United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No Appearance or Representation By or on Behalf of the Appellant
For the Respondent	No Appearance or Representation By or on Behalf of the Respondent


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This appeal was heard before us on 20 November 2003. We reserved our Decision and judgment was delivered on 21 January 2004. We dismissed the appeal against the Decision of the Employment Tribunal in respect of constructive unfair but dismissal allowed the appeal in respect of disability discrimination and ordered that matter be remitted for re-hearing to a differently constituted Employment Tribunal.
2. By an application in writing dated 16th January 2004 the Appellant made two applications. They were:-

(i) For a review of our decision in relation to the consequential order made in respect of the disability discrimination claim;

(ii) For permission to appeal in relation to our decision concerning the constructive unfair dismissal claim and the disability discrimination claim (in the latter case in the alternative to the application for review).

3. By written representations dated 22 January 2004 the Respondent submitted that (i) we should grant the Appellant's application for a review but (ii) refuse permission to appeal.

Application for a Review

4. The basis for the application for a review is that in giving judgment we overlooked the second and third points raised by the Appellant in relation to its appeal on disability discrimination. Those two points were (a) that the refusal to offer Mrs Armstrong her old job back on exactly the same terms was not an act of discrimination and (b) that that treatment was justified.
5. We agree to a review because (a) we are satisfied those points were argued before us at the original hearing and (b) a decision of either or both points in the Respondent's favour would obviate the need for a further hearing before a fresh Employment Tribunal.

The Disability Discrimination Claim

6. In our original decision (Judgment 21 January 2004), allowed the Respondent's appeal on the ground that the Employment Tribunal had found that there was disability discrimination against Mrs Armstrong but in doing so had taken account of the whole of its findings of fact in relation to the claim for constructive dismissal.
7. This was an error of law because the only legal issue in relation to disability discrimination before it was that contained in paragraph 24 (3) of the Originating Application, namely that the Appellant was treated less favourably by the Respondent by:

"Refusing to reinstate the Applicant into her original position as Administrative Officer with the same duties within the Fraud Squad."

Employment Tribunal Decision paragraph 3.

8. As we pointed out in our original judgment any other alleged grounds of disability discrimination had been struck out by an earlier Employment Tribunal on 11 December 2002 on the grounds that they were out of time and it was not just and equitable to extend time: Employment Appeal Tribunal judgment paragraphs 32 -35.
9. Section 5 (1) of the Disability Discrimination Act 1995 provides as follows:

"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."

10. In relation to the Section 5 (1) (a) point, it is clear that the Employment Tribunal did refer to the leading case of Clark v TTG Limited trading as Novacold [1999) IRLR 318. It misapplied that case to the facts of this case because it looked at the whole of the treatment of the Applicant rather than applying Clark to the sole question which it was permitted to consider and which is set out above. It also appears to have failed to consider the Respondent's submission based on London Clubs Management Limited v Hood [2001] IRLR 719 to the effect that the "refusal" to offer Mrs Armstrong a return to work with precisely the same job content she had carried out prior to 24 June 1999 was the application of the Respondent's policy (pursuant to its contractual entitlement) that no-one had the "right to a job" and that the employee's duties could be varied within the applicable grade. In other words the reason for the refusal was not Mrs Armstrong's disability. In our judgment this is a persuasive argument and we accept it. It follows that the Employment Tribunal were wrong in reaching its decision that there was disability discrimination in this case for two reasons. First, for the reason given in paragraphs 32-35 of our original Decision and second, because the reason for the alleged act of discrimination was one which did not treat Mrs Armstrong less favourably than the Respondent treated or would treat others to whom the policy applied whether disabled or not: Disability Discrimination Act Section 5(1)(a). There was simply no evidence before the Employment Tribunal which would have justified it drawing such an inference.
11. We turn to the question of justification. It is necessary for us to refer to Section 5 (3) of the Disability Discrimination Act 1995 which provides as follows:

"5 (3) Subject to subsection (5) for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."

12. The reference to subsection (5) is a reference on to Section 6 (the duty of an employer to make adjustments). Although there was a claim in the Originating Application under Section 6 of the Disability Discrimination Act 1995 (see paragraph 24 (1): Employment Appeal Tribunal Bundle page 47) that claim had been struck out by an earlier Employment Tribunal on 11 December 2002. It was therefore not before the Employment Tribunal in this case.
13. Although the Employment Tribunal referred to The Post Office v Jones [2001] ICR 805, it misapplied it in this case. First, the sole question before it in relation to disability discrimination was "refusing to reinstate the Applicant into her original position as Administrative Officer with the same duties within the Fraud Squad". Instead the Employment Tribunal looked at all the other possible allegations of less favourable treatment and failed to look at the issue of justification as applied to the sole issue of alleged disability discrimination before it.
14. Second, if the Tribunal had focused on the actual ground of less favourable treatment relied on and considered whether that treatment (the offer to Mrs Armstrong of a job in the same grade and in the same Department, but with partially different duties), was justified, the issue becomes very different. There was no medical evidence on behalf of Mrs Armstrong or otherwise that she had to return to a job with the same content (despite her claim in evidence that it would have been too "stressful" to learn to perform any new task). Nor was there any medical contra-indication of the provision of a somewhat different job. The medical evidence before the Employment Tribunal was directed to the physical demands of her job, and not to its content. The reasons relied on by the Respondent i.e. its contractual entitlement to vary the content of its employees' duties and the need to have the work in question done were both material and substantial factors. In our judgment they justify any less favourable treatment of Mrs Armstrong.
15. It follows from the above that we find against the Appellant under both limbs of Section 5 (1) of the Disability Discrimination Act 1995. The appeal against the Employment Tribunal's findings of disability discrimination are therefore allowed and the claim for disability discrimination is therefore dismissed. To that extent we vary the order made by us on 21 January 2004 and do not remit the claim for disability discrimination to a fresh Employment Tribunal.

Permission to Appeal to the Court of Appeal

16. The Appellant has made a written application seeking permission to appeal to the Court of Appeal against that part of our original decision which dismissed its appeal against the Employment Tribunal's finding of constructive unfair dismissal. We have carefully considered the written representations made by both the Appellant and the Respondent. We see no error of law in our original decision and we refuse permission to appeal.