United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL CADNEY (of Counsel) Messrs Davies & Partners Solicitors Rowan House Barnett Way Barnwood Gloucester GL4 3RT
For the Respondent	MR JAMES TAYLER (of Counsel) Messrs Bond Pearce Solicitors Bristol Bridge House Redcliff Street Bristol BS1 6BJ


 


HIS HONOUR JUDGE D M LEVY QC

1. Mr Jit Singh Panesar ("the Appellant") was born on 20 December 1950. He was employed by The Post Office from 1978. On 30 September 1999 his employment ended. By an Originating Application dated 23 December 1999, he complained that he had been unfairly dismissed, that there was a breach of contract, and unlawful disability discrimination. There was a hearing of his complaints before an Industrial Tribunal sitting in Bristol from 2 - 4 August 2000. By a decision promulgated on 22 August 2000 the Tribunal decided that his complaints failed. From that decision the Appellant appealed by a Notice of Appeal dated 3 October 2000. There was a Preliminary Hearing of his appeal before a Tribunal headed by Ms Recorder Slade QC which thought that there was an arguable case for the matter to go ahead to a Full Hearing, though warning the Appellant that there was no certainty of a decision in his favour. The Respondent to the appeal is Consignia PLC (formerly known as The Post Office) ("the Respondent").
2. The facts which led to the dismissal, and indeed the decision, are not substantially in dispute. Following his work with the Respondent, the Appellant suffered an injury to his back in February 1997. He had a prolonged period of absence from work and was considered for ill health retirement. He returned to work on a part time basis under a rehabilitation plan on 6 January 1998. He suffered a further accident on 5 May 1998 but took no time off work. On 19 January the Appellant suffered a further road accident and this time he had a more severe whiplash injury. He was seen by the Respondent's Occupational Physician, Dr Harrington, on 2 March 1999. He told Dr Harrington that he felt he would not become fit to return to the full time duties of his post. Dr Harrington wrote to the Appellant's Orthopaedic Surgeon, Mr Bannister, on 4 March 1999 seeking his advice. On 9 April 1999 Mr Bannister wrote to the Respondent stating:

"He should try to go back to work on rehabilitation rates with his collar for two months. If he is really not coping after that time, it is unlikely that he is going to be able to do so in the long-term."

3. The Appellant returned to work on the rehabilitation programme on 26 April 1999. He was unhappy from the start. He suffered pain and depression and had a personality clash with a Mr Roan. He saw a Janet Quincy, an employee of the Respondent, who suggested that it might be a good idea for him to have an adjustable desktop. On 7 May 1999 he mentioned this to Carolyn Gordon, another employee of the Respondent. He then stated that he felt it was too early to consider purchasing this equipment because it would be a good idea for him to see Mr Bannister again first. On this, the Tribunal concluded, as they were entitled to do, that the Appellant himself was not fully convinced that the provision of an adjustable desktop was the answer to his problems. He saw Mr Bannister on 14 May 1999. Mr Bannister supported, in general terms, the idea of improving the Appellant's position at work by the provision of a work station (as the adjustable desktop was then called).
4. On 17 May an attendance note was made by Carolyn Gordon which commenced:

"When asked how he was Jit respondent 'not very good'. He told me he had seen his consultant on Friday who found that his condition was worse now than back in January.. He is due to visit the consultant on 11 June. The consultant felt that Royal Mail should provide an ergonomic work station for Jit as soon as possible to try and alleviate his discomfort."

An ergonomic work station was another description of an adjustable worktop. Mr Woolcott of the Respondent's Personnel Department wrote suggesting the provision of such a surface, as is seen by a memorandum dated 27 May 1999. Before such a worktop could be provided, from 30 May 1999 the Appellant was off work through ill health. On 21 June 1999 he wrote to the Respondent a letter in which he stated:

"An appointment with my Consultant Orthopaedic Surgeon took place on 14^th June 1999. The prognosis did not appear to be promising and the future dismal. I am therefore led to believe beyond reasonable doubt the injuries endured, may now be construed as having formed a permanent feature of my life. However, I now leave matters for Royal Mail to decide the next ambit of steps and no doubt you will write to inform me of the action you may wish to follow."

In the meantime investigation had continued with regard to the sloping work surface and there was little doubt that it could have been supplied, had a decision been made to attempt a further period of rehabilitation. This is a finding of fact made by the Tribunal in paragraph 12 of the Extended Reasons.

5. On 30 June 1999, the Appellant saw Dr Harrington again. Neither Dr Harrington nor the Appellant mentioned the possibility of a sloping work surface. It was agreed that another report should be obtained from Mr Bannister. On 1 July Dr Harrington wrote to Mr Bannister stating among other things:

"I would be grateful therefore, if you would confirm that you think that [the Appellant's] condition is now permanent and that he will be permanently unable to return to the duties of his grade."

The letter had commenced:

"Unfortunately, as you are aware, he does not appear to have made any progress and was unable to continue at work despite attempts to modify his hours and physical conditions [emphasis added]."

Dr Harrington appeared to have been under the impression that the desk top had been provided which, because of his absence from 31 May, had not in fact been tried.

6. Mr Bannister produced a report dated 23 July 1999 in which he concluded:

"Whiplash injuries normally reach their final state within 2-2½ years but in the vast majority of cases it is possible to give an accurate prognosis after 3 months. I am afraid Mr Singh simply has not made any progress after his last whiplash injury despite all active interventions which have been proven and I am afraid that his present state must now be regarded as permanent."

Thereafter the Appellant was visited by Miss Roberts, the Respondent's Employee Welfare Advisor. She erroneously recorded in her standard form:

"Informed client of decision to authorise medical retirement and right to appeal."

In fact, as the Employment Tribunal found, there had been merely a decision by the Occupational Health Physician that he would be willing to sign a certificate that the Appellant was permanently unfit and that Mr Thompson was giving serious consideration to this option. The Tribunal found that the Appellant was not misled and was aware that he had the right to make representations.

7. On 24 August 1999 Mr Thompson wrote to the Appellant setting out the correct position and stated:

"Serious consideration is now being given to retirement."

The latter expressly gave the right to the Appellant to make representations. The Appellant signed a letter which is at page 92 of our bundle, which reads:

"The Welfare Officer visited me on 23^rd August and confirmed a Business decision has already been taken to retire me on Health Grounds.

Presently, I continue to attend further medical appointments and assessments and therefore feel it may be inappropriate to comment to preclude prejudicing my position. However, the decision remains with the Management."

On 20 September 1999 Mr Thompson wrote to the Appellant informing him that he was to be retired on health grounds.

8. In the Extended Reasons at paragraph 22 the Employment Tribunal first considered whether the Respondent had failed in its duty under Section 6 of the Disability Discrimination Act 1995 to make reasonable adjustments because it had not provided Mr Panesar with a sloping work surface prior to his absence through ill health from 31 May 1999. The Tribunal concluded there was no breach of Section 6 as the provision of a sloping work surface was not an obvious adjustment nor was it clear that it would have prevented the effect in question. The Tribunal went on to hold that given the timescale, the lack of enthusiasm from the Appellant and the likelihood that the provision of a sloping work surface would only have a marginal effect, that the Respondent met their obligations by suggesting the adjustment, investigating it and being ready and willing to install it [emphasis added] should the Appellant return to work after 31 May. The Employment Tribunal's decision that the Respondent did not fail in its duty under Section 6 of the 1995 Act is not subject to this appeal.
9. At paragraphs 25 - 26 the Employment Tribunal went on to consider the dismissal of the Appellant in August 1999. They held that there was no question that the Appellant had a permanent whiplash injury which was having a considerable effect on his ability to move and was causing him pain in very simple activities. There was no indication that the time he had had off work since 31 May 1999 had done anything to resolve the problem. In paragraph 25 the Tribunal went on in its reasons to hold that the Respondent knew that there was a settled situation on the basis of medical advice. They went on to hold:

"The alternative to dismissal was further rehabilitation with better adjustments. This was never suggested by the Appellant or his advisers at any time after he [had] gone off sick on 31 May. In our view there is no reason at all to think it would have worked or that the Appellant would have agreed to it. In those circumstances, we have come to the conclusion that the Respondents were justified in their decision under Section 5(1)(b) and that therefore there was no discrimination under that Section in the decision to dismiss."

10. This paragraph is the subject of attack in the Notice of Appeal. Both counsel who have appeared before us appeared below, and it was Mr Cadney on the Preliminary Hearing who persuaded the Tribunal that there was a matter to go forward. He submitted that in truth and in fact that no adjustment of any sort had been made by way of providing a sloping surface to be used by the Appellant. In these circumstances he assented that the finding at paragraph 25 of the Extended Reasons:

"In our view there is no reason at all to think it would have worked or that the applicant would have agreed to it."

was not one that the Tribunal was entitled to make.

11. Mr Tayler submitted that the 'it' in this paragraph, by reading the paragraph as a whole, referred to:

"further rehabilitation with better adjustments."

which might have included the provision of a sloping surface. What was being referred to overall was a period of rehabilitation duties.

12. We have been taken by Mr Cadney to all the medical evidence and to the notes of evidence which have been provided for us and he is right in saying that there was in fact no evidence that an adjustment by provision of a sloping work surface had ever been tried. In our judgement, however, looking at the evidence in the round, the Tribunal was entitled to conclude, from all the facts which it had found, that had such an adjustment been attempted it would have made no difference to the situation in the light of the Appellant's medical condition and the reports.
13. In these circumstances we conclude that Mr Tayler is right when he submits that the Appellant was dismissed for a reason that related to his disability, namely his inability to continue his job duties, and that there was no breach of the Act. As stressed by the Court of Appeal in the recent case of Jones v The Post Office [2001] ILR 384, the threshold for justification is relatively low. Section 5(3) provides that treatment is justified if the reason for it is based materiel to the circumstances of the particular case and substantial. There had been no failure on the part of the Respondents to make "reasonable adjustments" within the meaning of Section 6 of the 1995 Act. Accordingly, it was not necessary to consider the justification on the basis of Section 5(5). If, in fact, the Employment Tribunal was required to consider at all whether there were any future rehabilitative duties or adjustments that might have enabled the Appellant to return to work in the circumstances of this case it is questionable that that could arise. In the circumstances this appeal, which turns on a fairly narrow span of facts, is one which fails.
14. Mr Cadney has drawn our attention to an unreported decision of the President in the case of Caesar & Howie v Ms Veronica Cosgrove decided on 17 September 2001 and noted in the IDS handout of December 2001. He has provided us with a transcript of the judgment which deals in a sense with the position of adjustments. That decision is distinguishable from that other appeal because here the employer was considering adjustments but never in fact put in the sloping work surface because of events which took place after they had come to the decision that they should be introduced. In fact the Appellant never came back to work after that decision had been taken because of his medical condition.
15. In the circumstances, we thank both counsel for their helpful submissions made to us this morning, as we dismiss this appeal. Permission to appeal refused. The decision is one based on appropriate findings of fact.