United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M YATES Solicitor Messrs Hammond Suddard Solicitors 2 Park Lane Leeds LS3 1ES


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting in Hull whose extended reasons were promulgated on 24 November 1999. By their decision the tribunal held that there had been unlawful discrimination against the respondent, contrary to Disability Discrimination Act 1995 and provided for a remedies hearing to take place on a subsequent date.
2. The respondent, who is now 42, was a process operator employed by the appellants from 4 January 1988 until 31 March 1999 earning about £24,000 a year. On 23 December 1996 there was a serious fire at work. The respondent was not burned but developed a post traumatic stress disorder and eventually had a 50% disability attributed to him because of his condition. He was dismissed on the ground of incapacity because of ill health. The argument at the tribunal essentially concentrated on the question of whether or not the employers had complied with their duty under section 6 of the 1995 act to make adjustments and whether or not suitable alternative employment had been identified.
3. It was conceded that because of the nature of the appellant's disability he was unable to resume his former job as a process operator, but there was consideration of a number of jobs which he might have been able to take. Transferring him to fill an existing vacancy is an example of the kind of step that may be taken by an employer under s.6 of the Act. The tribunal formed an exceptionally unfavourable view of the way in which in the employers handled the case. In paragraph 10 they said:

"Contrary to the obligation to seek to make adjustments to allow the applicant to continue in that employment, the respondent presented him with a number of illusory options to point him in the direction of medical retirement, which was their preferred option."

4. That almost amounts to saying that the appellants deliberately decided not to comply with their duty under the act but put up a front or pretence to suggest that they had. But the decision of the tribunal has to be looked at more closely, because in paragraph 7 they consider in detail what actually happened in relation to the investigations undertaken with regard to alternative possibilities for employment. In paragraph 7 it is said:

"The Tribunal considered in the round that the respondent's job-search in respect of the applicant was undertaken on a perfunctory basis. There were a number of references in the response to enquiries made as a result of the knowledge of the applicant's condition which indicated the possibility that there might be posts available in the not too distant future which the applicant might consider taking."

5. S.6 of the act imposes an obligation on the employer to take such steps as is it is reasonable in all the circumstances of the case for him to have to take in order to prevent any arrangements in connection with employment or feature of premises having the effect of placing a disabled person at a substantial disadvantage in comparison with persons who are not disabled.
6. S.6 (4) gives an indication of the factors which the tribunal is to bear in mind when determining whether a particular step is reasonable. And notwithstanding the strongly expressed views of the tribunal about the appellants' motivation it does seem to us that it is reasonably arguable, although we put it no higher than that, that the tribunal failed to identify any particular step that it was reasonable for the employer to take, but which the employer did not take. And a reference to the possibility of there being employment without indicating more closely their views of the prospects of such employment materialising is in our judgment arguably inadequate.
7. For that reason and that reason only, we will allow this case to proceed to a full hearing but we note, although the point does not arise directly for consideration on this preliminary hearing, that one major area which the tribunal appears not to have discussed in their reasons is whether, where such jobs as were vacant were considered to be beyond the respondent's capacities or experience, any training or rehabilitation was available which might have got him to the point where such vacancies were more realistic.