Appeal No.	 EAT/1020/02/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	                  On 7 May 2003
Judgment delivered on 29 July 2003

Before
HIS HONOUR JUDGE PROPHET
MR K EDMONDSON JP
MR G LEWIS

MR D LAW	APPELLANT

PACE MICRO TECHNOLOGY PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS TESS GILL
(of Counsel)
Instructed by:
Disability Rights Commission
2nd Floor
Arndale House
The Arndale Centre
Manchester M4 3AQ	
For the Respondent	MR MARK SHRIVES
Solicitor
Messrs Hammond Suddards Edge
Solicitors
2 Park Lane
Leeds LS3 1ES	

HIS HONOUR JUDGE PROPHET
1	Mr Law submitted a complaint to the Leeds Employment Tribunal against his former employers, Pace Micro Technology plc of unfair dismissal and disability discrimination.  An Employment Tribunal under the chairmanship of Mr Burton, with Ms Ellin and Mr Cutler as the lay members held a hearing at Leeds extending over four days between February and July 2002.  Both Mr Law’s complaints were dismissed.  Mr Law was unrepresented at that hearing, and the employer was represented by Mr Shrives, solicitor.  

2	The Notice of Appeal from the employer led to a preliminary hearing before the Employment Appeal Tribunal on 17 September 2002 with Mr Justice Elias presiding.  That Tribunal ordered that there be a full hearing before the EAT.  We have convened today to hold that full hearing.  Mr Law now has the valuable assistance of Ms Gill of Counsel to present his appeal, and Mr Shrives again represents the employer.

3	The employers have submitted a cross appeal which seeks to overturn a finding of fact by the Employment Tribunal, but does not challenge, and indeed asks us to support the decision of the Employment Tribunal to dismiss both of Mr Law’s complaints.  When I drew the attention of both representatives to the judgment of Mr Justice May (as he then was) in Harrod -v- Ministry of Defence [1981] ICR 8, and gave them an opportunity of considering that judgment, Mr Shrives submitted that that case concerned an appeal rather than a cross-appeal, and that it could be distinguished on that basis.  We are not able to identify such a distinction.  As Ms Gill says, there is nothing in the legislation or the EAT Rules to distinguish a cross-appeal from an appeal, and we can see no reason why the principle in Harrod’s case should not apply so as to prevent our proceeding with the cross-appeal.  We have therefore decided that the cross-appeal cannot be pursued, and that the employer is limited to defending the appeal in the usual way.  Leave to appeal in the Court of Appeal on that issue, as sought by Mr Shrives, is refused.

4	Turning now to the appeal, a short statement of what happened to Mr Law is necessary to understand the submissions made to us by the representatives.  Mr Law was given notice of dismissal from his employment as Personnel/Health and Safety Manager in June 2001 to take effect towards the end of September 2001.  Mr Law had unhappily suffered health problems from November 1999 and was then working a three day week to accommodate his difficulties.  The employers were proposing to close the manufacturing side of their business.  They decided that they no longer needed a Personnel/Health and Safety Manager and thus emerged the prospect of Mr Law being redundant.  

5	However the personnel restructuring envisaged the employers having a Health and Safety Officer of lower status and salary to Mr Law, and for that post to be full time.  The employer would have been content for that post to have been filled by Mr Law.  The difficulty about that was that Mr Law was only willing and able to work three days a week at that time for health reasons, and the employer saw that new post only in terms of a full time position.  Furthermore Mr Law wanted the employers to pay him pro rata on his current salary, and that was unacceptable to the employers.  Consequently his notice of dismissal duly took effect.

6	Mr Law was unable to persuade the Employment Tribunal that he had been unfairly dismissed.  They found the reason for his dismissal to be redundancy and that his dismissal was fair.  On the disability discrimination complaint, however, Mr Law made progress.  The Employment Tribunal found that he was a disabled person within the meaning of the Disability Discrimination Act 1995.

7	Furthermore, they concluded that there had been a breach of the duty placed upon employers under section 6 of the 1995 Act to make adjustments.  At paragraph 24 of their Reasons, the Employment Tribunal said:
 “that by offering him work as a Health and Safety Officer only on the condition that the work was done on a full time basis, that put him at a substantial disadvantage in comparison with a person who was not disabled, and who would therefore have been able to work full-time.”

The step which the Employment Tribunal then found it would have been reasonable for the employers to have taken was to have offered him that post on a part-time basis, at least for a trial period.  

8	Pausing there, presumably there would still have been the issue of salary to determine, but the Employment Tribunal thought that that might have been agreed given further discussions on that matter.  

9	The Employment Tribunal then sought to guide itself on what was then the next step in their process of reasoning in respect of section 6.  They correctly reverted back to section 5(4) of the 1995 Act to consider the employers’ defence of justification for not taking that step.  It is that matter which has formed the main basis of this appeal.  The Employment Tribunal recognised, in accordance with section 5(2) of the 1995 Act that the employer’s failure would be justified if, but only if, the reason for the failure was both material to the circumstances of the particular case, and substantial.  

10	Ms Gill accepts that the Employment Tribunal correctly covered relevance (i.e material to the circumstances of the particular case) but submits that the Tribunal was wrong to find that the reason for the failure was ‘substantial’.

11	In that respect, the Employment Tribunal drew in aid the well known case of Jones -v- The Post Office [2001] IRLR 384.  By quoting fairly extensively from the judgments of Pill LJ and Arden LJ, Ms Gill through her Skeleton Argument and submissions to us today has argued that the resume by the Employment Tribunal of the principles emerging from Jones is incomplete.  However we are not persuaded that what the Employment Tribunal has said fails to encapture the essentials of the guidance provided by the Court of Appeal in that case.  

12	Ms Gill maintains that she is not challenging the judgments in Jones, and of course we know that she recognises that we are bound by that decision.  Her observation that in general terms Jones has tipped the balance too far in the employer’s favour no doubt arises from that case endorsing the limits of the Employment Tribunal’s ability to examine the employer’s position on justification.  

13	The interpretation of ‘substantial’ has undoubtedly been affected by the indication at paragraph 4.6 in the Code of Practice on Disability Discrimination that “substantial” is something “not just trivial and minor”.  Without that it is tempting to ask if “substantial” might have been more realistically interpreted to mean, say, “carrying substance”.  

14	Thus, and notwithstanding what may be discerned as doubts on the matter in the judgment of Pill LJ in the Jones case (at paragraph 21 of his judgment) as drawn to our attention by Ms Gill, it has to be accepted that Employment Tribunals can hardly be faulted if, on current guidance they work to “a very low threshold” for justification.  In this respect see the judgment of Lindsay J in Heinz -v- Kenrick [2000] IRLR 144 at page 146, and also Lord Johnson in Callaghan -v- Glasgow City Council [2001] IRLR 724 where he says (at page 726) “substantial means simply more than de minimus”.

15	Ms Gill submits that Jones indicates that evidence must exist to support an Employment Tribunal’s conclusion that that threshold has been reached.  However, Jones was a case where the issue of justification involved medical opinions.  Where, as in Mr Law’s case, the issue of justification turns on the employer’s views as to the needs of the business, then provided that the Employment Tribunal is satisfied that the employer is genuine on that matter, it is difficult to see how the Employment Tribunal can, under the limitations indicated in Jones, attempt to reassess those views.  We perceive from the Employment Tribunal’s Reasons that the employer went beyond merely stating that it required the post of Health and Safety Officer to be full time, but provided reasonable grounds for supporting that assertion.  

16	We are satisfied, therefore, that Mr Shrives is correct in submitting that, having regard to the principles set out in Jones by way of guidance to Employment Tribunals, the Employment Tribunal in this case was wise to be wary of substituting any views of its own as to what might have been further consideration by the employer of Mr Law’s personal position.  Instead it concentrated on whether they were satisfied that there was a creditable case forthcoming from the employer to justify, on a low threshold basis, their not taking the step of offering him the post of Health and Safety Officer other than on a full time basis.  

17	We are further satisfied that the Employment Tribunal’s conclusions in that respect were ones they were properly in a position to make.  It follows that the appeal in respect of justification is dismissed.

18	Ms Gill has also made some interesting submissions in respect of the Employment Tribunal’s finding that Mr Law was not dismissed for a reason relating to his disability.  We can see that if the issue of his being considered for the post of Health and Safety Officer is incorporated into the dismissal, then Ms Gill could well have a plausible argument for saying that, notwithstanding that for the purposes of unfair dismissal the principal reason for dismissal was redundancy, for the purposes of the Disability Discrimination Act the dismissal may have been for a reason related to disability.  

19	However in the event it is not necessary for us to resolve that because it is common ground between the two representatives that our conclusions in respect of justification apply equally to a complaint under the Disability Discrimination Act that dismissal was for a reason related to disability.

20	It follows that, in our unanimous judgment, this appeal falls to be dismissed.