United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P K THOMPSON Solicitor Messrs Dibb Lipton Alsop Solicitors Victoria Square House Victoria Square Birmingham B2 4DL


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at Ashford whose reserved extended reasons were promulgated on 2 November 1999 after a two day hearing which had taken place in September. By their decision the tribunal held that the respondent had been unfairly dismissed but that her claim that she had been discriminated against under the Disability Discrimination Act 1995 failed.
2. The respondent, who is now 52 years old, was a customer care assistant employed by the appellants from 15 December 1982 until 3 March 1999. She was dismissed on the grounds of incapacity in December 1996. She suffered from a detached retina and had an operation and a lens implant which did not remedy the condition. She had a considerable amount of pain and discomfort when using a VDU and was effectively unable to return to work.
3. The tribunal looked at all the evidence relating to the steps taken by the appellants to investigate her disability and to see whether or not steps could be taken to surmount it. It is clear that the appellants went to a great deal of trouble to keep themselves informed about the respondent's medical condition and to examine the options which were open. The tribunal held as we have indicated that the claim under the Disability Discrimination Act failed. However they decided that the dismissal was unfair because of a lack of adequate consultation at an appropriate stage. The final stage of obtaining information about the respondent's condition was that she was asked to go for an assessment by the Royal National Institute for the Blind at Dorton College, arranged for early in 1998. The assessment was dated 6 May 1998 and includes various recommendations, including one that the respondent learn touch-typing and a suggestion that she should be offered a rehabilitation course.
4. Subsequently the appellants' occupational health department was involved. On 2 July a letter was sent to the respondent by a new person who had taken over her file, telling her that the advice was that she was not fit to return to her job and it had not been possible to identify any suitable work for her. There was then a series of correspondence and finally a letter dated 12 October 1998 dismissing the respondent with effect from 3 January 1999.
5. The tribunal dealt with the matter in this way - in paragraph 23 they stated that they were satisfied that the appellants had made full enquiries and had reasonable grounds to believe that the respondent was incapable of carrying out a role using a VDU for more than a short period of time, that they had considered all reasonable avenues of alternative employment and that there were no reasonable adjustments which could have been made. But they turned in paragraph 24 to consider the procedure and concluded that the appellants did not act reasonably in treating the reason for the dismissal as a sufficient reason in all the circumstances and they recited the statutory test set out in S.98 (4) Employment Rights Act 1996. In paragraph 25 the tribunal says:

"The Applicant's was informed by Jane Gillespie at the meeting on 30 March (and the discussion was confirmed in writing on 2 April), that it was unlikely that the Dorton College assessment would assist back into any form of work with the Respondent; and she was told about the options of ill health retirement and early retirement. At that stage, therefore, she might well have received the impression that the Respondent was manoeuvring into a position from which to terminate her employment. There was no further meeting with her following her assessment by Dorton College."

6. We pause there to note there was of course a certain amount of correspondence to which we have already referred. Then in paragraph 26 they go on:

"We find that a reasonable employer would have wanted to see her following that assessment to discuss the implications of it. There were recommendations in the assessments and the Respondents owed to the Applicant to go through these with her and to explain why the Respondent was not following such recommendations."

7. And in paragraph 29:

"It is our finding that reasonable procedures were sadly lacking in the time leading up to this dismissal, and as a result of the failures identified above, it is our finding that the Applicant was unfairly dismissed by the Respondents."

8. Mr Thompson has argued that those conclusions were so unreasonable that no reasonable tribunal could properly have come to them. In our judgment that argument cannot be sustained. The tribunal had the material before them, conducted a detailed examination of the material and after reserving their judgment came to the conclusion which they did after considering all the evidence. In our judgment the evidence which they recited was evidence on which they were entitled to come to the conclusion which they did, even if another tribunal might have come to some other conclusion. It does not appear to us that there is a reasonably arguable point of law which arises; for those reasons this appeal will be dismissed.