United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J P SIMMONS (Of Counsel) 265 Marston Road Oxford OX3 OEW


 


JUDGE COLLINS

1. This is a preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at Stratford. The extended reasons were promulgated on 17 July 2000, the hearing having taken place on 17 and 18 April and 4 May. By their decision the Tribunal held that the Appellant Mr White had not been discriminated against on the ground of disability. Mr Simmons, who is a member of the Bar and also a personal friend of Mr White conducted his case in front of the Tribunal and has conducted it this morning before us with, if we may say so, a great deal of candour.
2. The Appellant was employed by the Respondents as a bulk mixing supervisor. Their business is the manufacture of perfumes and related products. His disability was not in dispute. The Appellant was diagnosed as suffering from macular degeneration and was registered as partially sighted. There is no doubt from the evidence and it has not been put in issue in this appeal that in the event the Respondents took such steps as were reasonable to discharge their duty to make adjustments under section 6 of the Disability Discrimination Act 1995. But it took them quite a long time to do it and the principal matter of debate before the Tribunal was whether they had failed to make the adjustments within a reasonable time.
3. The argument before us has concentrated on the way in which the Tribunal dealt with medical evidence. Now for reasons which are perfectly understandable and not to be criticised in any way, the proceedings were conducted before the Tribunal with a view to minimising the expense of expert evidence. And accordingly there was a limited amount of agreed expert evidence before the Tribunal. Mr Simmons felt very strongly that the employers took advantage of the restricted nature of the expert evidence to make unfair and improper comments about it.
4. In our judgment there is no reason to suppose that the Tribunal was improperly persuaded by comments which were improper in nature. Essentially, they state in paragraph 9 of their reasons at letter (b):

"It was clear to the Respondents from the beginning of 1999 that the Applicant needed some assistance and it was also clear to them, and they accepted, that they were under a duty to take reasonable steps to enable the Applicant to continue in his employment."

5. They go on to hold that the Respondents agreed to workplace assessment, which arrived in May 1999. They put in hand a staged programme of acquisition of necessary equipment but the focus was on events which took place in the summer of 1999. Our attention has been drawn to general practitioner medical notes, which are set out in the bundle at paragraph 3 of the Notice of Appeal. The general practitioner has recorded that the Appellant was depressed about his macular degeneration and also depressed about not getting any help at work.
6. It ought to be stated immediately that depression was never asserted as a separate disability in relation to which the Respondents had an obligation to make reasonable adjustments. But there is no doubt that an element of depression should have been taken into consideration as part of the effect of the macular degeneration if the employer had known about it. But turning to the judgment of the Tribunal at paragraph 9 letter (e):

"The Respondents had no indication from that report [that is the workplace assessment] that the matter was of great urgency, neither did the Applicant himself make known to the Respondents that urgent action was required from them at that stage."

7. And they specifically rejected the evidence of Mr White that he was pressing the Respondents during that period. At letter (g) they refer to the fact that a meeting had been arranged on 21 June and say this:

"Before the outcome of the 21 June 1999 meeting could be assimilated by the directors and a decision reached, the Applicant had been diagnosed as suffering from stress and depression by his general practitioner and he was signed off work for four week on 8 July 1999. Between 21 June 1999 and 7 July 1999, the Respondents had no indication that the Applicant was likely to cease work through stress or depression. Nothing was said to them or was apparent from the Applicant's work that he was finding such great difficulty that it would be likely that he would not be able to continue if an urgent decision was not taken. The Applicant's productivity continued as normal. He made no complaints to anyone as to any problem in carrying on at this time."

8. Those were clear findings of fact by the Tribunal which it is not open to us to go behind and at sub paragraph (n) dealing with the delay in making the arrangements, they hold the delay was not unreasonable given the decisions which had to be taken against the Respondents state of knowledge as to the level of the Applicant's impairment.
9. Accordingly it seems to us that the criticisms which were made of the Tribunal's decision are essentially criticisms of decision of fact which cannot possibly be said in the light of the evidence to be perverse. The Tribunal had held that the employers were not aware and by implication could not reasonably have been aware of the additional problems caused to the Appellant at work by reason of his depression and that there was no obligation on them to speed up the process of making adjustments. In our view the Tribunal were sympathetic to the Appellant's needs in so far as they were communicated to the Respondents. They considered all the evidence in the case about the steps which the Respondents took and there is no point of law which in our judgment emerges by way of criticism of their decision. For those reasons this appeal will be dismissed.