BRITISH TELECOMMUNICATIONS PLC v MR D WILDING [1999] UKEAT 371_99_3006

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 371_99_3006Case No Appeal No. EAT/371/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BRITISH TELECOMMUNICATIONS PLCAPPELLANTMR D WILDINGRESPONDENT
Before
His Honour Judge John Altman Mr A E R Manners Mr P M SmithDate 30 June 1999
[1]APPEARANCES For the Appellants MR P THORNTON (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME (ELAAS) JUDGE JOHN ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London North for five days from 4 January 1999 in which the unanimous decision of the Tribunal was that there was unlawful discrimination under the Disability Discrimination Act and a finding of unfair dismissal and an adjournment of the remedies hearing. The Appellants appeal from the finding of unlawful disability discrimination, they do not appeal from the finding of unfair dismissal. The dismissal in this case was of a long standing employee who began work in February 1970 and who, in the latter years of his employment, suffered serious back injury. Over the last years of his employment the Appellants provided adjustments of quite an extensive nature, described in detail by the Employment Tribunal, to his working conditions to enable him to remain in employment until the latter period. He was unable to work from July 1997 until this matter was dealt with in March 1998. The Employment Tribunal found that the person intimately involved in supervising and maintaining in employment, and providing for the adjustments to the Respondent's working conditions, was a Mr Townsend. They clearly relied heavily on his evidence in paragraph 32 of their decision, he also being the person who made the decision to dismiss.[2]The Employment Tribunal found that his evidence was important, that he had received advice from Dr Sinha, the Occupational Health Officer, recommending medical retirement, and the Employment Tribunal found that he felt he had no option but to go along with it. They also found that his evidence was that he would, if necessary, be able to arrange the work pattern to accommodate the Respondent part-time. He had no discussions after receipt of the medical advice internally, about continued employment because he felt he was not in a position to question the process. On that basis, in paragraph 54, the Employment Tribunal found:
"We are satisfied that many adjustments had been [made] but at a time when the Applicant's dismissal was being considered no further adjustments were considered and the extent to which any further adjustment would or could prevent the dismissal [were not considered ] and this is confirmed in the fact that they did not consider part-time work for the Applicant [now the Respondent]. "
They then go on to consider whether this can be justified and they examine the evidence about that. They also considered the code of practice and the requirement for flexibility and whether there should be further advice before dealing with the dismissal of a disabled person. They then go on in paragraph 57 to say:
"In considering whether it is reasonable for an employer to make an adjustment we considered the fact that the Applicant was of senior management but overwhelmingly the evidence of Mr Townsend was that if they wished to keep Mr Wilding it was possible to make a further adjustment to allow him to work part-time as his physical needs had already been accommodated by the adjustments that had been made since 1994… We are satisfied that it was reasonable for the employer to make a further adjustment in this particular case."
And in paragraph 59 they say:
"We are satisfied that a reasonable employer dealing with a non disabled manager with such long service and experience would have arranged for a consultant to independently examine the employee to ascertain the capabilities of the employee and the prognosis as to whether that employee would be able to work different hours, at what level and in addition the manager would have consulted the employee having received the information to ascertain whether the employee would be willing to change his contract of employment in order to remain in work."
[3]Our attention has been drawn to section 6 of the Disability Discrimination Act, in which, in subsection 1, provides that:
"Where … any arrangements … place the disabled person at a substantial disadvantage …it is the duty of the employer to take such steps as it is reasonable, in all the circumstance of the case, for him to have to take in order to prevent the arrangements … having that effect."
It seems to us, that an arguable point of law arises on the face of the decision in the light of those words, bearing in mind that section 6 sets out examples of steps which an employer may have to take and then sets out a number of matters to which regard should be had in deciding whether it is reasonable for an employer to have to take a particular step. Mr Thornton seeks to argue, that as a matter of law, a Tribunal is bound to consider whether any step that is taken would have the effect of providing the sort of adjustment that would, in the circumstance of this case, preserve employment, albeit possibly part-time. We do note, however, that the words in section 6(4) are 'regard should be had to' and are not 'must determine'.[4]Bearing in mind the nature of the type of steps referred to in section 6, it does seem to us that there is an arguable point of law, as to whether in considering if an employer has taken such steps as is reasonable, it is necessary for a Tribunal, where it finds that there were further investigations that should have been carried out, to go on to make a finding as to whether those further investigations would, on a balance of probabilities, have been successful and to receive medical evidence to that effect. The argument therefore is whether the Tribunal is entitled to find that a failure to take steps to obtain medical advice and to explore the possibility of continued employment can constitute steps within section 6, without the Tribunal deciding whether those steps would have been successful.[5]That seems to us, the essentially arguable point on this appeal and in saying that it is an arguable point of law, we have had no opportunity and would not presume to form any judgment as to the merits of the final outcome. Much of the Notice of Appeal really impinges upon that point and in this type of case having considered the matter, we have resolved not to be unduly restrictive in the areas and points which can be argued and we permit this matter to proceed to a full hearing on the Notice of Appeal except for ground 6. Ground 6 contends that the decision of the Employment Tribunal fell foul of the requirement of a decision of a Employment Tribunal set out in Meek v City of Birmingham District Council (1987) IRLR 250 , in that it does not provide sufficient information for the parties to understand why they have won or lost. Having read what on the face of it is a long and careful decision from the Employment Tribunal, we need say no more than it seems to us that that ground is unsustainable. This matter will proceed to a full hearing on grounds 1-5 and should be listed for a full day in Category B, skeleton Arguments to be furnished not less than 14 days before the date listed for hearing.[6]Bearing in mind how long this hearing went on and the amount of detail that the Chairman helpfully included in her decision, we have been reluctant to impose the additional burden of Chairman's notes but we do accept in this case that it is necessary to ask the Chairman to provide notes of evidence of what we hope is a fairly limited part of the total hearing. That is the evidence of Mr Wilding, limited to his oral evidence of his capacity to do part-time work, the evidence of Mr Townsend limited to the oral references to part-time work, and the oral evidence of Mr Kurer, Dr Sinha and Dr White, the medical witnesses. We also direct that the papers before the Employment Appeal Tribunal should include both the written statements of those witnesses because we anticipate their evidence in chief was comprised within part of it and also the medical reports of those three doctors.