MRS J THORNHILL v LONDON CENTRAL BUS CO LTD [2000] UKEAT 463_99_0304

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 463_99_0304

Case No Appeal No. EAT/463/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS J THORNHILLAPPELLANT

LONDON CENTRAL BUS CO LTDRESPONDENT

Before

Mr Justice Burton Mr P M Smith Mr T C Thomas

Date 3 April 2000

[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED For the Respondents MR I MacCABE (of Counsel) Messrs David Wagstaff & Co Solicitors The Avenue March Cambridgeshire PE15 9PS MR JUSTICE BURTON : This is an appeal by Mrs Thornhill, the Applicant, against a dismissal of her complaint by the Employment Tribunal at London (South) of her application against the Respondent, London Central Bus Co Ltd, after a two day hearing on 14th and 15th January 1999. Mrs Thornhill has not appeared before us today, and we have had the benefit not only of the reasons of the Employment Tribunal delivered at length in a unanimous decision given on their behalf by Ms Stacey, but also of two skeleton arguments put in on behalf of the Respondent, one effectively on a bullet point basis, and one more detailed skeleton argument annexing the relevant case of Goodwin v The Patent Office

[1999] IRLR 4

. Upon the non-appearance of the Appellant, this appeal must, in any event, be dismissed, but we do not do so without indicating that we have considered carefully the Notice of Appeal and the Respondent's skeleton argument in response to it, and are satisfied that there is no substance in the appeal for the reasons there set out, no skeleton argument having been lodged, contrary to the Rules, on behalf of the Appellant, quite apart from no attendance by her today.

[2]Put, very shortly, the Appellant alleged that she was disabled within the meaning of the Disability Discrimination Act 1995 .

[3]The grounds upon which she alleged that she was so disabled were that she suffered from non-insulin dependent diabetes which resulted, among other symptoms no doubt, in her passing urine frequently. The Tribunal found as a fact that she was sometimes able to go for three hours without needing to visit the lavatory, and the frequency with which she would need to go varied normally from somewhere between 30 minutes to one hour. She is able to work, the Tribunal found, in her occupation which by the time of the Tribunal she had taken up, as a part-time cleaner, and carry out her everyday activities such as shopping, visiting friends and going about her business. The doctor's certificate which was before the Tribunal was to the effect that she was suffering from non-insulin dependent diabetes, was taking tablets for that condition and had a history of passing urine frequently.

[4]The Appellant was a driver employed by the Respondent, and the problem which caused her to run up against continued disciplinary proceedings arose out of her breach of Rule 22 relating to timekeeping and the maintenance of regular bus intervals on the road. She apparently committed the disciplinary offence in breach of that rule described as 'early running', which appears to mean getting ahead of schedule so that the bus drove quicker than it should do, passed bus stops where people might have been expecting there to have been a bus a fixed times, earlier than she should do, and thus getting through her schedule more quickly than she should do, and getting off early as a result. That continued over a period and resulted in a number of warnings leading to a formal final caution and her being put on special probation and then after further period, when that special probation had in the first instance expired, a further final caution. Thus when it came to yet another breach, the Respondent, after a full consideration when she was represented by a trade union official, concluded that 'early running' was an important offence, it was important that buses ran on time and if the Appellant had genuinely to go to the lavatory, she could have stopped on route. In those circumstances, the Respondent dismissed the Appellant and she appealed to the Employment Tribunal.

[5]The Employment Tribunal is required under the 1995 Act and with the guidance of the Goodwin case, to look at four factors in a case like this, to see whether there is a relevant disability. The first factor is whether she is suffering from a physical or mental impairment. The Tribunal found that she had such a physical impairment by virtue of her diabetes. Secondly, it had to be concluded as to whether such physical impairment had a long-term affect, and the Tribunal concluded that on the evidence before it, it was long-term, namely that the affect complained of, which was that she was caused to want to pass urine more frequently than others without that condition, was long-term. But the third and fourth questions arose out of the requirements of section 1 of the 1995 Act, which I read:

"Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."

Thus the third question, is whether there is such an 'adverse effect', and the fourth is whether it is 'substantial'.

[6]Paragraph 4(1) of Schedule 1 relates to the definition of ability to carry out normal day-to-day activities. There is what the Tribunal correctly described as an exhaustive definition of those words in paragraph 4(1) of Schedule 1. That paragraph reads as follows:

"An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following- … (d) continence …"

The Tribunal concluded that, although there was a long-term condition which amounted to a physical impairment with a long-term affect, the problem that the Appellant was suffering from did not amount to a substantial and long-term adverse affect on her ability to carry out normal day-to-day activities. The finding of facts that the Tribunal made were as follows:

"… Over the past few years the Applicant has been incontinent on a couple of occasions. She find that she is able to manage whilst sitting down, but at the end of her journey (she is a bus driver) she needs to rush out and find the first lavatory that she can. She does not consider herself to be incontinent, but experiences the urge to go to the lavatory frequently."

[7]The matters which the Tribunal, in the light of those findings of fact, had to look at were limited by the exhaustive definition. The impairment was only relevant if it affected continence and of course it had to do so to a substantial degree. The Tribunal concluded, in the light of the medical evidence and the facts that they found, that she had only been incontinent on a couple of occasions in the past few years and that although she had to go to the lavatory more often than others, she could sometimes go for three hours without needing to visit the lavatory, and that the discomfort she no doubt felt when waiting longer than she might have wished to have waited while finishing off a bus journey, that this was not such as to cause or amount to incontinence, over and above the couple of occasions mentioned in the previous years. Thus, frequency of micturition, if it did not lead to incontinence, did not thus itself affect continence, alternatively, if it did, it did not do so on the facts of this case substantially. That is a finding of fact which the Tribunal came to, which it was perfectly entitled to come to, and to which it accurately applied the terms of the statute. In those circumstances, it correctly found that the Appellant was not disabled, alternatively, it was a conclusion to which it was entitled to come.

[8]So far as the dismissal is concerned, the Tribunal clearly considered the matter fully and against the background to the various cautions. A question was raised by the Appellant, which the Tribunal records in paragraph 32, that the Tribunal was "invited to find that the Respondent failed to find any alternative employment available to the Applicant or enquire whether there was suitable alternative employment, notwithstanding their knowledge of her medical condition." On the other hand, they record the submissions for the Respondent that it was "important that buses ran on time and if the Applicant had genuinely to go to the lavatory she could have stopped on route." . Those rival submissions were before the Tribunal when they came to consider the Respondent's dismissal of the Appellant as a bus driver because of her continuous breach of Rule 22. In paragraphs 38 to 42 they record as follows:

"38. We find that the employer did act reasonably in all of the circumstances. The Respondent genuinely believed in the Applicant's misconduct, as the Applicant had admitted early running of 1 February 1998 and the previous incidences which had resulted in the two previous final cautions for early running. We preferred the Respondent witness evidence and the evidence of the documents that there was no dispute as to the length of time of the early running on 1 February 1998. The Applicant sought to persuade us at the Tribunal that she had admitted only to being some two or three minutes late on 1 February and not the ten minutes claimed by the Respondent. There were inconsistencies in the Applicant's evidence both before us and in comparison with an examination of the documents and we do not believe her evidence of being only two to three minutes late and having explained this at the time at the various disciplinary and appeal hearings. 39. No appeals against the previous final cautions were administered and the offence appeared, from the documentation, to have been admitted at the time. 40. The Respondent sufficiently investigated the alleged misconduct in the light of the fact that the Applicant admitted the early running. 41. The Respondents were entitled to treat the Applicant's behaviour as justifying dismissal given the previous final warnings of the consequences of repetition of the same offence and the Respondent acted within procedure. 42. We remind ourselves that it is not our job to place ourselves in the shoes of the Respondent and that we must consider whether what the employer did was within the band of reasonable responses for an employer to make to the employee's conduct. We find their responses to have been reasonable. The Applicant had been given chance after chance and previous final warnings had not deterred her from early running the bus."

[9]We can find no ground for challenge to the conclusion that the Respondent acted reasonably in treating the continuous breach of Rule 22 as both in itself serious misconduct and sufficient to merit a conclusion to which the Respondent, on the Tribunal's findings, came reasonably in this case, that the Appellant was not unfairly dismissed.