United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BROWN (of Counsel)
For the Respondent	MS ELLENBOGEN (of Counsel) Instructed By: Messrs Barnes Marsland Solicitors 51 Hawley Square Margate Kent CT9 1NY

JUDGE PETER CLARK:

1. This is an appeal by Mr Roger Thorold, the Applicant before the Ashford Employment Tribunal, against that Tribunal's reserved decision promulgated with extended reasons on 24 January 2001, dismissing his complaints of unfair dismissal and disability discrimination brought against his former employer, the Respondent Martell Press Ltd.
2. Background

The Respondent is a small company of printers and stationers. The business is split into 3 parts; retail sales, printing and a discount office supplies warehouse. The retail sales outlet is in Cliftonville, Margate. The director responsible for that shop is Mr Henry Martell. The Appellant, who commenced his employment with the Respondent in February 1981, was at all relevant times the full-time manager of the Margate shop, where 3 shop assistants were employed.

3. In June 1999 the Appellant began to experience back pain which gradually increased in intensity. It seems from his General Practitioner's notes that problems, albeit not disabling, went back to the 1970's. He was born on 20 November 1944. Initially he attended an osteopath for treatment. He was off work for 2 weeks in July. He managed to return to work but on 9 September 1999 he went off sick again, never to return to work for the Respondent.
4. He received both statutory and contractual sick pay until March 2000, when payments ceased. That month he saw Henry Martell to discuss a return to work. The Appellant raised the question of returning on a part-time basis. Mr Martell was non-committal and suggested that medical reports on the Appellant's condition be obtained. The Appellant agreed and on 8 May 2000 he saw Mr James Casha, Consultant Orthopaedic and Spinal Surgeon, who reported on 10 May. At the same time a report dated 12 May was obtained from the Appellant's general practitioner, Dr Attwood.
5. Mr Casha noted that the Appellant's duties as shop manager included a degree of lifting and carrying, although the Appellant told him that he had asked others to do the heavy lifting work for him due to an old left shoulder injury. Mr Casha found that, on MRI scanning, there was a small disc protrusion at the L4/5 level in the lumbar spine without nerve root compression or canal stenosis. He concluded that the Appellant had suffered back and leg pain secondary to facet dominant mechanical back pain over the past 10 months. He agreed that the gradual return to work, with a gradual increase in hours was desirable. There was a risk of further relapses, the patient likely to have good days and bad days. There was no guarantee that he would be able to cope with a full day's work, the chances of his being able to return to full-time work being put at 40 to 50 per cent.
6. He still had marked limitation in his capability, and would have problems with lifting and carrying. The general practitioner was of the opinion that the Appellant's back pain would continue either as a continuous niggly pain and/or intermittent more severe attacks. Major bending and lifting was out. He needed to sit regularly in order to take the weight off his legs. He recommended an assessment by an occupational health physician.
7. Henry Martell and his brother Charles, the directors of the company, considered these reports. They took into account the prohibition on bending and lifting, bearing in mind the need for the shop manager to do so in serving customers. Also the need for frequent rests in a job which required the manager to be on his feet for most of the working day. There would be relapses and, in the consultant's opinion, only a 40 to 50 percent chance of the Appellant being able to return eventually to full-time working. They had been without a manager for 8 months; Henry Martell had been filling in for the Appellant but the business recently lost a major customer representing £1 - £1½ million in turnover. A net profit of £148,172 for the year ending 31 July 1999 eventually turned into a loss of £71,802 in the following financial year. Henry Martell's priority was to drum up business to replace that which had been lost.
8. They considered the possibility of alternative work for the Appellant within the business but none was available. In these circumstances the Respondent wrote to the Appellant on 8 June 2000 advising him that the contract of Employment had come to an end by reason of frustration. He was later replaced in September by the warehouse foreman, Gordon Sinclair. Thereafter, with the assistance of his trade union, USDAW, the Appellant presented an originating application to the Tribunal complaining of unfair dismissal and disability discrimination. The claims were resisted.
9. The Tribunal's Decision

The issues before the Tribunal were these:

(1) was the Appellant dismissed by the Respondent for the purposes:

(a) of the protection against unfair dismissal afforded by Part X Employment Rights Act 1996

(b) section 4(2)(d) Disability Discrimination Act 1995

or was the contract terminated by operation of law, that is frustration, in which case dismissal was not made out for either purpose.

(2) if the Appellant was dismissed, then

(a) was that dismissal fair or unfair, applying section 98 ERA and

(b) did the Respondent unlawfully discriminate against the Appellant by reason of his admitted disability, contrary to section 5(1) and section 4(2)(d) DDA

(3) did the Respondent discriminate against the Appellant contrary to section 5(2) DDA by a failure to comply with a duty under section 6 to make reasonable adjustments

(4) if a prima facie breach was made out by the Appellant under either question 2(b) or 3 above, could the Respondent show that their failure to comply with their duty under section 5(1) and section 5(2) respectively was justified?

10. On the facts as found the Tribunal answered those questions as follows:

(1) the Appellant was not dismissed under section 95(1) ERA or section 4(2)(d) DDA. The contract was frustrated.

(2) The second question did not, in those circumstances, arise

(3) The Respondent was not in breach of their duty to make reasonable adjustments under section 6 DDA

(4) Even had there been a breach of the Respondent's section 6 duty, the Respondent's failure was justified, applying section 5(2) DDA.

Against those findings this appeal is brought.

11. The Appeal

It is, of course, axiomatic that our jurisdiction is limited to correcting errors of law. We can only interfere with the decision of the Tribunal where such error is made out. In this case we begin with a point of principle raised by Mr Brown. He submits that when considering whether or not a contract of employment has been frustrated, rather than terminated by one of the parties, there must be grafted on to the guidance provided in earlier cases beginning with the judgment of Sir John Donaldson in Marshall v. Holland and Wolf [1972] ICR 101 (National Industrial Relations Court), a case to which this Tribunal referred and followed in their reasons, the statutory obligations now imposed on employers by the DDA and in particular the duty to make reasonable adjustments under section 6.

12. We see the force of that submission as a matter of general principle. Just as, to take another example in modern employment law given by Mr Brown, parties to a contract of employment can reasonably foresee that a female employee may become pregnant and take statutory maternity leave, it could not in these circumstances be argued that during the period of such maternity leave the contract was frustrated and so ended. Similarly, we accept and Miss Ellenbogen does not argue to the contrary, that where reasonable adjustments will allow the employee to return to work, that is a relevant factor in determining whether or not the contract has been frustrated.
13. However, reverting to the present case, we cannot accept Mr Brown's submission that here the Tribunal fell into error by considering the question of frustration before looking at the duty to make reasonable adjustments under section 6 DDA. It is clear to us that the Tribunal considered, separately, the question as to whether or not the Respondent was in breach of their section 6 duty. They found that they were not. In these circumstances the first point simply does not arise. It might have been otherwise had the Tribunal found a breach of section 6 duty and that the contract had been frustrated, but that is not this case. In order to make good this submission, Mr Brown must satisfy us that the Tribunal's finding of no breach of the section 6 duty is wrong in law. We shall return to that later in this judgment.
14. Nor are we persuaded that the Tribunal misdirected themselves in their self-direction as to the doctrine of frustration of contract by following the guidance given by Sir John Donaldson in Marshall (104D – 106A). Mr Brown has referred us to the later case of Williams v. Watsons Luxury Coaches Ltd [1990] ICR 536 (EAT). We see nothing in that case, which conflicts with or alters the approach in Marshall. Specifically, we do not find this Tribunal's approach to be inconsistent with the summary of principles set out in the judgment of Wood at 541 H – 542 D in Williams.
15. Thus Mr Brown is thrown back on the argument, first that the finding of no section 6 breach, or if so, justification is made out by the Respondent and secondly the finding that the contract was frustrated prior to the Respondent's letter to the Appellant of 8 June 2000, was perverse in the legal sense.
16. As to that, we have considered the various points made by Mr Brown and answered by Miss Ellenbogen. We do not propose to traverse each in turn. Our conclusion is this; the Tribunal properly directed themselves as to the law; they found all the necessary facts, preferring where a conflict arose, the evidence of the Respondent's witnesses, they considered for example, the size of the business, the staffing arrangements, the physical layout of the shop in which the Appellant was employed, the requirements of his shop and the Appellant's medical prognosis.
17. Based on those findings of fact, the conclusions which they reached were in our judgment, permissible conclusions. Put another way, as Miss Ellenbogen submitted, it cannot be said that no reasonable Tribunal, properly directing itself could come to the conclusions, which this Tribunal reached.
18. In these circumstances we are unable to detect any error of law in the Tribunal's approach and consequently, this appeal must be dismissed.