At the Tribunal | |
Before
HIS HONOUR JUDGE COLLINS CBE
LORD DAVIES OF COITY CBE
MR P A L PARKER CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellants | MR PAUL WILSON (Employed Barrister) Instructed By: Messrs Hammond Suddard Solicitors 2 Park Lane Leeds LS3 1ES |
For the Respondent | MR JAMES TAYLER (of Counsel) Instructed By: Messrs Bridge McFarland Solicitors 19 South Street Mary's Gate Grimsby South Humberside DN31 1JE |
JUDGE COLLINS CBE:
"Contrary to the obligation to seek to make adjustments to allow the applicant to continue in that employment, the respondent presented him with a number of illusory options to point him in the direction of medical retirement, which was their preferred option."
Section 5(1) provides:
"5 (1) For the purposes of this Part, an employer discriminates against a disabled person if -
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified."
"5 (2) For the purposes of this Part, an employer also discriminates against a disabled person if -
(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified."
"5 (5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty."
Section 6(1) provides:
"6 (1) Where –
(a) any arrangements made by or on behalf of an employer,
(b) any physical feature of premises occupied by the employer,
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect."
And Section 6(3) set out a number of examples of such steps including transferring the employee to fill an existing vacancy.
"The Tribunal considered in the round that the respondent's job-search in respect of the applicant was undertaken on a perfunctory basis. There were a number of references in the response to enquiries made as a result of knowledge of the applicant's condition which indicated the possibility that there might be posts available in the not too distant future which the applicant might consider taking. The applicant was aware that considerable numbers of employees at the site were employed on a contract basis to undertake, for example, driving work. The Tribunal, despite raising questions regarding these aspects, did not receive any detailed information as to the number of posts and functions undertaken, and the possibilities for employment and turnover of staff in relation to what the respondent termed the 'daylight areas' where staff are not employed in shift work."