United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS H MOUNTFIELD (of Counsel) MR K WOODHOUSE Sheffield Law Centre Waverley House 10 Joiner Street Sheffield S3 8GW


 


JUDGE PETER CLARK: The Appellant, Mr Arboshe, brings this appeal against a decision of the Stratford Employment Tribunal, promulgated with extended reasons on 7 April 1998, dismissing his complaints of unfair dismissal and Disability Discrimination under the 1995 Act against his former employers, the Respondent, East London Bus and Coach Company Limited.

He commenced employment with the Respondent as a bus conductor on 6 February 1989. By July 1995 he had progressed to night bus driver operator, a position which he held until his dismissal with effect from 5 February 1997.

During October 1996 the Appellant first experienced symptoms which he put down to influenza. However, when he eventually sought medical advice it was discovered that he was diabetic. His condition was serious. He lost 20 kg in weight in 2 weeks.

The Respondent provides bus services throughout London under a contract made with London Transport. A feature of the operation is a need to monitor closely staff sickness. For this purpose the Respondent operated an attendance at work policy.

Under that policy the Appellant was asked to attend an interview with the Operations Manager, Mr Webster, by a letter dated 27 November 1996, he having been off work since 5 November. At that meeting the Appellant informed Mr Webster that he was diabetic. A further meeting took place on 22 January 1997, when the Appellant told Mr Webster that the treatment he had been receiving had not been effective and he would need to take insulin.

Mr Webster explained, as the Appellant already knew, that a consequence of insulin dependant diabetes was that his public carriage vehicle licence (PVC) would be revoked. He would thus be unable to continue work as a bus driver. He was told that consideration would be given to alternative work.

A further meeting was arranged for 4 February 1997 at the request of the Appellant's union, which had represented him throughout. By that date he had been off sick for 91 days.

At that meeting the Appellant was informed of existing vacancies, one was a clerical post, which the Appellant felt unsuited for, and as a bus conductor. He did not, he said, feel well enough to carry out work as a bus conductor. Mr Webster thought there was another reason, that was a drop in pay compared with his driver's pay of some £85 per week gross.

In these circumstances Mr Webster informed the Appellant that he had no alternative but to terminate his contract on medical grounds with effect from 5 February 1997 and with 8 weeks pay in lieu of notice. He was informed of his right of internal appeal. That was not pursued by the Appellant.

Unfair Dismissal

By an amended Notice of Appeal settled by Miss Mountfield, who appears on behalf of the Appellant today, the Appellant first challenges the finding of fair dismissal. Two points are taken:

Firstly, that under the principles set out by Mr Justice Phillips in East Lindsay District Council v Daubney [1977] IRLR 181, although there was adequate consultation with the Appellant prior to his dismissal, the true medical position was not established in this case because the employer obtained no medical evidence. We think there is nothing in that point. It was common ground between the parties that by the time of dismissal the Appellant was suffering from diabetes which required him to be placed on insulin and as a result, he was unable to work as a bus driver.

Secondly, it is submitted that the Tribunal misdirected themselves by impermissibily

enquiring as to whether any procedural failing on the part of the Respondent would have made no difference to the outcome. That is not how we read paragraph 14 of the Tribunal's reasons. It seems to us that there was ample evidence before the Tribunal and their findings were such as to entitle them to conclude that the employer acted reasonably in treating capability as a sufficient reason for dismissal on the facts of this case. Accordingly we shall dismiss the appeal against the finding of unfair dismissal.

However, we think the further grounds of appeal to be found in paragraphs 3-6 of the amended Notice of Appeal, relating to the finding that there was no disability discrimination under the Act, are each of them properly arguable at a full appeal hearing. We shall say no more about the merits of that part of the appeal since that will be a matter for the Tribunal which hears the full appeal. Save to make this observation, the first line of attach against the disability finding is a head on challenge to this Tribunal's judgment as to the question of the comparator under the Disability Discrimination Act in Clark v Novacold [1998] IRLR 420. That case is on its way to the Court of Appeal and we understand that it is due to be heard in June 1999.

In these circumstances, it would be for the parties to make such representations as they see fit as to the listing of this appeal. Those representations to be made to the Registrar in writing.

For the purpose of the hearing of the appeal, we shall say at this stage that it be listed for one day, Category B, skeleton arguments to be exchanged between the parties and copies lodged with this Tribunal not less than 14 days before the date fixed for the full appeal hearing. We have considered Ms Mountfield's application for the Chairman's notes of evidence. We do not regard them as necessary in this case.

Leave to amend the Notice of Appeal is granted, deleting grounds 1-2.