United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M WHITCOMBE (of Counsel) Messrs Pattinson & Brewer Solicitors Transport House Victoria Street Bristol BS1 6AY


 


JUDGE HICKS QC: The applicant and appellant, Mrs Grigg, was employed by the Land Registry at Swansea as a Registration Assistant 2 from 13th March 1989 to 30th September 1997, when she was dismissed. She had suffered from repetitive strain injury in 1995, when she had a long absence for that reason and an operation in June. As the tribunal found she was thereafter, among the range of duties for which she would normally be responsible, only able to open and check the post. All other tasks, as they found, exacerbated her condition.

Thereafter changes of an organisational nature within the Land Registry led to the setting up of small teams. Mrs Grigg was in a team which comprised 18 members and was one of two Registration Assistants 2 in that team. Whereas before, as a part of a larger complete organisation, she was able to take enough work of the kind she could do to fulfil a full workload that was not possible in the smaller team. The tribunal find that although every effort was made to keep her in employment that became more and more difficult. After the involvement of the Occupational Health Service Agency and the obtaining of a report from the surgeon who had operated in 1995 the Land Registry eventually, as the tribunal find, decided that the only course open to them was to retire Mrs Grigg on medical grounds, and that they did.

The Notice of Appeal, which Mr Whitcombe has taken us through with admirable clarity and brevity, advances two grounds. The first is failure to give reasons for the decision and the second is perversity.

Under the first head the first limb is failure to state a finding as to the reason for the appellant's dismissal. In our view that cannot be sustained. The tribunal, as I have indicated, find that the employer decided that the only course open was to retire Mrs Grigg on medical grounds and say: "This they did". We think that on any fair reading that means that the ground for dismissal was incapability in the form of ill-health.

Next it is alleged that there was a failure to make specific findings on a number significant issues of fact, and four are listed. The first is the appellant's contention that the Occupational Health Service Agency ignored many of the tasks that fell within the duties of a Registration Assistant 2. The fact is that the tribunal did make findings as to the range of duties within the responsibilities of that grade and of those duties within that range which Mrs Grigg was able to perform. There is no lack of relevant findings there.

The second and third deal with two matters which crop up again under perversity and are the real nub of this appeal. The first was that there is alleged to be a failure in the reasons to deal with the appellant's contention that there was other work that she could have been allocated, in particular that of a telephonist. The second is that there is a failure to deal with the appellant's contention that she could have been offered work on a part-time basis.

The fact of the matter is that, although brief, the tribunal's decision does make clear findings that every effort was made to keep Mrs Grigg in employment, that it became more and more difficult to do so, and that not only did the employers consider that in a managerial capacity but also engaged the Occupational Health Service Agency in the same exercise and obtained a report from Mrs Grigg's surgeon. In our view those findings cover the field, however briefly, and it is not a failure to give adequate reasons that the Industrial Tribunal did not deal specifically with two matters which were canvassed, namely the possibility of employment as a telephonist or of being employed on a part-time basis.

Those two heads, however, re-appear under the second main ground of perversity. Before I come to that I should say that there was a fourth head under failure to give findings of issues of fact, but Mr Whitcombe very fairly accepted that it was essentially a catchall clause and does not add to the previous matters already raised.

In relation to perversity, apart again from a final catchall paragraph, there are two heads. The first again concerns the evidence about becoming a telephonist and the matter of getting a part-time job. The burden on an appellant seeking to allege that a tribunal has been perverse is very heavy and it is not necessary, we think, to rehearse the authorities in which that has been stated or precise way in which it has been expressed. It is sufficient to say that, in our judgment, there is no ground here for concluding that the tribunal was perverse in its conclusions. One is really driven back to the first head and being asked to conclude that there may be a case of perversity because of the brevity of the reasons. We are not satisfied that that is a sufficient ground for allowing this appeal to proceed, given that, although in fairly general terms, the tribunal has in our view addressed itself in its reasons to all the relevant matters.

The second head consists of a pair of grounds of perversity arising from the fact that there were complaints here, not only of unfair dismissal in general, but also of breach of the Disability Discrimination Act 1995. Reliance under the head of perversity is based on the fact that the managers called to give evidence for the employer admitted that they had received no training in terms of the Act and that the only reason they had not considered the appellant for part-time work was that they did not think to do so.

We see no way in which it can be perverse of a tribunal to find against the applicant simply because of evidence of that kind by the employers' witnesses. The examples, and they are only examples, of steps which an employer may have to take in relation to a disabled person to comply with s. 6(1) of the Disability Discrimination Act 1995, do include "altering working hours". It is far from clear, to say the least, that that is concerned with part-time work as distinct from altering the timing of the same total number of working hours to accommodate the needs of a disabled person. Similarly, in so far as the telephonist's job is concerned, head (c) contemplates one of the possible steps as transferring the employee to fill an existing vacancy, but that is quite a different process from removing someone else from an existing job, which was what was apparently suggested here, there being an existing telephonist who would himself or herself have rights that the employer would not necessarily be able to interfere with without good reason. In our view there is nothing raised in relation to the Disability Discrimination Act, simply because of apparent lack of training or particular skills on the part of the managers, to justify saying that this tribunal was perverse in the conclusion which it reached.

Those are the matter raised in the Notice of Appeal. We are of the judgment that none of them amounts to a ground which could succeed on a further hearing and that this appeal should at this stage therefore be dismissed.