United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A BURNS (of Counsel) Legal Department London Transport 55 Broadway London SW1H 0BD
For the Respondent	MS S TETHER (of Counsel) Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


MR JUSTICE LINDSAY: This is an appeal by London Underground Ltd ("LUL") against the decision of the Employment Tribunal at London (North) which was sent to the parties on the 11th May 1998. The Tribunal, under the chairmanship of Mrs M.H. Don, had before it a claim by an employee of LUL, Mr A. Bragg, that he had been discriminated against within the meaning of section 5 (1) and (2) of the Disability Discrimination Act 1995. The disability in question is a hearing disability. The Tribunal's decision, which was unanimous, was:-

"..... that Mr Bragg was discriminated against by reason of his hearing disability".

The background to the matter is as follows. Mr Bragg, now aged 38 and still today an employee of LUL, joined it in 1979. At first he was a guard on the Piccadilly Line and in 1984 or 1985 he successfully trained to become and did become a train operator (that being the name given by LUL to the rôle most of us would describe as being a train driver). In 1994, after Mr Bragg had had some 9 or 10 years as a driver, his wife noticed that his hearing had deteriorated; he had to turn up the volume on the television at home and had occasional difficulty hearing speech. Mr Bragg went to his GP and was referred to a consultant, Mr Farag F.R.C.S., a consultant E.N.T. surgeon who diagnosed moderate bilateral sensory neural hearing loss. The consultant thought that Mr Bragg's exposure to noise at work could be a contributory factor. He thought that the consequence might be that Mr Bragg would have to abandon his job as a train driver. Mr Bragg took the matter up with his train crew manager and he was passed on to Dr Olivia Carlton, a Medical Officer for London Transport Medical Service. Dr Carlton had qualified as a General Practitioner and in 1994 had obtained Membership of the Faculty of Occupational Medicine. She was in the same year accredited as an Occupational Physician. She conducted a "whisper test" and an audiometric test. She did not require Mr Bragg to stop operating the trains; she was satisfied at the time that he could continue but, not herself being a hearing specialist, referred the matter to Mr Ellis Douek, F.R.C.S. As Mr Farag had, Mr Douek, too, found that there had been some hearing loss, in both ears. He thought it was of an heredodegenerative type. He continued:-

"What we do not know is whether this makes his ears more vulnerable to noise and even to noises that are below the usual harmful levels. It makes it difficult for us to know what to advise. On the whole, it is better not to be exposed to noise but we are not sure whether levels of this type will be damaging".

Such cases, thought Mr Douek, "tend to deteriorate very gradually whether they are exposed to noise or not".

On the 27th May 1994 Dr Carlton told Mr Bragg that he could continue as a train driver for not more than 6 months and that thereafter would be transferred to a less noisy job. Accordingly, in 1994 Mr Bragg was re-deployed as a Station Assistant at Wood Green Underground Station. It is fair to note that there was no evidence of Mr Bragg's train crew manager or anyone else wanting to be rid of him as a driver or of its being in LUL's economic interest to transfer him as it did. On the contrary, as it had agreed to "protect" his wages at the higher level applicable to a train operator the transfer was, as it would seem, possibly against such interest.

Mr Bragg was unhappy with his proposed transfer and consulted Dr Cadge, consultant in audiological Medicine at the Royal National T N & E Hospital, who advised in late 1994 that there was a hearing loss of a genetic nature which had to be presumed to be slowly progressive but which was not typical of noise-induced damage. This was reported to Dr Carlton who had enquiries made as to what the noise levels were in the Piccadilly Line drivers' cabins. In February 1995 she gave Dr Cadge some details of noise measurements. Dr Cadge's answer in March 1995 to the question whether, for example, it would be reasonable to continue (sic) to allow Mr Bragg to work at the noise levels indicated was that she felt unable to contribute further at that time. Dr Carlton saw Mr Bragg on the 28th March 1995 and told him his hearing had deteriorated to a point at which it fell below the requisite standard for a driver. He therefore stayed on as a Station Assistant. In Dr Carlton's view he remained unfit for train operator duties.

In October 1995 Mr Bragg was again examined by Dr Cadge. His hearing threshold pattern, in her view, was entirely stable; there was no evidence of deterioration over the 6 months since he had last been seen. Mr Bragg's Union took up his wish to resume train driver duties, suggesting that there should be regular tests in the future to see that he was "O.K.". Dr Carlton replied that she was sorry but that he remained unfit to be a driver.

In 1996 Mr Bragg, on his own initiative, revisited Mr Douek who reported in June 1996 that there had been no significant change in Mr Bragg's auditory thresholds in the period from June 1994 to April 1996. On a subject that Dr Carlton had been concerned about, namely whether cab noise put Mr Bragg's ears at greater risk of further loss or damage than would be encountered by what one might call normal ears, Mr Douek wrote:-

"Although I think there can be little doubt that damaged ears are more vulnerable than undamaged ears, simply because there are less residual cells available for hearing in the cochlea, that does not mean that exposure to reasonably quiet sounds would put the ear at a great risk".

On his, Mr Douek's, understanding that noise levels had been below LEPd85dBA on the Piccadilly Line, he continued:-

"If the trains are even quieter than this now I do not think we would be fair in trying to over-protect him from that".

In July 1996 Mr Bragg was confirmed fit for appointment to a temporary position as a signal operator and since October 1996 he has worked as a signal operator on the Central Line. He is certified as "track competent".

In October 1996 he was again seen by Mr Farag, who detected no further deterioration over the past 2½ years. Mr Farag, on the proposed condition that Mr Bragg would take an audiogram every 6 months, felt that it would be appropriate and safe for Mr Bragg to resume his job as a train driver.

On the 13th December 1996 Mr Bragg accordingly requested that LUL should restore him to his job as a train operator. His request was refused. Dr Carlton explained that "Good all round hearing" was the required standard for a driver and that Mr Bragg would not be transferred back to train operator duties as it would put him at risk. On the 10th March 1997 Mr Bragg signed his IT1 complaining of disability discrimination.

The hearing before the Employment Tribunal was spread over some 4 days in March and April 1998 and expert medical and other evidence was adduced. Although the proper medical and safety inferences therefrom were in dispute the primary facts were not. The Tribunal, setting out early in their Extended Reasons the nature, as the Tribunal had understood it, of Mr Bragg's complaint said, à propos train operator duties, as follows:-

"3. Mr Bragg complained that, by removing him from his duties, he was discriminated against by reason of his hearing disability and, thereby, suffered a detriment which was not justified. An employee with normal hearing would not have been so treated".

Later, in paragraphs 26 and 27 the Tribunal held:-

"26. We find, as a fact on the evidence, that Mr Bragg was treated less favourably when he was transferred to the Station Assistant's position, also when he obtained the signalling operator's position.

27. We then considered section 5 (3) and (5) of the Act and considered whether the less favourable treatment afforded to Mr Bragg was justified".

In a paragraph summing the matter up they say, in their paragraph 38:-

"38. Taking all these factors into account we find that by transferring Mr Bragg from train operator duties he has been discriminated against by reason of his disability. A full hearing train operator would not have been so transferred. This discrimination is not justified".

It is one of LUL's complaints that that paragraph neglects to notice that when Mr Bragg was transferred from train driving duties, and, indeed, at all times until the 1995 Act came into force on the 2nd December of 1996, there was nothing of which Mr Bragg could raise any complaint at all at law. The only matter of which he could complain under the Act was not a failure to transfer him out of trains but the failure, in December 1996, to transfer him back. Both in the paragraph 3 and paragraph 38 cited above, says Mr Burns on LUL's behalf, the Tribunal had misunderstood the only possible complaint that Mr Bragg had raised and had, in effect, answered the wrong question. Moreover, the Tribunal had done so despite an agreed List of Issues (agreed between him for LUL and Miss Tether for Mr Bragg, before the hearing) which list was supplied to the Employment Tribunal. The list made it plain that it was the events of the 13th December 1996 alone that needed to be tested in the light of the new Act. Whilst there were undoubtedly parts of the Tribunal's reasoning which do relate to the refusal to restore Mr Bragg to train driving and to whether suitable adjustments could be made to enable him to do so without risk to himself or to the travelling public, it is not possible to ignore that paragraph 38, as cited above, purporting to take all the mentioned factors into account, does conclude, as was irrelevant, that transferring Mr Bragg from train driving duties was discriminatory and unjustified and fails to hold, as would have been relevant, that failing to restore him to driving was either discriminatory or unjustified. Further, in both paragraphs 25 and 26 there are findings as facts that Mr Bragg was treated less favourably when he was transferred to the position of Station Assistant and also when he obtained the signal operator's position, both of those matters occurring before the Act had come into effect. It is far from impossible that those holdings, adverse to LUL, as respects events before the Act took effect coloured the Tribunal's view of the only relevant event of possible unlawful discrimination, the event of 13th December 1996. It is also not obvious what the Tribunal's answers as to discrimination and justification would have been had it asked itself the right questions. It would be to speculate to assume that it would have come to the same conclusion as that which it expressed in its decision. This ground alone, in our judgment, justifies allowing the appeal and remitting the matter, but it is not, in any event, alone.

Mr Burns complains that despite his citation of the case of Paris -v- Stepney [1951] AC 367 and his argument based on that case received no treatment at all in the Tribunal's reasoning. The point of Paris -v- Stepney is most vividly illustrated by the passage in Lord Normand's speech when, citing from an earlier judgment, he said at p. 381:-

"No prudent man in carrying a lighted candle through a powder magazine would fail to take more care than if he was going through a damp cellar. The amount of care would be proportionate to the degree of risk run and to the magnitude of the mischief that may be occasioned".

A prudent man, in other words, is influenced not only by the degree of possibility of an accident occurring but also by the gravity of the consequence if it does occur. Mr Burns' argument was in relation, in particular, to the risk that Mr Bragg, were he to be in the driver's cab and moving off from rest, might not be able to hear passengers and perhaps those on the platform cry out were a passenger, say, to be dragged along as the train moved off by reason of getting a button or clothing stuck between the closing doors of the train. The risk of that happening might be thought to be very small but the consequences that might be caused if it did could be extremely serious. This point was not merely one of argument; Dr Carlton in cross-examination accepted that there was a risk that even a person with normal hearing might not hear the outcry following a "caught-button" type of incident once the cab was in a tunnel but she went on to say that Mr Bragg would have a greater problem because of his hearing impediment. Moreover, very many tube stations are situate above ground, not in tunnels. There was therefore a serious point raised on behalf of LUL, both on the law and the facts. LUL looks to the reasoning of the Tribunal in vain trying to find why it lost that argument. The Tribunal's decision in that respect fall short of the standard required of an acceptable decision by the well-known case Meek -v- City of Birmingham [1987] IRLR 250.

Next Mr Burns complains as to the Tribunal's conclusion as to what was called the "Rail Track Standard". That was the standard required by Rail Track for its drivers. LUL adopted the standard for its own purposes. The standard was "good all round hearing". The Tribunal in terms held that Mr Bragg's hearing did not comply with that standard. There was no finding that the Rail Track Standard was excessive or unnecessary in relation to Rail Track's train drivers or that it was excessive or unnecessary of LUL to adopt it in relation to its own drivers. The comment on the standard by the Tribunal was merely:-

"We note that the RT Standards were never identified to Mr Bragg or to his Trade Union representative. Indeed, they only appear to have been identified at the Tribunal hearing".

The document produced by LUL to the Tribunal would seem to indicate that the Rail Track Standard was adopted by LUL at latest by the 16th January 1994 or 16th January 1995. Doubtless it was unwise for LUL not to have indicated that the standard was applicable well before the hearing (if it had not) but the fact that it had not does not diminish the Standard as an industry-wide health and safety standard, broadly adopted in a similar industry. If the Tribunal's reference was meant to suggest that LUL had not truly adopted the standard earlier than the hearing or that its adoption of it was in some way disingenuous it should clearly have said so, which it did not. If the comment had meant anything else then it would not have diminished the importance of the standard as an industry standard which Mr Bragg's hearing had failed to measure up to. Mr Burns argues that for a Tribunal to reject such a standard without giving any reason therefor represents a material error of law. He adds that the Tribunal here appears to have done so in part in reliance upon its own conduct of a wholly unscientific "whisper test". The Tribunal said that it had deliberately put some questions to Mr Bragg in a low tone and that Mr Bragg appeared to understand them perfectly. How far the Tribunal had reflected on the fact that Mr Bragg had (presumably) had the benefit of seeing the speaker's lips and was in a relatively quiet hearing-room and, more importantly, was not in an underground train, let alone in a tunnel, does not appear. In our judgment a further ground for allowing the appeal does emerge from the way in which the Tribunal rejected the Rail Track Standard without explaining why it did so and from its own "whisper test", which, it seems, to judge from its mention of it, at least in part to have relied on.

There is a further point that troubles us although we do not see it as a ground for allowing the appeal. Section 1 of the 1995 Act provides that:-

"a person has a disability for the purpose of the Act if he has a physical ....... impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities".

The normal day-to-day activities Mr Bragg's ability to carry out which has been effected have never been identified in any detail beyond his having to turn up the volume on the television and his occasional difficulty hearing speech. Such effects may be thought trivial or minor and, if that were so, then Mr Bragg has, as it would seem upon looking only at those words, no disability within the opening words of section 1 of the Act. Section 1, however, is subject to the provisions of Schedule 1 where one finds, under the heading "Progressive Conditions", a paragraph 8. There it is provided that where a person has a progressive condition and, as a result, an impairment that has or has had an effect (even merely a trivial one) on his ability to carry out normal day-to-day activities (but where that effect is not or has not yet been more than trivial) that person shall nonetheless be taken to have a present impairment which does have a substantial adverse effect if the progressive condition is likely to result in his having an impairment which has a substantial and long term effect in the future - see 1995 Act section 53 (b); Schedule 1 para 8 and the Code of Practice for the Elimination of Discrimination etc., Annex 1 paras 6, 10 and 14. No doubt having regard to the medical evidence of Mr Bragg's hearing as "tending to deteriorate" and to "be slowly progressive" it was agreed between the parties before the hearing at the Tribunal that Mr Bragg fell within section 1 by way of the provisions as to progressive conditions. When, at points in the argument before us, Miss Tether on Mr Bragg's behalf was taxed with the possible effects of a progressive deterioration upon the safety of Mr Bragg as a driver, she replied more than once that the best and latest evidence was that Mr Bragg's hearing was stable and, indeed, had not got worse for several years. There was an express finding that his hearing had not got worse (since 1994). When that led to the comment that on that footing Mr Bragg was perhaps not disabled within the Act Miss Tether correctly replied that it had been conceded that he was. There is an obvious potential difficulty in Mr Bragg's simultaneously arguing, on the one hand, that he is disabled within the Act by reason (and by reason only) of his having a progressive condition and yet, on the other, asserting that his hearing has not got worse for years. Whilst, as we mentioned above, we do not see this as a point justifying allowing the appeal, we have been troubled as to how far, if at all, a party, having received the benefit of a concession, can thereafter, whilst still claiming the benefit of the concession, adduce evidence or assert in argument in a way tending to its contrary.

However, in the light of our determining to allow the appeal on the other grounds we did not feel it necessary to explore that particular point any further. On the three chief grounds that we have described we allow the appeal. This is not a case where we could be sure what the Tribunal's answers would have been or should have been had the defects we have mentioned been avoided. It is not, therefore, a case where we can substitute any decision of our own. Accordingly, despite the excellence of Miss Tether's argument, (which answered many other points raised by Mr Burns with which we have not felt it necessary to deal) we remit the matter to the Employment Tribunal. Given the unavoidable length of time that has and will yet occur before the matter can be reheard, we think it right that it should be remitted to a fresh Tribunal.