United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS ROSALIND WILSON Solicitor Harehills & Chapeltown Law Centre 263 Roundhay Road Leeds LS8 4HS
For the Respondent


 


THE HONOURABLE MR JUSTICE HOOPER

1. This is an appeal prepared originally by the Appellant in person against the decision of the Employment Tribunal held at Leeds on Thursday 6 July 2000. Ms Wilson has prepared for us a helpful document seeking to identify one ground of appeal and seeking leave to amend the grounds to include that one ground. We grant that leave.
2. This is a Preliminary Hearing. Our task is therefore to see whether there is any arguable ground of appeal or any ground of appeal that has a real prospect of success.
3. The Appellant is a disabled person within the meaning of the Disability Discrimination Act 1995. He was dismissed for that reason. The Tribunal found the employers had shown that the dismissal was justified within the terms of Section 5(1)(b) and 5(2)(b) of the Disability Discrimination Act 1995.
4. The Appellant was born in October 1954 and started to work for the Respondents in November 1992 as a foundry operative. The Tribunal made a finding of fact that the Respondents were currently trading at a loss. They had at the time some 200 employees. Over 30 years there had been a substantial reduction in the number of employees in the business. In 1996 the Appellant started to have problems with his hands. Ultimately those problems were identified as being due to what is known as "vibration white finger" and also to tenosynovitis. Whereas the Tribunal found that the Appellant was not likely to make full recovery from the vibration white finger, the Tribunal concluded that the tenosynovitis was likely to improve over time.
5. On 20 August 1998 the Appellant went off sick due to his medical condition. Thereafter he was seen by Doctors and the Respondent took steps to see whether or not there were other jobs available within the company which he could do. For example, they offered him a job as a fork lift truck driver but the Appellant took the view that this was not suitable as it involved moving regularly from warm air in the foundry to cold air outside and was likely to aggravate his condition. Other jobs which might have been available were not suitable because the Appellant did not have the necessary qualifications. There were two realistic possibilities, the core shop and the stores department. Going to the stores department would have involved a lower rate of pay. When told that there was no vacancy in the core shop and that none of the employees presently there were prepared to swop, the Appellant suggested that the employers should compulsorily move the employees in the core shop to make room for him (see paragraph 2.13 of the extended reasons set out at page 5 of the bundle). Under the terms of the contract with the employees, the employer reserved the right to require the employee to work in other departments where necessary in order to meet "operational needs and maximise efficiency".
6. In paragraph 5 the Tribunal asked, first of all, whether or not the applicant was disabled, and secondly, whether he had been treated less favourably. They made findings on those two issues in favour of the Appellant. The Tribunal then asked itself the question, whether the treatment was justified. Criticism is made of the reference there to the finding that the reason was, in part, substantial because the employers were making a loss. It is submitted that that was not relevant because if the Appellant had been given employment in the core shop, work could have been found for the employee who made way for him. In our judgement that does not necessarily follow.
7. The thrust of the attack is on that part of paragraph 5 where the Tribunal turned to consider Section 6(1) and Section 6(2) of The Disability Discrimination Act 1995. The Tribunal records that the employers did not feel able to place the Appellant in the core shop:

"We have given considerable thought to whether or not it was appropriate for the employers to transfer the applicant to the core shop even though it would have meant compulsorily transferring other employees out of the core shop against their will. We have noted that the core shop was recognised to be one of the less strenuous jobs in the foundry and we have heard evidence from the applicant's fellow worker that he himself had been transferred at one stage to the core shop for that reason. We therefore consider the provisions of Section 6(4) in trying to decide whether that was a reasonable step for the employers to take. It may have prevented the effect in question but we have not considered it an option which was practical for the employer to take due to the extent to which it would disrupt his employment relations with the other employees in the core shop. In reaching our own decision on what if any steps were reasonable and what is objectively justified and material and substantial we have considered whether there was anything more which has been suggested to us which the employers could do or which we felt was reasonable for them to do"

The Tribunal then went on to say that nothing more had been suggested or had occurred to the Tribunal which the employers could have done to retain the employee. Criticism is made of the reasons given for upholding the employers' refusal to transfer other employees out of the core shop.

8. It is said that there was no evidence upon which to base the conclusion, that it was not practicable to take this step. It is right that the Tribunal make no specific reference to any issue of fact. However, it seems inconceivable to us that this was not a matter raised before the Tribunal. One must bear in mind, to use a rather old fashioned term, that an Employment Tribunal is a form of "Industrial Jury". One of the great advantages of having a mixed Tribunal is that those who sit on Tribunals understand the consequences of transferring an employee out of a shop in order to make way for another person when that employee does not wish that to occur. Of course one might have a different conclusion in a substantial and profitable business. We can find nothing perverse in the conclusion that it was not practicable for this employer to take the step of compulsorily moving another employee out of the core shop against his will. In those circumstances there is no arguable grounds of appeal and the appeal is dismissed.