United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A BUCHAN (of Counsel)


 


JUDGE PETER CLARK: The appellant, Mr Hanlon, is disabled within the meaning of the Disability Discrimination Act 1995 ["the Act"]. He suffered an accident at work in the past to his leg which has left him with limitations on his mobility, pain in the hip joint and interlocking of the big toe joint.

In 1990 he was interviewed for the post of Technician Scale 3 in the respondent University's School of Architecture by a panel including the Dean, Mr Calderbank. At that interview, so the Nottingham Industrial Tribunal found, the appellant told the panel of his disability but did not claim that his condition was either degenerative or debilitating. He said that he needed to be able to move around, and at other times to be able to sit and rest. He did not mention any need for privacy to carry out personal physiotherapy.

Mr Calderbank made adjustments for the duties of the post and it was offered to and accepted by the appellant, who started work in September 1990.

His duties were then centred on Workshop W5/31, involving a mix of both sedentary work and audio visual duties which required him to move around.

He proved a good and conscientious employee. He had an interest in Health and Safety matters and became a first-aider.

Whilst working in W5/31 the appellant shared an office with Mr Bennett, who told the Industrial Tribunal, and they accepted, that the appellant had to sit and rest his leg after standing for a long period, and that on bad days he sat and rubbed his leg. He did not see him remove his trousers for the purpose of administering personal physiotherapy.

On 30th April 1996 Mr Calderbank met with the appellant and told him that a decision had been taken to create a single workshop for the whole school. The appellant was to transfer his duties to Workshop JW8. In November or December 1995 the appellant had inspected that workshop because he had applied for a job there. He did not get the job, but during the interviewing process he made no suggestion that the facilities there were unsuitable because of his disability.

The appellant was unhappy about the proposed move. He saw it as a demotion. A consultation process ensued during which, the tribunal found, the appellant did not suggest that his physical condition had changed or deteriorated, nor that he required anything more than the opportunity to have a degree of mobility and somewhere to rest. In particular, he at no time suggested that he needed private facilities to remove his trousers in order to massage himself. Had he done so, Mr Calderbank would have ensured that a private room was made available for that purpose.

On 2nd June the appellant wrote a memorandum in which he referred to his post as that of Senior Technician and considered he should be graded "level 6". The respondent replied that he was a Technician not a Senior Technician.

Thereafter the appellant invoked the internal grievance procedure. His complaint related to his grade as a Technician, his perceived demotion and the lack of consultation in respect of it. He talked of a fundamental breach of his contract of employment.

The grievance was heard by Dr Kirby, the pro vice-chancellor on 25th June. It was rejected in findings published on 4th July 1996.

On 18th June the appellant asked Mr Calderbank to consider the conditions in JW8 with regard to his disability. He did not suggest that his requirements for adjustments had changed in any way. Mr Calderbank, on 9th August, set out the same arrangements as had been made before for the appellant in W5/31.

The appellant was on sick leave from 26th June until mid-October 1996. Following his return he raised issues regarding Heath and Safety matters. In memoranda he informed Mr Calderbank that he would not be able to supervise students without first having a description of all his responsibilities, as without it there would be a risk to Health and Safety.

On 15th November the appellant refused to supervise a group of students, and again on 5th December, on Health and Safety grounds. He was warned by Mr Calderbank that such refusals to work normally, in the absence of medical reasons, would be treated as a serious disciplinary matter, possibly leading to dismissal.

On 6th December the appellant attended a meeting with Mr Calderbank and produced a memorandum stating, for the first time, that his physical condition had deteriorated and that no attempt had been made to assess his condition. Mr Calderbank offered to arrange for a proper assessment to be carried out, but the appellant made no response to that offer.

Mr Calderbank believed that he had done all he could. He had complied with all the adjustments requested by the appellant, the appellant was not unfit to supervise students, he rejected the appellant's claim that he could not safely supervise them, based on advice which he had received from Dr Boryslawskij, the Health and Safety officer. He decided to suspend the appellant pending further disciplinary action on 6th December 1996.

On 9th December the appellant presented a complaint to the Industrial Tribunal alleging disability discrimination. He was represented by his wife, who sat as a lay Industrial Tribunal member in the Leeds region. The case was accordingly transferred to Nottingham and came on for hearing on 24th October 1997.

Having set out their findings of fact, summarised above, in extended reasons dated 22nd December 1997, preferring where factual conflicts existed, the evidence of the respondent's witnesses, the Industrial Tribunal concluded:

(1) that the appellant received less favourable treatment in that he was suspended, but that was not by reason of his disability. He was suspended for refusing to comply with his contractual obligations. His reason for so refusing was related to his dissatisfaction over the move to the new workshop and the respondent's refusal to re-grade him.

(2) As to the respondent's duty to make adjustments under s. 6 of the Act, the tribunal found that the respondent did not know that further adjustments, over and above those provided for in W5/31, were needed in JW8. The appellant had never informed the respondent that he needed privacy for personal massage, nor was it apparent from past practice.

The complaint was dismissed.

The Appeal

Mr Buchan, on behalf of the appellant, acknowledges his difficulty in avoiding the Industrial Tribunal's clear finding of fact in paragraph 28 that the reason for the suspension on 6th December 1996 did not relate to the appellant's disability for the purposes of s. 5(1) of the Act.

His attack is directed to the tribunal's second finding, that for the purposes of a separate head of complaint under s. 5(2) the respondent had failed to comply with a s. 6 duty imposed on it by virtue of the provisions of s. 6(6).

Again, in our judgment, this appeal is defeated by the tribunal's findings of fact. It was the appellant's case that he had made clear the need for privacy, both at his original interview in 1990 and at the meeting on 6th December 1996. That version of events was rejected by the tribunal. The result, so the tribunal found, was that the respondent did not have actual or constructive knowledge of a need for privacy for personal massage which required further adjustments in the new workshop over and above those already provided in the former workshop.

We can see no error of law in the tribunal's approach. It was in the end all a question of fact for the Industrial Tribunal. Accordingly, this appeal must be dismissed at the preliminary hearing stage.