other head of claim. Consequently, the Employment Tribunal held that the appellants did discriminate against the respondent by dismissing him and that that discrimination was unlawful in terms of section 4(2)(b) of the 1995 Act. The Tribunal, however, went on to consider, in terms of section 6 of the Act, and the relevant code of practice, whether the discrimination was justified and whether it had been possible to make a reasonable adjustment in favour of the respondent. The Tribunal held that the respondent was dismissed because he was unable to do his job as it then existed, that his absence was continuing and that there was no reasonable prospect of the situation changing. They further held that there was no practical way of restructuring the appellants' system of operation and that there were no administrative positions available which might have been filled by the respondent in the appellants' organisation. The Tribunal concluded that the failure of the appellants to comply with their duty under section 6 was justified, the reason for the failure being both material to the circumstances of the case and substantial. They held that the respondent's job was that of a travelling salesman and that they could see no way in which the task could have been reasonably adjusted to reduce the travelling and reduce or remove the limited amount of "fetching and carrying" that selling involves. For those reasons, they dismissed the claim under the 1995 Act.

[4] The respondent then appealed to the Employment Appeal Tribunal. The appeal was allowed by a decision dated 10 October 2000. The Employment Appeal Tribunal held that a finding should be made that the respondent had been discriminated against and the case remitted to the Employment Tribunal to consider the question of compensation. The ground of the Employment Appeal Tribunal decision was that the position of the appellants had essentially been that they did not regard the respondent as disabled but merely on sick leave and thus were maintaining that they had no knowledge of any disability. It therefore followed, in their view, that during the currency of the employment the appellants had not applied their mind to the issues raised under section 6 of the 1995 Act in regard to reasonable adjustment. In these circumstances, the Employment Appeal Tribunal held that the issue of justification could not arise at all and that the legislation could not be held to contemplate attempts by employers to justify an act later held to be discriminatory on a hypothetical and ex post facoto basis.

[5] The appellants appealed against that decision on the ground that the Employment Appeal Tribunal had misdirected themselves. In their grounds of appeal, they relied particularly on the decisions in London Borough of Hammersmith & Fulham v. Farnsworth 2000 IRLR 691 and Clark v. T.D.G. Limited, trading as Novacold 1999 IRLR 318. When the case came before us, counsel for the respondent conceded that the Employment Appeal Tribunal had misdirected themselves on this point. It was, however, submitted that the Employment Tribunal had erred in three respects. These criticisms of the decision of the Employment Tribunal were set out in the respondent's answers to the grounds of appeal to this court. They had also figured in the grounds of appeal to the Employment Appeal Tribunal, who did not find it necessary to deal with them. The three grounds were as follows:

[6] Accordingly it was submitted that the decision of the Employment Appeal Tribunal had been correct.

[7] When the appeal came before us, counsel for the respondent sought leave to add to his answers a further ground for maintaining that the decision of the Employment Tribunal was incorrect. This was that the Employment Tribunal had erred by conflating the defences available to the employer, after it had been found that the applicant had been discriminated against on the grounds of his disability. These defences were the defence of justification in terms of section 5(1) of the Act and the defence of justification for not having carried out reasonable adjustments in terms of section 5(2) and section 6 of the Act. Counsel for the appellants opposed any addition to the grounds previously set out in the respondent's answers. He submitted that if this new matter were raised it would require reference to a new Employment Tribunal, which was inappropriate in view of the stage at which proceedings had reached. He submitted that the problem of any imprecision in the reasoning of the Employment Tribunal in dealing with sections 5(1) and 5(2) was attributable to the form in which the applicant had placed the case before the Employment Tribunal and that if this new ground were to be explored the applicant would require to specify his complaint for the first time. In any event, the Employment Tribunal had considered both the question of justification and the question of reasonable adjustment. In our view the appellants' arguments on this point were well-founded. We considered that this new ground sought to raise a matter which might have been raised much earlier and that it was much too late to allow that to be done.

[8] Section 5 of the 1995 Act provides that for the purposes of the Act an employer discriminates against a disabled person if, for a reason which relates to the disabled persons disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply and he cannot show that the treatment in question is justified. Section 5(2) further provides that an employer also discriminates against a disabled person if he fails to comply with a section 6 duty imposed on him in relation to the disabled person and cannot show that his failure is justified. Section 6(1) requires an 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 arrangements or physical features of premises which place a disabled person at a substantial disadvantage in comparison with persons who are not disabled having that effect. Section 6(3) sets out a list of steps which an employer may have to take including allocating duties to another person, transferring the disabled person to an existing vacancy, altering working hours, assigning him to a different place of work or allowing him to be absent during working hours for certain purposes. As we have explained, the Employment Tribunal found that the appellants did discriminate against the respondent by dismissing him but they then went on to make additional findings of fact. These were that the employers did not have an office in Scotland, the only staff employed in Scotland being sales personnel doing similar jobs to the respondent; that there was a continuing need for the task carried out by the respondent to be performed: that some changes were made to the area covered by the respondent reducing the mileage to be covered by the salesman responsible for the area, although these reductions were made for economic reasons; and that a reduction in the mileage to be run by the respondent in rural areas would simply have increased the number of visits to premises in more heavily urban areas with a consequent increase in the amount of fetching and carrying about which the respondent also complained. They further found that -

[9] In the argument for the respondent it was conceded that the way in which the case had been presented by him had caused difficulties but it was submitted that the Employment Tribunal had nevertheless erred in failing to follow a step by step approach in considering the possibilities of reasonable adjustment, given that there was an onus on the employers to show that what they had done was consistent with the requirements of the Act. There were a host of matters which ought to have been considered by the Employment Tribunal but were not. The Employment Tribunal had not considered reducing hours of work or getting someone to share the job. Reference was made to British Gas Services v. McCall 2001 IRLR 60 and Post Office v. Jones 2000 I.C.R. 388.

[10] In our view, there is no substance in these criticisms of the decision of the Employment Tribunal. Before the Tribunal, the respondent was insisting that he was unable to carry out the duties of his employment, with a view to obtaining an ill-health pension. The question of adjustments to his employment only arose incidentally. The Tribunal did have some information before it as to the nature of the job and the possibilities of change. The Tribunal properly considered the material which was before it and reached a conclusion, on the evidence, that the job could not reasonably have been adjusted. The fact that they did not mention every type of adjustment which might theoretically have been made does not, in our opinion, take away from the fact of this conclusion. The conclusion concerned a matter of fact, which is a matter for the Tribunal. In our view, it has not been shown that the Tribunal erred in law.

[11] In these circumstances, we shall allow the appeal, refuse the cross-appeal, re-call the decision of the Employment Appeal Tribunal and restore the decision of the Employment Tribunal.