United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL CADNEY (Of Counsel) Instructed by Messrs Davies & Partners Solicitors Rowan House Barnett Way Barnwood Gloucester GL4 3RT


 


MISS RECORDER SLADE QC

1. This is the Preliminary Hearing of an Appeal against the decision of an Employment Tribunal which dismissed the Appellant's complaints of discrimination under the Disability Discrimination Act and of unfair dismissal. The Appellant attacks as perverse the finding that the dismissal of the Applicant by reason of disability was justified within the meaning of the Disability Act 1995 that it is not unfair.
2. Dealing with the first ground of Appeal, an attack is made on the conclusions of the Employment Tribunal set out in paragraph 25 of the decision. For the Appellant it is said that it is perverse of the Tribunal to find that there was no reason at all to think that a sloping workstation would have worked to alleviate the condition from which the Appellant was suffering. It is said that that conclusion was perverse in the light of the findings of fact made by the Tribunal. Those findings of fact include the finding that the Respondent's Occupational Health Adviser, a Janet Quincey, had suggested that it might be a good idea for the Appellant to have an adjustable desktop.
3. It appears, we are told by Mr Cadney, Counsel for the Appellant, that the date upon which that recommendation of a sloping workstation was made person was probably wrongly stated in the Employment Tribunal's decision as being 21 March 1999. It does appear from the surrounding findings of fact that it is likely that the correct date for that recommendation was 25 May 1999.
4. Further it is said that the conclusion of the Tribunal there that there was no reason at all to think that the sloping workstation would have worked is perverse in the light of the finding of fact by the Tribunal that the Appellant's own Consultant, a Mr Bannister supported in general terms the idea of improving the Appellant's workstation. That was the conclusion which Mr Bannister reached on 14 May 1999 when he saw the Applicant.
5. It is said that in the light of those findings of fact it was perverse for the Tribunal to say in paragraph 25 of its Decision that there was no reason at all to think that the provision of the sloping workstation would have worked. In our view this ground for attack on the Tribunal's decision, namely perversity in making the observation relied upon in holding that the treatment was justified is just arguable.
6. A further attack is made on the finding of the Tribunal in paragraph 25 of the Decision that there was no reason at all to think that the Applicant would have agreed to the sloping work station. It is said that that finding of the Tribunal was perverse. In support of the contention that that finding was perverse Mr Cadney, who appears for the Appellant, refers to the decision at paragraph 9 in which the Tribunal find that when the Applicant mentioned the sloping workstation to Carolyn Gordon on 7 May 1999 he said that he felt that it was too early to consider purchasing this equipment "because he thought it would be a good idea for him to see Mr Bannister first and he was seeing Mr Bannister in a week's time and to see what he thought of it." Following that conversation, the Tribunal record that on 14 May 1999 the Applicant saw Mr Bannister and he supported in general terms the idea of improving the Applicant's workstation.
7. There is no record in the Tribunal's decision of whether following the conversation on 7 May 1999 the Appellant did or did not support the idea of the sloping workstation. It seems to be the case that the Appellant did not raise the question of the workstation thereafter with the Post Office. However, it does appear that the Tribunal in reaching their conclusion that there was no reason at all to think that the Appellant would have agreed to the sloping workstation may have reached a perverse conclusion. We make that observation on a very provisional basis because it will only be on a scrutiny of the material which was before the Tribunal that that contention could properly be made out but so far as the findings of fact on the face of the decision are concerned in our view that attack is just about arguable.
8. Since in concluding whether the complaint under the Disability Discrimination Act was made out the Tribunal regarded rightly the crucial question to be whether the treatment was justified. (See paragraph 23). Since the basis upon which they reached their conclusion on this important issue is in our view just about susceptible to attack we are of the view that the appeal against the finding under the Disability Discrimination Act should proceed to a full hearing.
9. There is also an Appeal against the dismissal of the claim for unfair dismissal. The Tribunal's reasoning on the two complaints was very closely interconnected as one can see from paragraph 26 of their decision in which they state:

"It seems to that the arguments on substantial merits are very similar to those in respect of justification under the Disability Discrimination Act. Therefore the reasons which we have given to say the dismissal was justified apply equally to the "substantial merits"."

We agree that there is a close interconnection between the two claims. Since we have concluded that there are just about arguable points to be taken to attack the conclusion of the Tribunal under the Disability Discrimination Act and since the reasoning of the Tribunal on the claim of unfair dismissal depended upon those conclusions we permit the Appeal against the finding of dismissal of the unfair dismissal application also to go to a full appeal.

10. In giving permission for these matters to go forward we do not wish to give any undue encouragement to the Appellant. We merely consider that there are arguably points of law to be raised in this Appeal. We have received a letter from the Respondents requesting that should the Appeal be allowed to proceed, the Chairman's notes of all the evidence given during the Tribunal hearing be produced. Since the Tribunal's conclusions are challenged on the grounds of perversity, we make such an order. Time estimate of 1 day. Listing Category C.