MISS H R PORTER v LONDON BOROUGH OF CAMDEN [2000] UKEAT 212_99_2206

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 212_99_2206

Case No Appeal No. EAT/212/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS H R PORTERAPPELLANT

LONDON BOROUGH OF CAMDENRESPONDENT

Before

His Honour Judge David Wilcox Mrs M T Prosser Mr K M Young

Date 22 June 2000

[1]APPEARANCES For the Appellant MR S GRIFFITH (Representative) Free Representation Unit 4th Floor Peer House 8-14 Verulam Street London WC1x 8LZ For the Respondent MR M MULLINS (of Counsel) Instructed By: London Borough of Camden Town Hall Judd Street London NW1 2RU JUDGE DAVID WILCOX : This is an appeal against the decision of an Employment Tribunal held at London (North) on 9, 10, 12 and 13 November 1998. The Extended Reasons were sent to the parties on 1 December 1998. It is on a limited basis that we consider this appeal today following the preliminary hearing in this matter. It relates to the allegations of Disability Discrimination. The Tribunal it is clear applied the right tests in this case, sections 5 and 6 of the Act being appropriate here to consider. Those are set out in the terms of the Extended Reasons that are provided.

[2]The limited appeal grounds as are before us relate to three issues of fact. When were the employers apprised of the degree and type of disability suffered by the Appellant. In relation to a placement at Highgate and subsequently at Hampstead, did they act appropriately within the Act? We therefore go straightaway to consider the evidence before the Tribunal as found. What is, in our judgment, an omission in terms of their reasoning is their failure to refer to the Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability? This is a Code of good Practice. It is not necessary in terms of law, of course, for the Tribunal to recite the fact that it has looked at this but the thought processes and considerations set out in this Code of good Practice should be followed by a Tribunal looking at issues such as this.

[3]On the basis of the Code Mr Griffith, on behalf of the Appellant, has persuasively argued that had they had the recommendations of the Code uppermost in their mind, they would have taken into account the fact that the knowledge confidentially given to the Occupational Health Officer at the outset of the employment was knowledge that in fact is imputed to the employer as well. Secondly, it is argued in relation to the finding:

"2 … While she had begun to use a walking stick in 1996 her arthritis was not sufficiently serious prior to April 1997 to prevent her from carrying out her full duties including meeting with tenants and carrying out estate visits."

That this is a finding that in fact subsequent to April 1997 her arthritis was sufficiently serious to prevent her from carrying out full duties.

[4]There is drawn to our attention, by Mr Griffith, documentation that would tend to show that the employer not only had the imputed notice through the Occupational Health Officer, but would have had actual notice in memoranda and the observation of employers who knew that she had a disease that was progressive. In short, Mr Griffith said, not only actual but imputed knowledge and sufficient to warrant a prudent and careful employer being put on enquiry to raise facts and matters in relation to her disability. The disability is two-fold. It is extreme myopia and rheumatoid arthritis that gives her impaired mobility from time to time.

[5]We find that had the Tribunal directed itself as to the effect of the Code of Practice, they would have come to the conclusion that by the time they came to consider her move from Gospel Oak to Highgate, they would and should have known of her disability, and that it was disability in such kind as would affect the carrying out of her duties as set out in sections 5 and 6 of the Act.

[6]It is argued by the Respondent that they did not have that degree of knowledge, and there was nothing that would warrant imputing such knowledge to them constructively.

[7]Section 6 therefore bites here, bites at the time that she went to Highgate. She went to Highgate and she was on the fourth floor and there were only stairs there. It is clear that she had difficulty with the stairs and expressly apprised her employers of it. It is equally clear that in a practical and timely way, so found by the Tribunal, that within 24 hours of the matter having been brought to their attention, they made the requisite adjustment under the Act ensuring that she suffered no discrimination in consequence of her disability. She was in fact moved to Hampstead to an office, again on the fourth floor but having a lift.

[8]At paragraph 7 of the findings the Tribunal found that that the Appellant had reservations in relation to Hampstead should there be an evacuation problem. She thought there would be a difficulty. That was not a view shared by the Respondent in respect of the Hampstead office. She attended the Highgate office from 5 January 1998 for three days, the Hampstead office from 12 January until 1 April 1998. She was then moved to another location.

[9]The recital of evidence at paragraph 7, combined with the later conclusion at the end of paragraph 14 makes it clear that the Tribunal rejected the validity of her objection. "We find that the Respondent responded appropriately to the situation and at all times did what it could to assist. The Applicant has failed to prove that she was less favourably treated because she was disabled".

[10]In the Extended Reasons there is a paucity of recital of facts, nonetheless there is a sufficiency of facts found by the Tribunal that leads us to conclude unanimously that we cannot accede to the submission that there is an error in law or that in relation to the findings of disability and adjustment and reaction by the employer that this is a decision that can be characterised as perverse. We therefore dismiss the remaining, that is the amended grounds of appeal. We dismiss this appeal.