United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J QUIGLEY Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us, by way of a preliminary appeal, the appeal of Mr W J Smith in the matter W J Smith against Gallaher Ltd. Today we have had the advantage of being addressed by Mr Quigley under the ELAAS scheme on Mr Smith's behalf.
2. On 22 March 1999, Mr Smith launched an IT1 claiming "Unfair selection for redundancy and Disability Discrimination Act 1995". In his IT1 he said that

"On 19 June 1994 I had an accident at my place of work. I fell from ladders and suffered a broken collarbone and a severe blow to the head. I took 6 weeks off work to recover, then resumed my job. Training was given on all aspects of my work and I was even allocated a personal trainer to access my training needs. After a period of several weeks I had completed all the training my employers required me to undertake and I was deemed OK to work unsupervised. Reports were signed by myself and the Trainer which stated that I could undertake the tasks.

I have since my accident in 1994 suffered from a form of mental disability and an injury to my brain has been attributed to the fall I had in 1994, but this has never interfered with my capabilities to undertake my work or indeed ever caused me absences from work, in fact I have letters from the company congratulating me on my attendance record, but things began to change when selection for redundancies were introduced. The selection for redundancies went on length of service.

I claim that Senior Service [that is the cigarette brand that Gallaher's make] are in breach of the Disability Discrimination Act 1995."

3. Gallaher's on 12 April put in an IT3 and, concentrating on disability discrimination because that is the only side that seems to be relevant for today's consideration they say:-

"It is not denied that the Applicant has suffered or is suffering from a disability within the meaning of Disability Discrimination Act 1995;

The Respondents' decision to make he Applicant redundant was justified on the findings of his medical assessment."

There is only a little in the IT3 on the subject of disability discrimination.

4. On 1^st, 2^nd and 3^rd September 1999 there was a hearing at Manchester. Mr Smith was represented by his wife; the company was represented by Counsel. On 30 November 1999 the decision was sent to the parties. It was the decision of Mr A M Coventry and 2 members, Mr R Tatterfield and Mr B Leach. The decision of the Employment Tribunal was that the application failed and was dismissed.
5. On 1 December Mr Smith sought a review but it was declined on the ground that it had no prospect of success. On 2 January 2000 there was an informal Notice of Appeal put in by Mrs Paula Smith (Mr Smith's wife).
6. Looking at the decision itself, there are some passages, which need to be referred to to make sense of matters. There was a doctor's report that said of Mr Smith:-

"Despite the fact Wilf appears to be managing reasonably well within his present duties, it is my opinion that he would have considerable difficulties with learning certain new tasks.

He would be able to understand and retain the training required for simple tasks performed under supervision, such as sweeping floors or moving materials in open spaces.

He would not be capable of reliably retaining information for more complex tasks than this, particularly if he were to work in a new environment that he was unfamiliar with. In addition to this, having seen the proposed areas in which he would work and their complexity, I do not feel that he could safely work unsupervised in many of them.

I would also have considerable concerns regarding his fitness to safely climb ladders after my examination findings today."

7. All that is in the background of Gallaher's closing down the factory at Hyde in Cheshire, where Mr Smith had long worked. Indeed, in June 1999 the factory closed completely.
8. When the Tribunal came, after dealing very fully with unfair dismissal, to the subject of disability discrimination they dealt with it really quite briefly. In their last paragraph they say:-

"As to the provisions of the Disability Discrimination Act, we accept that, in the light of Clark –v- Novacold (supra) [and it is the Court of Appeal version of Clark and Novacold to which they are referring] the applicant received less favourable treatment in that by reason of his disability he failed to be re-deployed. However, we find, applying the provisions set out in the earlier paragraphs of this decision, that that treatment was justified for reasons which were both substantial and material (Section 5(1)(b) and 5(3)). The Tribunal is satisfied that the applicant was in no way singled out for different treatment and it was the normal practice to submit any employee for medical examination when the question of re-deployment was to be considered.

For completeness, we consider whether there were any reasonable adjustments, within the meaning of the Act, that should have been made by the Respondent Company and conclude that there were not. For all the above reasons, the Tribunal is unanimously of the opinion that the applicant's claims fail and are dismissed."

9. The doctors report, from which we have quoted a passage, does, of course, raise certain questions that it would be proper for the Tribunal to have considered; if Mr Smith could not work safely unsupervised, could some supervised role be found for him? If he could do a simple job such as sweeping floors or moving materials to open spaces, could not such a role be found for, even if only perhaps part-time? If he could not safely climb ladders, could a job not be found for him that did not require him to do so? The doctor had said that he did not feel that Mr Smith could work safely unsupervised in many of the proposed areas. But what about the remainder of the areas; could not a job be found that confined him to those more safe areas? The company may have been sympathetic, as the Tribunal found, but the question really was not whether it had been sympathetic but whether it had complied with the duty under Section 6 to make adjustments. It was not held that the company was not under any Section 6 duty. Does that very terse sentence "For completeness we consider whether there were any reasonable adjustments within the meaning of the Act that should have been made by the Respondent company and conclude that there were not" represent an adequate consideration of the employer's duty to make adjustments. What type of adjustments did the Tribunal have in mind and reject as being steps that were unnecessary to be taken? Did they not need to explain their decision more fully, if only to satisfy the Meek –v- City of Birmingham test that it is necessary to explain to a party why he has lost or why he has won.
10. We do not know what possibilities were put in front of the Tribunal as possible adjustments that needed to be made but even if particular examples, such as not going up ladders or having a part-time job sweeping and so on, were not in terms suggested as appropriate adjustments on Mr Smith's behalf below, one has to remember what Rule 9(1) of the Tribunal Rule says, namely:-

"The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and subject to paragraphs (2A), (2B), (2C), (2D) and (2E), shall otherwise conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings."

11. In other words, a Tribunal cannot repose, as many courts are entitled to do, on the fact that this or that point was not taken before it because they are expected to be "proactive" to a degree which is not common in other courts. If an employer leads evidence that an employee of almost 20 years service cannot, for example, go up a ladder (and especially, one might think, if that inability was caused by an accident whilst working for that very employer) and where the employee is without professional representation and claims to be suffering from some mental disability, it would surely be inappropriate for the Tribunal not to raise a question such as, "Could he not be found a job that did not require him to go up a ladder?" It might well therefore not be a sufficient answer, even if it turns out to be the answer that is given, that Mr and Mrs Smith did not in terms raise possible adjustments themselves. We see there to be an arguable error of law (and, of course, at this stage all we are concerned about is whether the error of law is arguable) in the almost laconic way in which the very difficult subject of adjustments under Section 6 was dealt with. Accordingly we direct a full hearing.
12. Mrs Smith has done a great job on her husband's behalf so far. However, she should see if, now the matter is going to a full hearing, whether professional assistance can be obtained in 2 ways; first of all, in converting what is at the moment a very informal Notice of Appeal into to a more formal one. Secondly, to see if it is possible to obtain professional representation at the hearing itself. Subject to what Mr Quigley says on the subject, we would propose to adjourn the question of Chairman's Notes generally with liberty to either side to restore it so that it can be restored first of all after the question of amendment to the Notice of Appeal has been fully considered and, secondly, so that the arguments of both sides can be entertained on the subject. If the parties require an oral directions hearing on the subject of Chairman's Notes, well then, that doubtless can be arranged. We would hope that such a request, if any, as is made for Chairman's Notes could be dealt with instead by way of written application marked for the President, so that the parties would avoid the cost and delays of an oral hearing. We direct a full hearing and we adjourn the question of Chairman's Notes. However, we have not heard Mr Quigley on that and he might persuade us otherwise, but subject to that persuasion, mark it 2 hours and category B. The Notice of Appeal is to be amended within 14 days of today.