Appeal No.	EAT/0735/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 November 2001

Before
HIS HONOUR JUDGE WILKIE QC
MS J DRAKE
MRS R A VICKERS

MR J THOMAS	APPELLANT

LONDON BOROUGH OF HOUNSLOW	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR J SHEPHERD
(of Counsel)
Instructed by:
Law For All
PO Box 230
Brentford
TW8 9FL	

JUDGE WILKIE QC:
1.	This is an appeal by Mr Thomas against the unanimous decision of the tribunal dismissing his claim against the London Borough of Hounslow based on alleged unlawful discrimination on the grounds of his disability. 

2.	The tribunal sitting at London on 23rd and 26th March of this year decided to uphold Mr Thomas’ claim that he had been unfairly dismissed by the respondent and ordered a basic award of £1,035 to be paid to him. 

3.	The Notice of Appeal stated that the employment tribunal misdirected itself in that it failed to apply the test correctly. They concluded that the respondent had not failed to make reasonable adjustments but that the relevant adjustments would have been made when the appellant returned to work. In fact the appellant was unable to return to work because he was dismissed. Therefore, the Appellant contends, the respondent actions were in breach of s4(2)(d) of the Disability Discrimination Act 1995. 

4.	On first reading this would appear to focus on paragraph 67 of the decision in which the tribunal found as a fact that with regard to his back problems, the applicant had told the tribunal that his manager, Mr Gallagher, had told him that on his return to work, adjustments would be made to his duties as necessary. However, he had been dismissed on the grounds that he continued to be unfit for work, there being no indication of when he could return to work. 

5.	In the skeleton argument paragraph 5 reference is made to paragraph 67. The argument proceeds as follows

“However, the appellant was unable to return to work due to his disability and his subsequent dismissal. Therefore it is submitted that the respondent did not, in reality, make any reasonable adjustments in relation to the appellant’s back problems”

Then it goes on to assert that there was a failure to comply with the statutory obligation, not unlawfully to discriminate by failing to make reasonable adjustments. 

6.	It became apparent in the course of Mr Shepherd’s submission this morning that in reality the point being taken was other than that which appeared in the Notice of Appeal or was apparently canvassed in the skeleton argument. The point was being made that the Tribunal had failed at all to have regard to the fact that the respondent had failed to consider the suggestion by the applicant that he could, rather than return to the work which he was unable to do by reason of his disability at the time, re-train as a social worker for which employment his back pain disability would not be a problem. 

7.	Mr Shepherd was asked whether the tribunal had dealt with this at all in their decision and indicated that he could not find that they had. It appears, however, that they did have regard to it at paragraph 54, where there was reference to this suggestion, and a conclusion is recorded based on evidence that it was 

“unrealistic for the applicant to suggest that he should be re-trained as a social worker which was now a three year university course.”

8.	Therefore it is apparent that the tribunal were aware of this point and dealt with it in that way. Therefore, in our judgement there is nothing in this point. 

9.	The second way in which the appeal was argued this morning was that the tribunal failed to make available to itself evidence concerning the third comparator. The applicant had identified two comparators, Ms Danko and Ms Kennedy, but apparently referred to a third comparator, employee No. 16, as a result of some material which had been made available to the applicant on the day of the hearing. Mr Shepherd says that not withstanding the fact that the Tribunal was able in its reasoning to make, in paragraph 75, a clear distinction between the case of Mr Thomas and employee No. 16, nonetheless the Tribunal had failed sufficiently to inform itself to enable a proper comparison to be conducted. He acknowledged that he did not seek an adjournment in order for such further information to be made available to the Tribunal, either when he first became aware of employee No. 16, and the possibility of a comparison, nor when, in the course of the evidence, it became apparent that the witnesses for the respondent were unable to provide certain evidence in respect of No.16. 

10.	In our judgment, in the absence of an application to adjourn, which was refused, there can be no sensible basis upon which the alleged shortcomings of the evidence concerning the applicant and comparator No.16 could possibly be laid at the door of the Tribunal by way of a point of law or procedure as having any reasonable prospect of success. 

11.	Mr Shepherd referred us to the case of Heinz Co Ltd v Kenrick [2000] IRLR 144 in connection with the justification argument, the first argument, to which we have referred. It is noteworthy that that was an authority which the Tribunal was referred to and to which it did refer in the course of its decision. We have to say that this decision of this Tribunal is a lengthy, careful and methodical decision going through the various stages and questions in a sensible and logical fashion and, albeit the outcome is one that is unpleasing to Mr Thomas, we can find nothing in it which gives rise to any reasonable argument that they erred in law either in their decision or in the process of reasoning by which they came to that decision. Accordingly, we dismiss this appeal at this stage without requiring it to proceed to a full hearing.