United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR N MOORE (Solicitor) Instructed By: Messrs Stephens & Scown Solicitors 25-28 Southernhay East Exeter Devon EX1 1RS
For the Respondent	MS D GRENNAN (of Counsel) Instructed By: Messrs Eastleys Solicitors 3 New Road Brixham Devon TQ5 8LZ


 


JUDGE DAVID WILCOX: This is an appeal against the decision of an Employment Tribunal held at Exeter on 16 and 26 August 1999. They found that the Applicant was unfairly dismissed and that the Respondent had discriminated against the Applicant on the grounds of his disability.

1. The Applicant was employed by the Respondent in August 1988 as Bars Manager. He claimed initially unfair dismissal and disability discrimination. It is not in issue that he was disabled because the Respondents admit that at all material times he was disabled within section 1 of the Disability Discrimination Act 1995 by reason of his diabetes. He was the Manager of the hotel bars at the Victoria Hotel in Torquay, and also of the Arena Bar. Though called Manager, he was not in fact a Manager because he was not part of the management team. The Alberts Bar, formerly the public bar, was separately managed. The senior management, it was found by the Tribunal, were aware of his disability and the fact that he was unable to work in hot or stressful surrounds. He was required to have a break at about 4 o'clock or within a couple of hours thereafter, to take an insulin injection followed 20 minutes later by a cooked meal. His requirements were, it is found by the Tribunal, known. Indeed, it is clear from the subsequent findings of the Tribunal that the requirements were known and the consequences of the requirements not having been adhered to, were also known because an important part of the evidence related to what happened over Christmas of 1998 and the New Year. Fixed with the actual knowledge of his requirements, by reason of what happened to him over that period, they were also fixed with knowledge of the consequence if those requirements were not adhered to. What happened over Christmas and the New Year was relevant in considering under section 6 of the Disability Discrimination Act reasonable adjustments that should be made and also in considering such factual matters as may arise such as justification.
2. One can characterise the requirements of the Applicant, as so found by the Tribunal, in three ways. Firstly, that he could not do long shifts uninterrupted, and had to have a break in order to have his insulin and a meal. Secondly, he could not do wine service because he shook and because of the heat within the restaurant, that clearly affected him. Thirdly, he could not lift heavy loads, he needed help and assistance.
3. Over Christmas the Respondent suffered a serious illness in consequence of major insulin imbalance, caused partly by the long shifts and the stress brought on by what the Respondent perceived to be the new Managing Director's over-demanding attitude and concern about plans for the hotel. Mrs Whittle was the new Managing Director.
4. It was found by the Tribunal that the Appellants had plans for a major expansion of hotel activities involving building an Arena Games area, which include a ten-pin bowling alley and electronic games as well as the refurbishment of the original public bar, now called Alberts. As a result of that there was an agreement arrived at between the management team (which did not include the Respondent) that the hotel bars would no longer require a bar manager but only a bars supervisor.
5. The Applicant returned to work after his illness on 2 February. On 9 February, one week later, he was called to a meeting with Mrs Whittle and given a letter giving him ten weeks' notice of dismissal on the grounds of redundancy.
6. We deal first of all with the question of disability because that is the first matter that is relied upon in this appeal by the Appellants: their criticism of the way in which the Tribunal approached matters of fact and the structure of their reasoning in relation to the disability issue.
7. On 16 February the Applicant was told that he could become, if he wished, the new hotel bars supervisor. The important finding of fact in this relation is this, although the job involved fewer hours and a lower rate of pay, in all other respects it was very similar to his existing employment. Arising out of that offer, there was a consideration of his special requirements. It was found by the Tribunal that he was informed that the winter rotas would be on split shifts. (I interpolate there, so far, so good). But that during the summer there would be all day opening and a "need for flexibility" and the point was made (and again, this is a quote from the original evidence) "nothing was written in stone". The finding was that he was given no assurance that he would not be required to work long single shifts. Indeed, in the letter of 18 February 1999, there is no reference to that matter. As to wine service this was raised and dealt with by Mrs Whittle stating in evidence before the Tribunal, "he would have to do wine service if no one else was available". That, to be fair, against a background of a finding that Mr Brenton, the Personnel Manager of the hotel, had said: "you would be able to decide who went into the restaurant to serve wines and could, therefore, remain behind the bar area during this time". That was a concession but the Tribunal found that there was an obligation for him to do wine service if no one else was available.
8. The third concern of the Applicant/Respondent was his problem with lifting. He had never been rostered before to work alone in the bar. The Tribunal found there a need to carry stock from the cellar. Whilst Mr Brenton's letter stated that "we agreed you would be able to manage small loads, or break large loads into smaller loads, or seek assistance from other members of staff" there was the real concern of the Applicant that if he could not borrow staff from the Alberts, he might himself be forced to carry heavy loads. There is no evidence that he was given assurance in relation to that, or by way of a right to ensure that other staff in fact would assist him if he so required.
9. The Appellants conceded that he was disabled. The Tribunal considered section 6 of the Disability Discrimination Act at paragraph 22 of their findings. Section 6 is the section which is entitled "The duty of an employer to make adjustments". They had, earlier, in the paragraphs that I have made reference to already, considered his requirements and considered his difficulties and would have considered the adjustments or proposals made by the employer to reflect those difficulties. In applying section 6, at paragraph 23, the majority held:

" … that it is necessary to look at the background. Mrs Whittle had failed to acquaint herself with the applicant's requirements and had changed his rota without consultation with him. On 2 January she had criticised him severely and on 5 January she had left the long single shifts in the rota despite the applicant having raised with her the problems this caused. … Furthermore, she had insisted that the applicant would be required to do wine service from time to time and that the new rotas were not 'set in stone'."

10. The Tribunal said, by way of conclusion, that the arrangements for the new post put the Applicant at a substantial disadvantage compared to people who did not suffer from his disability and that at that meeting and in the subsequent letter failed to take all steps that it was reasonable for them to have taken. The thrust of this appeal, argued on behalf of the Appellants, is that at that stage, one goes to section 5 (2) of the Disability Discrimination Act:

"(2) For the purposes of this Part, an employer also discriminates against a disabled person if –

(a) he fails to comply with a section 6 duty imposed upon him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified."

11. What has been argued before us forcibly, on behalf of the Appellants, is that the reasons set out by the Tribunal do not explicitly show that they addressed their minds to the requirement in (b). We must examine that with care. First, we note that the obligation or the burden is upon the employer to show that the failure to comply with the duty is justified. In the course of persuasive argument addressed to us, on a number of occasions the Counsel for the Appellants was asked, "but what are those items of justification that were canvassed before the Tribunal that they should have mentioned expressly, and in fact that they should have shown explicitly how they dealt with them".
12. There were no matters put before us that could be described as justification and we do remind ourselves that the obligation is upon the employer to discharge the duty of showing justification. When a Tribunal looks at all the circumstances, they will consider various aspects of the evidence and they will draw such inferences from the evidence as they apply and touch the tests set out in the statute.
13. There is nothing in the extended reasoning that we could find that would show that the Tribunal did not in fact address such matters as urged upon us by Counsel for the Appellants in this case. It is right that there is no explicit reference to having "jumped through the hoop" and stated for example, "It is possible that there is justification (a), (b) and (c) and we deal with it in that way" postulating possible justification is to deal with the issue on an academic basis, it is not dealing with it on a robust and sensible basis, having regard to the difficulties that do confront a Tribunal.
14. We take account of the fact that the Tribunal was addressed by Counsel. The test was canvassed before them and in fact they had the benefit of hearing the Counsel, who have very helpfully canvassed these matters before us. We find no warrant for concluding that this Tribunal did not apply the appropriate test in this case. We therefore find that in relation to the discrimination part of the appeal that there is no merit and we dismiss it.
15. We go to the second limb of the appeal. That relates to the unfair dismissal. That is dealt with in the Extended Reasons in this way:

"18. The respondents' contention, in the alternative, is that the reason for the applicant's dismissal was 'some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held' within s.198 (1) (b)." [of the Act].

They went on to consider:

"We accept that the respondents were planning a re-organisation and that they were fully justified in considering that the management of the Arena Games should be separated off."

And then, this contentious part of the reasoning, according to the Appellants:

"However, it is not enough for the respondents to show that they had a reason for altering the applicant's terms of employment. They have to show that the reason justified dismissal. In our view, this could not arise until the respondents had raised with the applicant the possibility of his agreeing to a variation in his terms. Since they issued a notice of termination before raising the matter with him at all we consider that the respondents' reasons for dismissal were not 'some other substantial reason' within s.98 (1) (b)."

16. It is a mixed question of law and fact. Facts are essentially for the Tribunal in a case like this. We were referred to a number of cases including properly West Kent College v Richardson [1999] ICR 511.
17. We adopt that as being a correct expression of the law and it is clear that it was that approach that informed the Tribunal in this case when it came to consider paragraph 18. We do not accept the submission of the Appellants, that because there is a reason for dismissal given at the outset and it becomes fulfilled or perfected at the end, that that is sufficient, there must be a substantial reason, the same reason which is constant from the outset to the end. We are against the Appellants therefore in relation to that submission and we dismiss that ground of appeal. It follows that we dismiss the substantial appeal that is before us.