At the Tribunal | |
Before
THE HONOURABLE LORD JOHNSTON
MR G R CARTER
MR R P THOMSON
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | Mr R Pilkington, Advocate Instructed by - Messrs MacPhail Lawrence Partnership Solicitors 65 Bath Street GLASGOW G2 2DD |
For the Respondents | Mr K D B McLew, Solicitor Of - Messrs Holmes MacKillop Solicitors 109 Douglas Street Blythswood Square GLASGOW G2 4HB |
LORD JOHNSTON:
"1.) The respondents are a limited company, engaged in the timber processing trade and employing around 40 employees..
2.) The applicant was employed as a machine operator. He operated a "chipper", which was a machine equipped to reduce scrap timber to a chip material, which has a variety of uses. Ordinarily, the machine is capable of operation by itself, but may jam up if two or more pieces of material feed into the equipment at the same time. In these circumstances, it was the applicant's responsibility to pull the pieces of timber out of the mouth of the equipment. This could be a heavy and demanding task, requiring physical strength and dexterity.
3.) In December of 1990, the applicant suffered an accident at work. Whilst changing a blade on the equipment, the blade fell onto the applicants left hand, causing substantial tissue injury to the applicant's thumb and palm. There was no damage to the bone, but the two tendons in the thumb were severed. The applicant was taken to hospital where initially the injuries were sutured.
4.) The applicant's subsequent medical history is contained in a medical report (production A4). It became clear by early February that the applicants thumb function was impaired. On February 5th, he was admitted to hospital again and treated as a day patient. Under general anaesthetic, a substitute tendon was taken from a finger and transferred to the thumb. He was allowed home in a plaster cast. By 30th March, it was clear that the tendon transfer had worked but there was "weakness and discomfort in relation to the surgical scars". By 20th April, the applicant was still having problems with his hand and was "apprehensive about his ability to return to his usual heavy work". By 15th June, the hand was described as "more robust and less uncomfortable. There was evident stiffness in the thumb which was restricting the movement, but not detracting from the power of the hand." The applicant was seen again by his specialist on 12 July, when the applicant described how "he still has difficulty with left-hand function when attempting to garden, when the hand became generally sore, swollen with activity, and exhibited sensitivity to the cold. He consumed on average two to four moderate analgesic eight tablets for his hand discomfort".
5.) This medical report terminated in a conclusion as follows:
CONCLUSION
This unfortunate man suffered a deeply incised injury to his non-dominant left hand at work when a blade in a chopping machine caught in his first web space. Either at the time of injury or by subsequent attrition, his long thumb extensor tendon was noted to be disrupted. This required reconstructive surgery and a four week period of plaster immobilisation.
Some two months following surgery there was evidence of a dystrophic process possibly all secondary to disuse but which slowed his progress and required fuller rehabilitative input. This has strengthened his hand.
The loss of his previous employment around April 99 prevents a graded return to duties which would demonstrate the true stage of his rehabilitation. Employers are encouraged to try to make these facilities available to their workforce returning after a spell of sickness absence. It is disappointing that this is not available to him.
I would expect further strengthening and adaptation to the new situation over a further few months allowing return to moderately heavy work. He continues under clinic review but his maximum recovery should be evident over the next 3 to 6 months.
He feels that over the longer term he will require to find work again of a manual nature. Input from vocational assessors may allow maximisation of his situation.
I would not anticipate the development of post traumatic degenerative arthritis following this injury.
Hedley J Easter
6.) We heard at length from the applicant as to the nature and extent of the effect of his injuries on his day to day activities. He clearly found these very frustrating. Although he did not have any particular hobbies, he was an active individual, and did not like to be beholden to anyone. He described the problems he had around the house, including an inability to chop wood for the fire, carry shopping, opened tins, and operate gardening equipment, including a lawn mower. Before the operation, whilst the thumb was immobile, it was standing proud from his hand which he found very difficult to cope with. After the operation, partial mobility had been restored, but he was still unable to bring his thumb across to contract with the upper part of his hand. He was therefore unable to grip things securely and was constantly afraid of, for example, dropping crockery. Inevitably, he favoured his right hand as far as possible. He found that if he did try to use his left hand for any significant period of time, it became painful and swollen. It did not seem to the tribunal that the applicant was exaggerating any part of this evidence.
7.) Obviously, the applicant was unable to return to work after the accident. After the initial treatment, the applicant was clearly of the view that all would be well after a few weeks. Even at the time of the operation, the applicant believed that recovery would be fairly rapid. However, recovery was much slower than he anticipated, as can be seen from the conclusion of the medical report. On 16th June 1999 he was examined for industrial injury disablement benefit and at that stage, he was registered as disabled from 7th April, 1999 to 6th October 1999 on the basis of a "loss of faculty." This was described as impaired manual dexterity, grip in left hand weakened, persistent pain in hand."
8.) In addition to seeing his specialist, the applicant was consulting his general practitioner, who was responsible for issuing his sickness certificates. Initially, the applicant was signed off for 14 days, then for a number of single months at a time, and finally, in 19th March 99 for two months. The respondents became frustrated by this. Like the applicant, they did not see this as a long-term injury and were anticipating a reasonably prompt return to work. They were prepared to accept quite a lengthy absence, so long as they knew when the applicant was returning, so that they could make temporary arrangements to cover his job. Unfortunately, the applicant was never in a position to say when he could return. He relied upon his general practitioner for advice, and his doctor simply could not give a return date in view of the continuing difficulties.
9). We believe that the applicant did not properly communicate these problems to the respondents. He is a somewhat taciturn individual, and may have some difficulty in conversation in formal settings. We accept the evidence, particularly of Mr Ramage, that the applicant was firmly of the view that his general practitioner had the final say in these matters and that if his general practitioner did not wish him to return to work, that was an end of the matter. The respondents might be criticised for not obtaining their own independent medical report on the nature and extent of these injuries. However, we accept that they believed that the applicant was unwilling to co-operate in such a report, and that this belief was justified in view of the attitude he was taking. The fact remains that the applicants (sic) were largely unaware of the applicant's difficulties, regarded the injury as relatively minor, and believed that the applicant's time off work was being "strung out" by the applicant.
10). The applicant met with the respondents on April 16th 1999. At this meeting, the respondents explained that the applicant's position was a key one within the organisation, and that it required to be filled. The applicant was still unable to give a realistic indication of a date for his return to work. The respondents thereafter took legal advice, and subsequently wrote to the applicant on 20th April terminating his employment."
"However, section 5 goes on to define the word "discrimination" by an employer as "for a reason which relates to a disabled person's disability, he treats him less favourably than he treats or would treat others." In our view, disability must have the same meaning throughout the Act. It therefore follows, that for an employer to dismiss for a reason related to a "disability", must mean disability under the Act, not any lesser disability. The respondents did not know that the applicant was disabled under the Act. We considered carefully whether they ought to have known, or should have taken such steps as would result in them knowing, for example, instructing a specialist report on their own initiative. On the evidence, we have come to the conclusion that they acted reasonably in the circumstances where the applicant himself was not in a position to advise as to the long-term nature of the problem. It seems to us that we have to be able to identify something which ought have put the respondents on notice, and we cannot see any such circumstance in the evidence. (O'Neill v Sim)
If they did not know that the applicant was disabled under the Act, then they cannot, in our view, be held to have dismissed him for a reason which relates to such disability, since this is to imply knowledge of that disability. The respondents therefore cannot be said to have discriminated against the applicant in terms of section 5."
"It is not therefore strictly necessary for us to deal with the argument of justification put forward by Mr McLew. However, we would have to say that, having regard to the terms of paragraph 6.21 of the code of guidance, it was clear to us on the evidence that the ability of the applicant to move large pieces of timber about was the main function of his job; and that there would be no vacant post elsewhere in the premises suitable in the circumstances. Clearly, safety in a sawmill is a paramount consideration, and we would not have considered it reasonable to expect the employer to make adjustments to take account of the disability, where no light duties were available. We have considerable sympathy for the applicant who has suffered much, but in the circumstances we have described, the application falls to be dismissed."
"1(1)…a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."
"4(2) It is unlawful for an employer to discriminate against a disabled person whom he employs …..
(d) by dismissing him, or subjecting him to any other detriment"
"5(1)… an employer discriminates against a disabled person if –
(a) for a reason which relates to the disabled person's 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 in question is justified"
2….. 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 disabled person; and
(b) he cannot show that his failure to comply with that duty is justified."
Section 6 deals with the duties of an employer to make adjustments and subsection 6 is in the following terms:
"(6) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –
(b) in any case, that that person has a disability…."
"an impairment is taken to affect the ability of the person concerned to carry out normal day to day activities only if it affects one of the following – mobility, manual dexterity, physical co-ordination……"
"There is nothing in the statutory language that requires that the relationship between the disability and the treatment should be judged subjectively through the eyes of the employer. The correct test is the objective one of whether the relationship exists, not whether the employer knew of it. This requires employers to pause to consider whether the reason for some dismissal that they have in mind might relate to disability and, if it might, to reflect on the Act and the Code of Practice before dismissing. Unless the test is objective, there will be difficulties with credible and honest yet ignorant or obtuse employers who fail to recognise or acknowledge the obvious."