Appeal No. EAT/197/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 March 2001

Before
THE HONOURABLE MR JUSTICE HOOPER
MR J R CROSBY
MR B GIBBS

MR W J DAVIES	APPELLANT

VOSPER THORNEYCROFT (UK) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A FREER
Solicitor
Messrs Pattinson & Brewer
Solicitors
71 Kingsway
London WC2B 6ST	
For the Respondent	MR S BELLM
Solicitor
Messrs Donne Mileham & Haddock
Solicitors
100 Queens Road
Brighton 
East Sussex BN1 3YB	

MR JUSTICE HOOPER

1	We have unanimously decided that this appeal fails on the ground raised by Mr Bellm, namely that the point now taken by Mr Freer was abandoned before the Tribunal and that the Tribunal could not be expected to examine it.  

2	Mr Davies appeals from the decision of the Employment Tribunal sitting at Southampton, Chairman Mr S J W Scott, dismissing his claim for unfair dismissal and unlawful discrimination on the grounds of disability.

3	The hearing took place on 10 March, 27 April and 7 June 1999, and the decision was sent to the parties on 10 September 1999.  There were, we are told, no oral submissions at the conclusion of the hearing.  The Tribunal asked for written submissions to be submitted.  They were submitted and we have examined them.  Thereafter the Tribunal asked for further written submissions about a decision in the Court of Appeal.  We do not need to concern ourselves with those submissions.

4	Unfortunately the Chairman’s notes have been destroyed and we are unable therefore to rely upon them.  The explanation for that having occurred is to be found in a letter dated 13 March 2001. 

5	On 1 February 1993 the Appellant began employment with the Respondent as a welder.  On 27 September 1996 he was dismissed on the grounds of redundancy.  On 7 October he was re-employed under a continuous series of short term contracts as a joiner, most of which were between four and eight weeks’ duration, the longest being for three months.  On 23 January 1998 the Appellant was given a contract for the period 27 February 1998 to 24 April 1998.  
On 26 January 1998 the Appellant unfortunately suffered an accident and fractured his left hip.  On 17 February he underwent surgery to stabilise the fracture.  

6	On 24 March 1998 the Respondent’s Human Resources Manager, Mr Morley, received a report from Nurse Hamilton that in her view the Appellant would not be fit to return to work for at least 3 months.  Subsequently the Respondent told the Appellant that his contract of employment would terminate on 24 April 1998 and that it would not be renewed.  In a later letter Mr Morley wrote to Mr Stokes, the Appellant’s trade union representative:

“We reviewed the situation when Mr Davies’ contract was due to expire.  There was no prospect of Mr Davies returning to work in the near future and his sick pay had expired.  Therefore we could see no advantage either to the company or to Mr Davies in extending his contract further.”

7	Two other joiners who had been engaged in a series of short-term contracts had their contracts renewed from 24 April 1998.  

8	The Tribunal had earlier reached the unanimous conclusion that the Appellant was a disabled person within the meaning of section 1 of the Disability Discrimination Act 1995 (the “Act”).

9	Section 4(2)(d) of the Act provides that it is unlawful for an employer to discriminate against a disabled person whom he employs by dismissing him or subjecting him to any other detriment.  The Tribunal found that the failure to renew the fixed-term contract was a dismissal for the purposes of the 1995 Act and that, if the Tribunal was mistaken in that conclusion, the Respondent had in any event subjected the Appellant to a “detriment by failing to renew his fixed-term contract”.  (Paragraph 33).

10	In the light of that finding the Tribunal turned to consider section 5(1) of the Act, which provides:

“….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.”

Given that the two other joiners were granted short-term contracts, the Tribunal found (in paragraph 37) that by not granting the Appellant a new contract he was treated less favourably for the purposes of section 5(1)(a).

11	The Tribunal then went on to consider whether or not the treatment in question was justified under section 5(3) of the Act, which provides:

“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.”

We shall return to subsection 5 shortly.  

12	The Tribunal accepted that if the Appellant had been granted another short-term contract on 24 April 1998 the maximum duration of such a contract would have been 3 months.  The Tribunal also found that the Respondent had proved that, at the time it took its decision to discontinue his employment, the Appellant was incapable of carrying out the physical functions which were an inherent part of his work.  The Tribunal found that the Respondent’s reasons for not renewing the contract were both material to the circumstances of the case and substantial (Paragraph 39).

13	The Tribunal stated that section 5(2) had not been mentioned by the Appellant’s representative when opening the case.  It accepted Mr Bellm’s argument that the Appellant had not brought a case under section 5(2) of the Act.  In his Skeleton Argument prepared for this hearing, Mr Freer concedes that:

“No case was made on behalf of the Applicant directly under section 5(2)” 

Section 5(2) provides:

“For the purposes of this part an employer also discriminates against a disabled person if:-
(a)    he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
(b)   he cannot show that his failure to comply with that duty is justified.”

14	However the Tribunal found that section 6 was relevant because of the relationship between sections 5(1), 5(5) and 6 of the Act because of the:
“the relationship between sections 5(1), 5(5) and 6 of the Act”
and considered 
“the relevant issues relating to section 6, for the purposes of section 5(5) of the Act.”

15	Section 5(5) provides:
“If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty.”

Mr Bellm concedes before us that the Tribunal was right in its conclusion that section 6 was relevant. 

16	Section 6(1), 6(2) and 6(3) provide:
“(1)    Where 
(a) any arrangements made by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer, place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.  
(2) Subsection (1)(a) applies only in relation to -
(a) arrangements for determining to whom employment should be offered;
(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.
(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1) -
(a) making adjustments to premises;
(b) allocating some of the disabled person’s duties to another person;
(c) transferring him to fill an existing vacancy;
(d) altering his working hours;
(e) assigning him to a different place of work;
(f) allowing him to be absent during working hours for rehabilitation, assessment or treatment;
(g) giving him, or arranging for him to be given, training;
(h) acquiring or modifying equipment;
(i) modifying instructions or reference manuals;
(j) modifying procedures for testing or assessment;
(k) providing a reader or interpreter;
(l) providing supervision.”

17	The Tribunal concluded that the Respondent had failed to consider its duties under section 6 of the Act and went on to say:

“41.  Notwithstanding that the Respondent failed to consider its duties under the 1995 Act, the Tribunal has considered whether there were, in fact, any steps which the employer could reasonably have taken, in all the circumstances of the case, to avoid the Applicant’s employment being brought to an end on 24 April 1998.  Since the Applicant was clearly unfit to return to work as a joiner, the Tribunal finds that it would have been reasonable for the Respondent to consider whether there were any adjustments it could make which would result in the Applicant being employed in some other capacity within the maximum period of the temporary contract which could have been agreed on 24 April 1998, i.e. for a period of three months.  
42.  The Tribunal finds that there is no merit in the Applicant’s claim that Section 6(3)(f) relates to a step which the Respondent could reasonably have taken; simply in allowing the Applicant to be absent for rehabilitation, assessment or treatment was not appropriate in the circumstances of this case, since such circumstances only apply where the employee is capable of carrying out work, hence the reference to absence “during working hours”.
Section 6(3), however, contains only examples of steps which an employer may have to take in order to comply with Section 6(1).  The Tribunal has considered whether the Respondent had other obligations.  During the hearing, it was suggested that light welding work might have been found for the Applicant in the Respondent’s Light Plate Department.  There was no evidence that any vacancies in that Department existed at the relevant time.  Although the welding work was carried out in a sitting position, the Tribunal is satisfied on the evidence that some degree of weight lifting, both on the bench and from the floor to the bench, would have been required. The Applicant claimed in his evidence that at the date of the hearing he was fit to do that work, but did not claim that he would have been fit to do it on 24 April 1998.  Further, he produced no medical evidence in support of his claim.  Indeed, the Applicant told the Tribunal that he had not looked for any lighter work and had not discussed with his Surgeon, at any stage, whether he was fit to return to his work or look for lighter duties.  When asked why this was so, the Applicant replied “Why should I mention it?”  Having heard and seen him give evidence, the Tribunal takes the view that the Applicant had developed a negative and defeatist attitude to the prospect of returning to work in any capacity for the Respondent.  Such demotivation might well have been caused by the very real difficulties experienced by the Applicant in consequence of his injury, but the Tribunal was not satisfied that the Applicant had the drive or the initiative to take up alternative work with the Respondent, even if such had been available.  The attitude of the Applicant is, in the judgment of the Tribunal, one of the “circumstances of the case” which it has to take into account when applying Section 6(1).
43.  For all these reasons, the Tribunal finds that the Respondent was not under a Section 6 duty in this case.  If the Tribunal were found to be wrong in that conclusion, on the ground that the Respondent failed to consider what steps could be taken in order to prevent the Applicant’s disability having the effect of bringing his employment to an end, the Tribunal would find that such failure was justified on the ground that such consideration would not have resulted in a Section 6 duty arising.
44.  The Tribunal concludes, therefore, that the Respondent’s treatment of the Applicant was justified pursuant to Section 5(3) of the 1995 Act and that the Applicant had failed to prove that the Respondent discriminated against him for the purposes of Section 5(1) of the Act.  The Applicant’s claim fails and is therefore dismissed.”  

18	It is submitted by Mr Freer, on behalf of the Appellant that the Tribunal did not deal with a submission made on behalf of the Applicant and to be found in paragraph 40 of the Reasons:

“the time for recuperation should have been allowed, i.e. extended sick-leave, and that some while after the termination of his employment the Applicant could have been re-employed in the same job or in a different capacity.”

To put that submission in another way, it was being argued, on the Appellant’s behalf, that he could have been stood down (or “parked”) and that at some time in the future.  If he was able to be employed as a welder (or in some different capacity), then the employer would have to give consideration to re-employing him.  It was not suggested that there would be a duty to re-employ, whatever the circumstances might be.  Consideration should, however, then be given to his re-employment.  

19	Furthermore, it was submitted by Mr Freer, that that is what the Appellant should have been told at the time; if he had been told that then it may well be that he would not have developed the “negative and defeatist” attitude which he was subsequently to develop.  Mr Freer made the point that the Tribunal’s task is to look at the situation as at the time that the decision was made by the employer. 

20	Mr Bellm makes two points.  First, the argument summarised in paragraph 40 was abandoned by Mr Stokes at the hearing.  Secondly, he submits that, in any event, that could not be a reasonable adjustment which could justify the section 5(1) treatment.  It is not necessary for us to deal with the second of those submissions because of our conclusions on the first.  

21	Immediately following the passage setting out the submission in paragraph 40 can be found the following, albeit set out in a new and unnumbered paragraph:

“Later in the hearing, after negotiations between the parties, Mr Stokes informed the Tribunal that the Applicant “no longer seeks reinstatement and that whether he could work now or whether there could be work available for him in the future is no longer a factor in any issue” [underlined]

22	The Tribunal then referred to the closing submission made on behalf of the Respondent that the Applicant had not brought a case under section 5(2).  Given that there were no oral submissions, that must be a reference to the last page of the written submissions presented to the Tribunal by Mr Bellm.  On the last page we find the following:

“s.5(2) DD Act - Adjustments.
The Applicant contended initially that the Respondent was under a duty to make adjustments by continuing to engage the Applicant and then finding an alternative role for the Applicant.  In view of the fact that the Applicant did not wish to pursue the point regarding alternative work the Respondent makes no submissions.  In any event the Respondent contends that it would not be reasonable to expect the Respondent to have continued the engagement in April 1998.”

Mr Bellm laid stress on the use of the word “then” and submitted to us that what he was there saying was that there had been a change in the Appellant’s case, and that the matters there set out no longer needed to be considered.  We do not find that this paragraph puts the matter beyond doubt.  

23	There is further support for our conclusion in the fact that the Tribunal did not deal with the submission having set it out.  That suggests very strongly that it had been abandoned. 

24	We turn again to the passage stating that the Applicant:

“no longer seeks reinstatement and that whether he could work now or whether there could be work available for him in the future is no longer a factor in any issue”

In a letter sent to the Registrar on 13 March the Chairman writes that this was a direct quotation, as it so obviously is.  What did Mr Stokes mean by this?  It is submitted by Mr Freer that this was a concession relating to remedy.  That might be an acceptable interpretation but for the addition of the words “no longer a factor in any issue”.  It seems to us that Mr Stokes was telling the Tribunal that the submission now being put forward on behalf of the Appellant had been abandoned.  Any doubts that we entertain about that are, in our judgment, fully resolved by examining the written submissions of Mr Stokes. Mr Stokes makes no reference to the submissions now being made by Mr Freer.  In our judgment, that is decisive of the matter. The submission now being made, as interesting as it is, was not maintained before the Tribunal.  This appeal therefore fails.