United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr D Strang, Solicitor Of- Messrs Brechin Tindal Oatts Solicitors 48 St Vincent Street GLASGOW G2 5HS
For the Respondents	Mr A MacRae, Solicitor Of- Renfrewshire Council Legal Services North Building Cotton Street PAISLEY PA1 1TT


 


LORD JOHNSTON:

1. This appeal arises in a rather unusual way.
2. The parties were agreed that the issue to be determined at the preliminary hearing was, firstly, whether or not the appellant was disabled, secondly, whether or not such disablement is likely to last for at least 12 months and, crucially, thirdly, when the employer should have appreciated that that was the case.
3. The Tribunal state on page 9 of their decision the following:-

"We carefully considered the arguments advanced by the parties' representatives and concluded that it was not for this Tribunal to determine the date when the applicant became disabled. The issue for the Tribunal to decide is whether the applicant is disabled in terms of the Act: if she is, she may proceed to argue the merits of her claim; if she is not, then her claim cannot proceed."

4. Further down the same page the Tribunal go on to state:-

"We were of the opinion that the Greenwood case made clear that the Tribunal must consider the situation as at the time of the hearing. We therefore asked ourselves the question – has the definition of "long term" been satisfied as at the 1^st/2^nd May 2002. The answer to that question is Yes, as the effect of the impairment has lasted at least 12 months."

5. We are entirely satisfied the Tribunal has misdirected itself in this context.
6. It is quite impossible to assess whether or not an employer has a duty to make adjustments in relation to a disabled person, unless it is first of all determined that the person is disabled, secondly, that is likely to last for 12 months and, thirdly, the point in time when the employer should have appreciated those circumstances and therefore come under a duty to address them.
7. Mr Strang, appearing for the appellant, before us, suggested rather faintly that we should determine the issue but we consider that is not appropriate.
8. In these circumstances the matter is remitted back to the same Tribunal to determine, without the need for a further hearing, the vital question as to the point in time when the employer should have appreciated that the disability was likely to last for 12 months and therefore required some attention. This is indeed focussed by the Note in relation to the preliminary hearing to which we also refer.
9. This is a very unfortunate situation which should not have been allowed to happen considering the issue was placed firmly before the Tribunal. We trust it will address it as a matter of urgency.
10. In these circumstances and on this basis this appeal is allowed and the case is remitted back to the same Tribunal to obtemper these instructions.