United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C WALKER (of Counsel) The Employment Law Appeal Advice Scheme


 


JUDGE CLARK

1. This is an appeal by Mr Kimpton, the Applicant before the London (North) Employment Tribunal sitting on 26 – 27 January 2000, against that Employment Tribunal's reserved decision, promulgated with extended reasons on 17 February 2000, dismissing his complaints of unfair dismissal and disability discrimination.
2. The facts as found by the Employment Tribunal are fully set out in their reasons. In summary, the Applicant commenced employment with the Respondent Council as a Road Sweeper on 15 August 1996. He developed a back problem which led to him undergoing surgery for a prolapsed Intervertebal disc on 15 September 1997. He was redeployed to other work as a receptionist/security guard on a 3 month trial starting on 6 August 1998. That did not work out due, the Respondent contended, to his confrontational attitude. His employment was terminated with effect from 16 December 1998.
3. On the facts as found the Employment Tribunal concluded: -

(1) That the reason for the Applicant's dismissal related to capability, that is his absences due to sickness. The Respondent acted reasonably under Section 98(4) of the Employment Rights Act 1996; they found him alternative work, but he was unsuitable for the new job.

(2) That he was not disabled within the Section 1 of the Disability Discrimination Act 1995. Although he had an impairment which was long term, it did not have a substantial adverse effect on his ability to carry out normal day to day activities. Their reasons were as follows;

"Conclusion on Disability. We considered first whether Mr Kimpton had a disability. We accept that, on the facts found, he had impairment and that it was "long-term" in that it lasted for more than 12 months. We do not accept that it had a substantial adverse effect on Mr Kimpton's ability to carry out normal day-to-day activities. We note the overtime worked as a security receptionist and the fact that the surgeon on 30 October 1997 envisaged that from a purely medical perspective Mr Kimpton would be sufficiently fit to return to his job as a Road Sweeper. Applying our minds to the facts and to the C14. As to Mr Kimpton's mobility or on his ability to carry out the movements envisaged at C14. As to Mr Kimpton's ability to lift, similarly having regard to C18 of the Guidance Notes, we are not satisfied that his ability to lift and move everyday objects was impaired. On this aspect, we accept that Mr Kimpton could not lift heavy objects but we do not accept that the 7% impairment of flexibility in his spine did have the effect of making it difficult for him to lift or move everyday objects. Our conclusion is on the facts, that he could carry out normal day-to-day activities and, although there was a 7% reduction in the flexibility of his spine there was no substantial effect on his abilities. It is our considered finding that Mr Kimpton did not have a disability within the definition of Section 1 of the Disability Discrimination Act 1995 and that he is not entitled tot he protection of the Act. In view of this conclusion, it is not necessary to make findings on the other issues in relation to disability."

4. In this appeal, Mr Walker, who appears on behalf of the Appellant under the ELAAS pro bono scheme, challenges both the findings as to fairness and that the Appellant was not disabled within the meaning of Section 1 of the 1995 Act. He submits that there were no proper grounds for the Employment Tribunal to reject the Appellant's evidence as to the effect which that condition had on his day-to-day activities. We have been taken to paragraphs of the Employment Tribunals reasons particularly. From those passages it seems to us that the Employment Tribunal did not, as a matter of fact, accept that the effects of the impairment on the Appellant were as significant as he said they were. That, it seems to us is entirely a matter of fact for the Employment Tribunal and we can see no arguable point of law raised on that part of their findings.
5. As to the Employment Tribunal's conclusion on the question of fairness of the dismissal, Mr Walker submits that the Employment Tribunal was wrong to rely on oral evidence given by a Mr Caton, as to complaints which he had received about the Appellant's allegedly confrontational attitude when discharging the security's/receptionist duties. Mr Walker asks us to draw the conclusion that because there was no documentary evidence supporting those complaints the Employment Tribunal ought not to have accepted Mr Caton's oral evidence. Again we cannot accept that submission. It seems to us that it was a matter for the Employment Tribunal to decide whether or not they accepted Mr Caton's evidence. They did. They are the fact finding Tribunal; we are not. No point of law is made out in this part of the case. Consequently this appeal must be dismissed.