United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS M TETHER (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE D WILCOX:

1. This is an appeal against the decision of the Employment Tribunal sitting at Stratford on 1, 2, 3, 4 and 5 November 1999. The Employment Tribunal unanimously found that the Applicant was fairly dismissed for a reason related to his capability and that he was not a disabled person, within s.1 of the Discrimination Disability Act 1995. The Respondent employers here were the Ford Motor Company. It is a very large company, who have procedures that are well and comprehensively determined to deal with issues such as discipline issues such as capability. It is clear to us having looked at the finding of the Tribunal below that the matters relating to disability and to capability have been exhaustively looked at by the company, with the detailed and knowledgeable assistance of the Appellant, as is evidenced by his full documentation, his careful preparation of case and all the supporting documents that descend into a great deal of detail, relating to it.
2. It is evident that his ability to present a case and to marshal evidence is supported by his use of tape recordings in order that he can have transcripts of what is said and what is done. There are two fundamental matters that have been presented to us, arising out of this appeal.

1) First of all in relation to the disability, the Act of 1995 makes it unlawful to discriminate against disabled persons in connection with employment. The Employment Tribunal at paragraph 2 of their findings wholly and accurately sets out the test. Furthermore, they had regard to the guidance issued by the Secretary of State, under s.3 of the act. There is no complaint as to the accuracy of law that was applied here.

The real complaint that is levied here is as to how the Tribunal approached the question of medical evidence. There was a finding by a medical appeal Tribunal of a 15% degree of disability – which is for the purposes of that act, not for the purposes of different legislation namely Disability Discrimination Act 1995.

The Appellant complains that what the Tribunal, in effect has done here is to go behind that finding and, to say, in effect, that they were not entitled to look at the evidence that he presented. As to his condition, directly coming from him and the evidence presented in the medical reports. A Tribunal looking at the facts and matters such as this is entitled and obliged to look sensibly and critically at the medical reports that are before them.

There are matters within the competence of members of the Tribunal and subject to submissions that may be made. They are entitled to say what are the factual matters that a Consultant or a General Practitioner took into account in arriving at a medical decision. There are entitled to interpret reports. Where there are reports that are inconsistent, interpretation is very important. They are entitled to try to reconcile opinions and if they cannot, they have to make a finding, in the light of all the evidence that they have heard before them.

They are not stopped from taking any view of the evidence, provided they use their common sense and fairness in that approach. Now it seems to us that the Tribunal took the view upon a multiplicity of reports that there was something wrong with this man's shoulder. They took the view that he had a condition of the shoulder that from time to time gave him discomfort.

The Applicant has a condition affecting his right shoulder. It is occasionally painful, when it is painful it tends to inhibit the performance of some daily tasks. They found that he exaggerated the effect of the condition which has only a minimal impact, upon normal day to day activities and is not such, as to justify the conclusion that he is disabled. The finding of disability they found was irrelevant to this conclusion:

"The requirement that an adverse effect be substantial reflects the general understanding of disability, as a limitation going beyond the normal differences in ability, which may exist amongst people. A substantial effect is more than would be produced by the sort of physical or mental conditions expressed by many people, which have only minor effects. The substantial effect is one, which is more than minor or trivial."

The Tribunal on the basis of the report before them and having seen and heard the Appellant on these specific matters, came to a competent conclusion of fact. It is a conclusion that they were entitled to come to on the facts, as to the question of disability, to which they did. We do not justified in disturbing that finding.

2) I come to the second matter that has been urged upon us in relation to the unfair dismissal. It is recited in the findings of fact that the Ford Motor Company employer were sensitive and sympathetic to the condition of the Appellant and sought, exhaustively, to find a position in which he could operate, having regard to his capability. One of those jobs was on the dragline and this is referred to in particular in paragraph 15 of their finding.

It is a finding, that is extensively set out, and argues the evidence that it had before it and does not admit of the interpretation, now being urged upon us by the Appellant. Namely, that the true reason why he could not be employed in that particular capacity was not a question of capability at all, it was a wholly different issue. It was a matter that there were an excess of people employed upon the dragline and that he was to use the expression used by Miss Tether, 'bumped off' for that reason.

To that end we have been invited to consider the notes or transcripts more accurately of a superintendents investigation of 10 December 1997 and also to consider his written evidence, submitted to the Tribunal. We observe in relation to the superintendent's investigation of 10 December 1997, it is impressive as to what ends the company were prepared to go in order to try and accommodate him and seek to help him. That is also an inference that we draw from his own evidence as well.

It does not seem to us that the matters contained in the transcript, or in his own evidence, support the position that there was any acceptance by the company, the Respondent, that the reason was not incapability but an excess of persons upon the job; in any other words that he may well have been unfairly selected for not doing the job.

If that had been the case, then of course, his Union would have been involved and doubtless would have reacted very unfavourably to that position. That is a matter of common sense and a proper inference that even we as a Tribunal, looking at the facts and matters before us on the Tribunal's findings are entitled to find.

Secondly, it would go directly against the evidence of Mr Scales as recited in detail and found by the Tribunal in paragraph 15. If there had been an omission by Mr Scales before the Tribunal or at any other stage that he accepted and adopted, the Tribunal would have had to have say to itself on the one hand we have the acceptance by Mr Scales that this was the reason, now in flat contradiction of that, we have Mr Scales putting forward the evidence directly that he was on the dragline, and he had to help the Appellant release the handbrake. That that evidence was corroborated medically and that there was no reconciliation of that evidence by the Tribunal. There was no reference of it for the Tribunal. We find that extraordinary, in the light of the arguments put before us and in the light of the documentary matters that have been drawn to our attention. What the Tribunal there found was that there was an incapacity. An incapacity based upon those considerations. This point of detail in evidence, we think was resolved on the evidence before the Tribunal and we see no basis upon which we could interfere with their conclusions as to capability.

3. We do not think that this is a case where by we should seek the reasons of the Chairman. This is not the sort of determination that so often one gets from Tribunal's who have a great pressure of work and sometimes, do not set out matters in great detail. This is a detailed finding of fact, a reasoned finding of fact and going on from one fact to another.
4. We find that there is no arguable reason to interfere with the Tribunal's finding. There is no evidence before us that they were procedurally incorrect. We have considered all the arguments, so helpfully urged on behalf of the Appellant by Miss Tether. We dismiss the appeal and we refuse leave to appeal, we do not think there is anything arguable in the Court of Appeal either.