United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS H MOUNTFIELD (of Counsel) Instructed By: Mr K Woodhouse Sheffield Law Centre Waverly House 10 Joiner Street Sheffield S3 8GW
For the Respondents	MR I MACCABE (of Counsel) Instructed By: Mr D Wagstaff Messrs David Wagstaff & Co Solicitors 19 The Avenue March Cambridgeshire PE15 9PS


 


MR. JUSTICE HOLLAND:

Introduction

1. From the 6^th February 1989 to the 4^th February 1997 Mr. Arboshe was employed by the Respondents as a night bus driver. By way of an IT1 dated the 18^th March 1997 he complained of unfair dismissal. In due course this was supplemented by a further complaint: disability discrimination. Both complaints were heard by an Industrial Tribunal sitting at Stratford on the 23^rd March 1998. By a decision sent to the parties on the 1^st April 1998, accompanied by Extended Reasons, both complaints were dismissed. Mr. Arboshe appealed. At a Preliminary Hearing this Tribunal dismissed so much of his appeal as related to unfair dismissal; the inter parties hearing before us has been solely concerned with the dismissal of his complaint of disability discrimination.

The Facts

2. As found by the Industrial Tribunal, the facts were as follows. In November 1996 Mr. Arboshe was forced to take sick leave; a serious diabetic condition was diagnosed; and he eventually became dependent on insulin. The Respondents followed up his absence from work and on three occasions Mr. Arboshe was interviewed by his Operations Manager, Mr. Webster, so as to ascertain his progress and prospects. On each occasion Mr. Arboshe was accompanied by his trade union representative. By the second such occasion, that of the 22^nd January 1997, the insulin dependence had been established so that Mr. Webster was forced to tell him that which was inevitable: his Public Carriage Vehicle (PCV) Licence would be withdrawn so that he would have to stop working as a bus driver. Per paragraph 6 of the Reasons: "It was indicated that consideration would be given to the alternative positions which might be available to him. As the request of the union, that further consideration was postponed until 4^th February 1997 .....". In the event there was the third interview on that date, again with a Union representative present. The findings of the Tribunal were:

"7. By the date of that meeting Mr. Arboshe had been absent sick for 91 days and Mr Webster explained that sick leave could be extended only if there was a realistic chance of a return to work. Since it was apparent that Mr. Arboshe could not drive a bus, Mr Webster informed him of the vacancies then existing. One was a clerical post at the company's head office in Ilford, the other was a bus conductor. Mr. Arboshe's first language is not English and, although he has a very good command of the language, he did not consider that his linguistic skills were up to a clerical post. Mr. Arboshe had all the skills necessary to be a bus conductor but he turned down that possibility also. The reason he gave was that he did not feel well enough to carry out the duties of the post of conductor. It was, however, Mr Webster's perception that there existed another reason prompting the rejection of the offer. That was that the conductor post would pay some £85 gross per week less than the existing post of night bus operator.

8. Following the rejection of the only two alternatives available, Mr Webster informed Mr. Arboshe that in the circumstances he had no alternative but to terminate his contract on medical grounds with effect from 5^th February 1997, with eight weeks notice being paid in lieu. There was then explained to Mr. Arboshe his right to appeal the decision to dismiss."

3. In the event Mr. Arboshe did not appeal but there was a subsequent exchange of correspondence between the Union and the Respondents. On the 24^th March 1997 the Union wrote on behalf of Mr. Arboshe:

"Whilst I note that an Industrial Tribunal application has been lodged on behalf of Mr. Arboshe, this is purely in respect of time limits.

Mr. Arboshe was dismissed on medical grounds (Diabetes) on the 4^th February last. He was offered an alternative job as a conductor, which he refused. At the time he was still feeling unwell and his insulin treatment had not reached any equilibrium. Had the offer been made when Mr. Arboshe was feeling better, he feels that he would have accepted the job.

Whilst I am aware that Mr. Arboshe did not exercise his right of appeal at the time, I would ask that consideration be given to a review of Mr. Arboshe's case in order that he can be given further opportunity to discuss the alternative employment of a conductor.

I am given to understand that Mr. Arboshe will be out of the country until 9^th May next."

4. By a letter of the 27^th March the Respondents replied:

"Currently a vacancy does exist at Bow Garage therefore I suggest that Mr. Arboshe contacts Mr Webster, Operations Manager if he wishes to be considered for employment as a conductor."

5. Nothing further was heard from Mr. Arboshe.

The Tribunal

6. The Tribunal approached the complaint of disability discrimination "upon the unchallenged assumption that insulin dependent diabetes is a disability falling within the Act" that is, the Disability Discrimination Act 1995. It noted Mr. Arboshe's case:

"13 Mr. Arboshe acknowledges that his diabetic condition precluded his employment as a bus driver. His case, in relation to his disability, is that the duty of the employer to make adjustments should have required him to extend the period of sick leave for a period of six months or, alternatively, to propose a suspension of the contract for six months. That would have given him time to adjust to such limitations as would exist by virtue of his insulin dependency and to make a proper and measured appreciation of the employment alternatives open to him."

7. It then reached a decision:

14 We have considerable sympathy for Mr. Arboshe who, due to the onset of diabetes, has been prevented from carrying out a driving job, an activity which has formed the greater part of his working life. Both in relation to his responsibilities under the Disability Discrimination Act and in exercise of his statutory duty not to dismiss unfairly, the employer should consider the other options to dismissal open to him. Mr. Webster did that and he gave Mr. Arboshe notice of that fact that loss of the driving job was inevitable but that other employment options would be considered. Mr. Arboshe had the assistance of his union representative and we are satisfied that, if asked, Mr. Webster would have made more time available. He had no reason to doubt that Mr. Arboshe's decision, refusing both of the two alternatives put to him, was a settled one and indeed he believed that it owed as much to the loss of pay that would be entailed as to any perceived physical limitations. Mr. Webster's stance can be seen to be justified by Mr. Arboshe's failure to take advantage of the opportunity to appeal and his failure to respond to a subsequent invitation that a vacancy as a bus conductor remained open to him. This was a fair dismissal by reason of capability and Mr. Arboshe was dealt with no less favourably than would have been an employee in a comparable position but who did not have a disability. Accordingly both complaints are dismissed."

The Appeal

8. Section 5(1) Disability Discrimination Act 1995 provides:

"(1) For the purposes of this Part, an employer discriminates against a disabled person if -

(a) 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

(b) he cannot show that the treatment is justified."

9. In directing itself as to the law, the Tribunal held that the comparator appropriate for the application of Section 5(1) to the instant situation was "an employee on long term sick absence who was not disabled." In the period since the decision, authoritative guidance as to an appropriate comparator has become available: Clark v TDG Ltd t/a Novacold (1999) 1RLR 318, a Court of Appeal decision. From such, it is apparent (as is conceded by the Respondents) that the Tribunal misdirected itself. The true comparator for the purposes of Section 5(1) was a bus driver who was neither disabled nor on long term sick absence. It necessarily follows that an error of law can be discerned in the Reasons for the Tribunal's decision and that there is a basis for allowing the appeal and for remitting the matter to the same or a differently constituted Tribunal for a rehearing of the disability discrimination complaint. This latter course has been urged upon us by Miss Mountfield, counsel for Mr. Artboshe. Mr. Maccabe, counsel for the Respondents, contends that, the error of law notwithstanding, we can and should dismiss the appeal. On the facts a Tribunal correctly directing itself as to law would have been bound to dismiss the complaint.

This Tribunal

10. In Clark v TDG Ltd t/a Novacold, op. cit., Mummery L.J. in speaking of the Act, said "And it is without doubt an unusually complex piece of legislation which poses novel questions of interpretation." Happily, as we think, the issues raised by this case are in short compass and pose no novel questions of interpretation. On our analysis the interplay between Act and facts can be traced:

a. By reference to Section 5(1) the Respondents did discriminate against Mr. Arboshe by comparison with the working bus driver: he was dismissed.

b. Can the Respondents show that that discriminatory treatment was justified per Section 5(1)(b)? Section 5(3) is pertinent: "..... for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial." Turning to the facts, to the extent that that treatment amounted to stopping Mr. Arboshe working as a bus driver, justification is readily available. It is not in dispute that his condition necessarily means the loss of his PCV licence. That is however not the end of matter. There then comes into play:

"Section 6(1) Where -

(a) any arrangements made by or on behalf of an employer .....

place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of an employer to take such steps as it is reasonable in all circumstances of the case, for him to take in order to prevent the arrangements ..... having that effect.

(2) Subsection 1(a) applies only in relation to -

(a) arrangements for determining to whom employment should be offered ....."

It follows that unless the Respondents have taken such steps as are reasonable in all the circumstances of the case to mitigate the impact of the disability based loss of his PCV licence, they will not be able fully to justify the discriminatory treatment. By contrast, if they can show that they have fulfilled the Section 6 duty then they can show justification for the purposes of Section 5(1). Given the 'belt and braces' structure of the Act, the same result flows from:

"Section 5(2)For the purposes of this Part, an employer also discriminates against a disabled person if -

(a) he fails to comply with a Section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that its failure to comply with that duty is justified."

c. By this route the short point at the heart of the case is as to whether the Respondents can demonstrate fulfilment of their Section 6 duty; and the nub of the appeal is as to whether that point has been or can be resolved on the Tribunal's findings of fact - or whether remission for a rehearing is necessary. Before departing from the law we have not overlooked but see no point in reciting Section 5(4), (5) and Section 6(3). (4), (5) and (7). Suffice it to reiterate that the burden of proof has to be borne by the Respondents; if fulfilled then prima facie there is justification that is "material to the circumstances of the particular case and substantial."

Conclusions

11. Having thus identified the nub of this appeal we are satisfied that we should dismiss it and uphold the Industrial Tribunal's dismissal of the complaint of disability discrimination. Our reasons are as follows. The facts as found show that on the 22^nd January 1997 the Respondents by Mr. Webster evinced a wish to explore the possibility of Mr. Arboshe transferring to fill an existing vacancy (cf, Section 6(3)(c)). Having deferred this exercise at the request of the Union to the 4^th February, two vacancies are then identified, a clerical post and a bus conductor's job. Those having then been turned down, the latter job is offered again at the request of the Union - and not in terms rejected. Should Mr. Webster have done more in order to fulfil the Respondent's Section 6 duty? It is apparent that on the 4^th February Mr. Arboshe professed to be not well enough to take up a bus conductor's job and it was argued on his behalf that that should have triggered some interim accommodation. However if there was such a problem that appears to have been short lived (hence the Union's letter of the 24^th March) and in any event there is an inferential finding by the Tribunal (see paragraph 14 cited above) that the real reason for the failure to take up the offer of a job as a bus conductor was financial. On the basis of those facts the Tribunal appear to have found that the Section 6 duty was fulfilled. We say 'appear': the finding is not explicit but the Tribunal noted the section in paragraph 11 and arguably were holding it to have been fulfilled when asserting in paragraph 14 that the Respondents had to consider other options to dismissal and did so. In the judgment of this Tribunal any such finding (if made) was wholly justifiable - and indeed inevitable. As was observed in argument, had Mr. Arboshe taken the job as a bus conductor there would have been no disability discrimination (and, for that matter, no dismissal); the position is the same on the basis of sincere offers of that job not taken up for financial reasons. Given a finding against Mr. Arboshe on this crucial issue that is either upheld or inevitable, then there is no good reason to allow the appeal and remit for re-hearing.

Post Script

12. We make no apologies for seeking to cut through the forensic thicket that is offered by the Act. The messianic message of the latter - that it behoves employers to be pro-active in avoiding discrimination against the disabled - has encouraged sophisticated and discursive drafting that may tend to slow rather than advance progress. The route to a decision ought to be clear and direct rather than circuitous.