United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BOWERS QC (COUNSEL) (Instructed by) Messrs Leo Abse & Cohen 40 Churchill Way Cardiff CF1 4SS
For the Respondent	MR R ALLEN QC (COUNSEL) (Instructed by) Messrs Eversheds Fitzalan House Fitzalan Road Cardiff CF2 1XZ


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal from the unanimous decision of an Employment Tribunal held at Cardiff on 6th March and 1st April 1998 whereby they dismissed the Applicant's complaint of unfair dismissal and unlawful discrimination under the Disability Discrimination Act 1995.

1. The Applicant, Mrs Stevens had been employed by JPM International Ltd, the Employers, from 9th January 1995 until 26th June 1997 when she was dismissed on the grounds of ill health and absence. She had been employed as a production operative. She went off sick on 10th October 1996 and never returned to her duties. Under the sick pay arrangements she was fully paid until March 1997 and then was on half pay until 30th April 1997. She is unquestionably disabled, suffering a problem which affects her right arm and shoulder which interferes with her ability to make use of her right upper limb. There is also no doubt, as was accepted by the parties before the Employment Tribunal, that she was incapable for the foreseeable future of returning to carry out her job as a production operative which involved attaching components to electrical transformers and require mobility in both upper limbs.
2. There is no appeal from the conclusion of the Employment Tribunal that she was not unfairly dismissed. The appeal is concerned only with the Tribunal's rejection of her complaint under the Disability and Discrimination Act 1995. In paragraph 8 of their decision the Tribunal record the fact:

"A further 6 months sickness note was submitted from 23rd May 1997"

and in paragraph 17 they said

"Further such training and experience as the Applicant may have had would have needed to be upgraded and an enhanced deal with such things as e-mail and there is a need for the position to be filled as soon as possible"

and in paragraph 18

"the Applicant would have been unable to attend for a period of approximately 5 months at the earliest, following the Respondents' receipt of the sickness certificate."

3. The 5 months' calculation is based upon the assumption that the sickness note was for 6 months submitted on 23rd May and the 5-month period they are referring to is the position as at the 26th June.
4. The structure of the Tribunal's decision is that they deal with agreed and other facts that they have found between paragraphs 1-20. In paragraph 21 they set out the arguments for the Respondents and in paragraphs 22 and 23 they set out the arguments for the Applicant. In paragraphs 24 and 25 they direct themselves as to the law and between paragraphs 26-30 they deal with their findings in relation to unfair dismissal. The conclusions under the Disability and Discrimination Act complaint are to be found in paragraphs 31 and 32 which will be incorporated into this Judgment, although I will not read them now.
5. The first point that can be made is that the two paragraphs dealing with the complaint under the Disability and Discrimination Act are brief and that the Employment Tribunal have not overtly apparently, drawn a distinction between the two types of complaint that were being made, namely a complaint under Section 5.1 of the Act and the second complaint under Section 5.2. Further, it must be pointed out that the Employment Tribunal would not, having regard to the dates of the hearing, have had access to a decision of the Employment Appeal Tribunal in the case of Morse -v- Wiltshire County Council [1998] ICR 1023, nor would they have had access to a very recent decision of the Court of Appeal in Clark -v- Novacold [1999] IRLR P.318.
6. Essentially, the Morse decision suggests that where there is a complaint under Section 5.2 which requires the Employment Tribunal to have regard to the duty of an Employer to make adjustments under Section 6 the correct sequence of events is for the Tribunal, before turning to the question of justification under Section 5.2, to make determinations as to the reasonableness of the adjustments which have to be made, if any, under Section 6. As has been pointed out in subsequent decisions, this is not just a question of a routine which must be followed for the sake of procedure, it is an important step for Employment Tribunals to take because it will help them to elucidate the issues which arise in a case such as this and will enable them to focus on the correct questions before they turn to the question of justification. As I have indicated, the Employment Tribunal are not to be criticised by this Court for their failure to follow the Act in the way suggested by this Court, because they did not have the advantage of the judgment.
7. The importance of the Clark -v- Novacold decision was that the Court of Appeal have helpfully indicated that the claims under Section 5.1 and 5.2 are quite distinct and as we read their decision, they are indicating that separate consideration should be given to the complaints under each head, because they involve different reasoning processes. They endorse what was said in the Morse case, so far as a complaint under Section 5.2 is concerned.
8. It is against that background that we turn to the submissions of the parties which have been forcefully made by two distinguished Counsel. In one sense that has made our task easier. In another sense it has made our task more difficult because the case has been fully and properly argued by both sides and our minds have changed from time to time during the course of the hearing as will happen in any well-argued appeal.
9. On behalf of the Appellant, the essential points made by Mr Bowers QC were these. Firstly, that the approach and decision of the Employment Tribunal as evidenced by paragraphs 31 and 32 of the decision were too sparse in their findings and reasonings to indicate that they had properly addressed the issues before them. Secondly, that the Employment Tribunal have failed adequately or at all to distinguish between the discrimination claim under Section 5(1) which relates to her dismissal and the discrimination claim she was making under Section 5(2) which related to the attempts, she says, should have been made to retain her in employment once she had become newly disabled, possibly, as a result of the work that she had been doing for her employers. Thirdly, the two paragraphs indicate that the Employment Tribunal have not approached the test objectively, but have rather accepted evidence from the Employers without subjecting it to their own reasoning process. Fourthly, the Employment Tribunal have failed to identify precisely which parts of the Code of Practice they consider to be relevant, nor have they indicated how they deal with the case as it was put in the written closing submissions of the Applicant, so that she can genuinely say at the end of the day, that she does not know why she lost on the points which were being made.
10. On behalf of the Employers, in an able and forceful submission, Mr Allen submitted to us that on analysis, the Tribunal had done enough; that the real question at issue was dealt with by the Employment Tribunal; the real issue between the parties on the Section 5.2 case, related to the potentiality of an alternative job within the organisation, namely a reception job which involved working the telephone. He submitted that the Tribunal's conclusion that the Applicant did not have the required qualifications for that position, and even if she did, she would not have been able to have started soon enough for the commercial needs of the Employers, dealt with the issues between the parties and was a finding which they were entitled to arrive at on the basis of the evidence before them. We were referred to particular passages of the parties' written closing submissions, there being no notes of evidence ordered in this case.
11. We fully accept that the Morse decision cannot be regarded as laying down some kind of ritual mantra which must be observed by every Employment Tribunal in every case. There may well be cases where it is simply not required for the Employment Tribunal to go through the sequence of events indicated in that authority. However, we have been persuaded in this case that the Employment Tribunal has not properly or adequately dealt with the case which was advanced before it on behalf of the Applicant/Appellant. In our judgment, the Employment Tribunal should:

• have separately identified the claim under Section 5.2;

• have identified precisely what was being said on behalf of the Appellant in relation to it;

• have examined the question of the adjustments which could or should have been made;

• have identified the paragraphs of the Code of Practice which it considered to be relevant to the issues raised by the parties and to have arrived at their conclusions on the question of the reasonableness of the adjustments.

12. Then, and only then should they have turned to the question of justification. We are not persuaded that it would have been an empty or futile step to have taken in this case, on the basis that somehow or another, on the evidence as it was found by the Employment Tribunal, the Applicant's case would have been bound to fail. It seems to us that questions properly arise as to

• whether the Employers have properly considered what adjustments were reasonable;

• whether the Employers have made unjustified assumptions about the Applicant's lack of capacity to fulfil the requirements of the job;

• whether the requirements of the job could be adjusted to accommodate her abilities; and finally

• whether there was proper medical evidence which was accessible to them which would have enabled them to have concluded that she was not going to be fit to undertake a trial as a receptionist in the reasonably near future.

13. It is of course, most unfortunate that the Employment Tribunal itself has relied on, to the extent that it did, the medical certificate referred to in paragraph 8 of its decision, because it seems to us very clear from looking at that document that making allowances for doctor's handwriting it was a certificate certifying that she would be unfit for work for a period of 6 weeks and not 6 months. Accordingly, their statement in paragraph 18, that the Applicant would have been unable to attend for a period of approximately 5 months was based on a misconception. Although the sick note was referred to in the IT.3 and it was asserted that it was for a period of 6 months, it is notable that in none of the witness statements of the witnesses called on behalf of the Employers was any reference made to that certificate or to the fact that she was certificated for a period of 6 months from the end of May. If this decision was allowed to stand as it is, quite apart from the other points to which we have referred, we think that the Applicant could legitimately say that the whole of the decision of the Tribunal was based on a misunderstanding of what the medical position was.
14. Mr Allen has laid particular stress on certain passages of the Respondent's written closing submission which indicate that there was, in the cross-examination of the Applicant, an admission by her which might have gone to support the findings of the Tribunal. We think that his submission is, to some extent, turning round the obligation which there is upon an Employer to satisfy itself as to whether there is medical evidence to justify its conclusion, and placing the burden, rather, on the Employee when the Employee herself may not know what the state of play is medically. But we do not wish to make any further comments about the evidence at this time because it seems to us that we are certainly not in a position to draw the inference that there has been unlawful discrimination in this case. It seems to us that the discrimination issue must go back to be determined by a fresh Employment Tribunal. It seems to us that it would not be sensible for the Tribunal to be the same as that before, but it does seem to us sensible that the next Tribunal should have paragraphs 1-30 of the previous Tribunal's decision because they can then start from that basis. That will not contain the offending paragraphs, paragraphs 31 and 32, but we will be willing to hear argument as to whether it would be sensible for a new Tribunal to have regard at all to this earlier decision. The reason why I think it would be fair that they should have it is because, as Mr Allen pointed out, there is to some extent, an overlap between the unfair dismissal claim and the claim for unlawful discrimination, at any rate, in relation to Section 5(1) and since there is no appeal against the finding of unfair dismissal, it seems to us that they are entitled to see that part of the decision in any event.
15. Accordingly, the appeal will be allowed and the matter remitted back for re-hearing by another freshly constituted Tribunal.
16. Mr Allen has asked for leave to appeal. He indicates in the course of his short submission which was appropriately made, that he thought that this was a case which was suitable for the Court of Appeal. In particular, in relation to the possible obligation of the Employer to obtain medical evidence in a situation such as this case. In our view, there is nothing in the Judgment that we have just given on an ex tempora basis, which was intended to lay down any new principles of law. Rather, it was seeking to apply the law as we understand it to be from the Morse decision and from Clark -v- Novacold. It seems to us that it is desirable that the re-hearing should take place as soon as possible. If the Court of Appeal consider this is a matter which they should look at, well then of course, they themselves will grant leave, although for our part, we do not consider there is any particular issue of law which falls for consideration.