United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P K THOMPSON Solicitor Messrs Dipp Lupton Allsop Solicitors Victoria Square House Victoria Square Birmingham B2 4DL
For the Respondent	MR COLIN MOORE Wakefield Centre for Unemployed The Resource Centre Thorne Hill Street Wakefield WF1 1NL


 


JUDGE J ALTMAN

1. This is an appeal from the decision of the Employment Tribunal sitting in Leeds on 1 September 1999. The Respondent before the Employment Tribunal appeals on the findings of the Tribunal as to the application of the Disability Discrimination Act 1995 to the facts as found. By Order of 5 April 2000 leave was given for the matter to proceed and there was some analysis of the issues by the Employment Appeal Tribunal.
2. We are today adjourning this appeal most reluctantly, because it causes delay, uncertainty, inconvenience and additional cost to parties when that course is taken, but it seems right for us to do so for the following reasons. The Respondent is represented by the Wakefield Centre for the Unemployed. They have not attended today, and have written by letter dated 21 November 2000 asking in simple terms for us to uphold the decision of the Employment Tribunal. We suspect that resources will play some part in their not being here.
3. The main hearing was followed by a remedies hearing. Notes of evidence were requested and the learned Chairman helpfully provided notes of evidence which were initially dated 26 July 1999. But from the identification of the representative as Mr Broughton, and from the content of those notes, it appears likely that they relate to the remedies hearing, and the initial decision of the Employment Tribunal was promulgated on 21 September 1999 in advance of the remedies hearing. On the other hand, we note that although it was dated 1 September 1999, it was a reserved decision.
4. We are concerned about proceeding today, because the main plank of the appeal is that once the Employment Tribunal had found, as they did in paragraph 32, that the offer of alternative employment, as a "meeter and greeter", was a reasonable adjustment within the terms of section 6 of the Disability Discrimination Act, then there was then no further legal obligation, as a matter of law, to seek other alternative employment to offer the Respondent.
5. However in paragraph 32 the Tribunal goes on, whilst expressing surprise at the Respondent's willingness to at least try the new role, to look at other possibilities as illustrating their finding that there had not been the offer of other alternative employment as a reasonable adjustment. In those circumstances the proposition of law advanced to us finds so little reflection in the decision of the Employment Tribunal that we are really concerned to enquire if this point of law was in fact canvassed as a point of law before the Employment Tribunal. True it is, that in paragraph 4, in the latter part of that paragraph, the decision of the Tribunal discloses that the Respondents denied that reasonable adjustments had not been made, and that if they were wrong about this, then a failure to comply with section 6 was justified. But it is a matter of some uncertainty to us as to whether the proposition of law that, as it were, one offer accepted as a reasonable adjustment complies with the legal obligation, was canvassed before the Employment Tribunal.
6. We are indebted to Mr Thompson for himself seeking to identify the way in which the matter was put before the Employment Tribunal, but because of the absence, both of notes of the initial hearing, possibly through some administrative misunderstanding, and of the Respondent, we feel that this matter should really be canvassed, before a view is taken one way or the other at this level.
7. Accordingly we adjourn this matter with a direction that the Chairman be asked to provide his notes of evidence of all the hearings of this matter before him. Secondly, we order that the bundle of papers before the Employment Appeal Tribunal should include the decision on the remedies hearing, and thirdly, that insofar as the Chairman is able to identify from his notes, he be asked to give any assistance he can give on the issue as to whether the issue of law, which we have identified, was taken before him. Fourthly, the Respondent herself is given leave to submit any observation on that particular point. Once that is done, I would anticipate that this appeal could be concluded quite rapidly, both in terms of how long it would last and how soon it could be re-listed. We direct that it be listed for an hour in Category C, as expeditiously as is convenient to all concerned.