United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M MORRISON (Solicitor) Messrs Gorna & Co Solicitors Virginia House Cheapside King Street Manchester M2 4NB


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us today, by way of a Preliminary Hearing, the Appeal of Peter Stuart Andrews in the matter of P S Andrews v Metal Castings Limited. Today Mr Andrews, on this Preliminary Hearing, has appeared by Mr Morrison.
2. On 17 May 1999 Mr Andrews presented an IT1 for unfair dismissal and for disability discrimination. The Respondent Company indicated in answer that he had been dismissed for redundancy and that his disability had played no part in his selection for redundancy. The IT1 went to the Employment Tribunal at Birmingham, which heard the matter over some 5 days or so between March and July 2000.
3. The Tribunal gave a full and careful decision spread over some 13 or so pages. They held that Mr Andrews had been unfairly dismissed. There is, of course, no appeal by him as to that and, indeed, no appeal by the Company. But they also held that he had not been subjected to disability discrimination and Mr Andrews appeals as to that.
4. His appeal raises what seems to us to be an arguable point of law of some difficulty. In 1969 Mr Andrews, who was a time-served fitter, was originally employed by the Respondents as such. He then had a cerebral haemorrhage that left him with no use in his left arm, hand and leg. He was off sick, as one would expect, for some time and would eventually return as a Tool Room inspector. Then, in about 1992, upon a vacancy caused by the then incumbent, a Mr Willis, leaving, he was offered and accepted the post of Tool Room clerk, which was a unique post in the sense that the company needed only one and had only one Tool Room clerk.
5. Indeed, in time it came to the view that it needed none. By 1998 the Company was of the view that the post could be deleted. As the post was unique the matrix assessment marking system which was applied to others in the Tool Room was not applied to Mr Andrews. The Tribunal held that there was a genuine redundancy. They said in their paragraph 47:

"At the time of the applicant's dismissal the respondents were, for financial and commercial reasons, reducing the size of their workforce. They reached a decision that they no longer had a requirement for a clerk in the Tool Room. This is the reason the applicant was dismissed. Thus the dismissal of the applicant was wholly attributable to the fact that the requirements of the respondents business for employees to carry out work of the particular kind, for which he was employed, namely that as clerk in the Tool Room, had ceased."

6. The reason why the dismissal was nonetheless unfair was related to lack of consultation. We do not need to go into that side of things. When the Tribunal turned to disability discrimination they said this in their paragraphs 56 and 57:

"Since the applicant was dismissed by reason of redundancy, the tribunal has looked to ascertain whether or not the applicant was so treated in connection with dismissal by reason of his disability.

In considering this aspect of the case, the tribunal has reminded itself that the applicant was the only person undertaking the work of Tool Room clerk. Having reminded itself of the other relevant facts, the tribunal has asked itself whether the applicant would have been treated as he was if he were not disabled. This aspect of the case has been subject of careful consideration by the tribunal. The tribunal has asked itself whether in the circumstances where the applicant was the only person performing the tasks which ceased to exist, the respondents explanation for their conduct was an innocent and reasonable explanation of the respondents conduct with regard to the dismissal. Having subjected this question to such consideration, the tribunal concludes that the explanation was innocent and reasonable."

7. A little later in their paragraph 59 the Tribunal says:

"The applicant was dismissed because the respondents considered that his post was redundant, not because he was redundant as an individual. The reason for the redundancy was that the post was deleted from the Tool Room establishment. When the applicant was appointed to the post of Tool Room clerk it was to replace Mr Willis. Although the applicant was fulfilling the post of Tool Room clerk because of his disability the job as the job which Mr Willis (I think it should mean) had been carrying out. The dismissal was because the respondents decided that they no longer had a requirement for a Tool Room clerk. This decision did not relate to the applicant's disability, but was taken because they considered they could dispense with the post of Tool Room clerk."

And a little later they said:

"A Tool Room clerk not suffering from a disability would not have been scored on the matrices, but would have been treated in the same way of the applicant."

The difficulty we see - and it has been touched on but decided in other cases - arises where a person is given a special job because he is disabled and where that special job then becomes redundant in a way in which the more general jobs might not have done. The problem is at its most difficult when the person in question once had a more general job and was then, on disability, switched to the special one.

8. One can see that a truly cynical employer could use what would seem to be a well meaning offer of a special job, offering it to a disabled person, and yet using that as the high road to a relatively inexpensive later dismissal upon the special job having been unique and becoming redundant. In a less cynical context one could easily see that if a truly well meaning offer of the special job to a disabled existing employee, perhaps by way of an adjustment made under section 6(3)(c) of the Act, can, on the genuine redundancy of that special job, nonetheless lead to a claim for disability discrimination, that employers would be discouraged from offering the employment, perhaps spread over many years, which the special job could have led to. One can see that there are difficulties in this area. It may be necessary for a Tribunal to ask questions such as whether Mr Andrews would ever have been likely to find himself to be Tool Room clerk but for his disability and whether he would have been likely to have been made redundant or otherwise to have been out of the company's employment at 17 February 1999 had he remained able bodied from 1969 onwards but had suffered from all such other deficiencies, short of disability, as he in fact suffered from.
9. There are, as it seems to us, difficulties here and we see the matter as far from easy. There are, as it seems to us, arguable questions of law arising here and we allow the Notice of Appeal as it stands to go to a full hearing. We mark it Category A and estimate it to take half a day.