United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P K THOMPSON Solicitor Messrs Dibb Lupton Allsop Solicitors Victoria Square House Victoria Square Birmingham B2 4DL


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal from the decision of an employment tribunal sitting at Leeds whose reserved extended reasons were promulgated on 21 September 1999. The tribunal held that the appellants had discriminated against the respondent contrary to the Disability Discrimination Act 1995 and held that her claim for holiday pay failed. That claim had been brought under a separate originating application which had been consolidated with the application under the Disability Discrimination Act.
2. The respondent is now 45 years old. She had been a customer service assistant employed by the appellants from 1987 until 12 February 1999 when she was dismissed on the grounds of incapacity. She developed carpal tunnel syndrome as a result of which she could not operate keyboards or handle cash, was off work from about October 1997 and had a number of operations. In August 1998 there was some suggestion that there was a substantial functional element in her symptoms but she was nonetheless declared unfit for work. The tribunal criticised the appellants strongly for having dealt with Mrs Bartlett's case without any reference whatsoever to their obligations under the Disability Discrimination Act 1995. Their disapproval may have affected the way in which they approached the case.
3. As the tribunal records, the appellants offered Mrs Bartlett a job as a 'meeter and greeter' to talk to customers when they entered the branch and deal with their problems. This was a job which the appellants needed to have done but the respondent refused even to try out the work and insisted that she would not come back to any job except her old job and would not come back to that until she was fully fit.
4. The criticism made of the appellants by the tribunal was that they should have gone on to consider the possibility that technical advances in the area of voice activated screens and voice recognition software could have enabled her to carry out her old job.
5. In our judgment, there are points which are reasonably arguable. First is that the tribunal may have fallen into error by failing to make an adequate distinction between justification under s.5 (1) of the 1995 act and justification under s.5 (2). They decided that it was not realistic to consider those questions separately but there are different considerations. It is arguable that the tribunal confused themselves by considering them together. Second, it seems to us reasonably arguable that in the light of the evidence the tribunal should have concluded that the employers either made reasonable adjustments or were justified in not making further adjustments because of the attitude of the respondent in relation to the offer of alternative employment. So that for those reasons, we shall allow the appeal to proceed to a full hearing.