MR DAVID PEARSON v BERRYGATE HILL NURSERIES LTD T/A PREMIER PLANT PRODUCERS [2001] UKEAT 0579_01_0911

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0579_01_0911

Case No Appeal No. EAT/0579/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR DAVID PEARSONAPPELLANT

BERRYGATE HILL NURSERIES LTD T/A PREMIER PLANT PRODUCERSRESPONDENT

Before

His Honour Judge Wilkie

Date 9 November 2001

[1]APPEARANCES For the Appellant MISS Z RODAWAY (Representative) Humberside Law Centre 95 Alfred Gelder Street Hull HU1 1EP JUDGE WILKIE This is an appeal by Mr Pearson against a decision of the Employment Tribunal sitting at Hull which rejected his claims for discrimination on the ground of disability and unfair dismissal following a hearing which took place on 4 th March of this year with an extended decision sent to the parties on 22 nd March of this year.

[2]Miss Rodaway of the Humberside Law Centre has represented Mr Pearson before us, as she did below, and we have been greatly assisted by her written and oral submissions. She acknowledges, and we think correctly, that the unfair dismissal claim and the Section 5(1) discrimination claim really stand to fall on the outcome of the claim based on Section 5(2) of the Disability Discrimination Act 1995

[3]Section 5(2) provides that an employer discriminates against a disabled person if he fails to comply with a Section 6 duty imposed on him in relation to the disabled person and he cannot show that his failure to comply with that duty is justified.

[4]Section 6 imposes a duty on an employer to make adjustments and provides by subsection (1)(a) "Where any arrangements made by or on behalf of an 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."

[5]Subsection (3) sets out a series of examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1). They include:

"(3) (a) making adjustment to premises; (b) allocating some of the disabled person's duties to another person; (c) transferring him to an existing vacancy; (d) altering his working hours; (e) assigning him to a different place of work; (f) allowing him to be absent during work hours for rehabilitation, assessment or treatment; (g) giving him, or arranging for him to be given, training, acquiring or modifying equipment . . . . . (l) providing supervision."

[6]Section 53 of the Disability Discrimination Act 1995 provides for there to be a Code of Practice prepared by the Secretary of State in respect of the Act. Section 53(6) provides that "If any provision of a code appears to a tribunal or court to be relevant to any question arising in any proceeding under this Act, it shall be taken into account in determining that question."

[7]The Secretary of State has produced such a Code of Practice and our attention has been drawn to a number of paragraphs within that Code and in particular paragraph 3.3 which provides "It is possible to avoid discrimination using personal, or in-house knowledge and expertise, particularly if the views of the disabled person are sought. The Act does not oblige anyone to get expert advice but it could help in some circumstances to seek independent advice on the extent of a disabled person's capabilities. This might be particularly appropriate where a person is newly disabled or the effects of someone's disability becomes more marked. They also help to get advice on what might be done to change premises or working arrangements, especially if discussions with the disabled persons do not lead to a satisfactory solution."

[8]At paragraph 4.20 in the Code of Practice provides that "The Act gives a number of examples of "steps" which employers may have to take, if it reasonable for then to have to do so in all the circumstances of the case (s6(3). Steps other than those listed here, or a combination of steps, will sometimes have to be taken." It then sets out the steps listed in subsection (3) and under the heading "transferring the person to fill an existing vacancy" provides "If an employee becomes disabled, or has a disability that worsens so she cannot work in the same place or under the same arrangements and there is no reasonable adjustment which would enable the employee to continue doing the current job, then she might have to be considered for any suitable alternative posts which are available. (Such a case might also involve reasonable retraining.)"

[9]We have also been referred to paragraph 4.33 in the Code of Practice which is an answer to a question posed "Could an employer have to make more than one adjustment?" [Answer] Yes, if it is reasonable for the employer to have to make more than one adjustment." It gives an example of a woman who is deaf and blind being given a new job with her employer in an unfamiliar part of the building. The employer(i) arranges facilities for her guide dog in the new area

(ii) arranges for her new instructions to be in Braille and

(iii) suggests to visitors ways in which they can communicate with her.

[10]Finally paragraph 6.4 concerns promotion and transfer. That is a lengthy paragraph and our attention has been drawn, in particular, to the last of the four examples given "Someone disabled by a back injury is seeking promotion to supervisor. A minor duty involves assisting with the unloading of the weekly delivery van, which the person's back injury would prevent. In assessing her suitability for promotion, the employer should consider whether reallocating this duty to another person would be a reasonable adjustment."

[11]In this case the Tribunal made a number of findings of fact. They found that the Applicant had worked for the Respondent on two separate occasions from 1993 through to July 2000. He had not, in fact, actually worked for the Respondents since December 1997 due to a condition that was not diagnosed for some time but which was subsequently diagnosed from December 1997. There was sporadic contact between the Applicant and the Respondent. On a number of occasions the Applicant wrote to the Respondent seeking guidance as to what his future was. He made it plain, on all these occasions, that he was unable to return to work to do the job that he had been contracted to do, which was as a Greenhouse Labourer, and it was accepted by all the parties that that job was a physical job involving, to a great extent, manual labour of a heavy kind. The Applicant accepted that the vast majority of aspects of that job did have a manual content.

[12]Throughout that period, from December 1997 to the middle of 2000, the contact between the Applicant and the Respondent was on the footing that the Applicant was not fit to return to work to do the job he was able to do, and was on the basis of what consideration could be given to the future. Mr Haworth sought medical opinion, apparently on a number of occasions, as to the Applicant's position.

[13]In May 2000, matters started to come to a head. The Applicant wrote a further letter of enquiry as to what his position might be. Mr Haworth, as before, sought medical opinion. The medical opinion, when it arrived, was even more pessimistic than the case previously. Whereas in earlier reports the Applicant's problems as been identified as confined to the upper body resulting in a loss of physical strength and ability in the upper body, by June 2000 it was reported that deterioration had spread to lower limbs. It was said that in addition to the difficulties that the Applicant had already suffered in regard to his upper body, he now had serious difficulty in walking and the Applicant acknowledged that that was so. The nature of the illness from which he suffers is such that there is no upward progression, it is only a plateau at the very best and downward thereafter.

[14]Upon receipt of that report a meeting was arranged between Mr Haworth and the Applicant which was held on 17 th July. The Tribunal in paragraph 6 of their decision said as follows "We are satisfied that Mr Haworth was just as anxious if something could be done to get the Applicant back to work. Every issue was looked at, every suggestion that the Applicant put forward as to the kind of work he might be able to do was considered, but Mr Haworth knew from his long experience in the industry in which the Respondents are engaged, and from his knowledge of the kind of work that was required in that industry, that despite the Applicant's optimism as to what he might be able to achieve he (Mr Haworth) knew that this was simply not on. For example, there was a suggestion by the Applicant that he could operate a machine known as a "Robot" but Mr Haworth knew that getting on and off the Robot was more than the Applicant would be able to cope with, let alone the physical tasks that were involved in operation. The Applicant mentioned the possibility of forklift truck driving, for which he holds a licence but Mr Haworth was mindful of his responsibility under the Health and Safety legislation and the fact that somebody operating a piece of machinery such as a forklift truck has to be in control and command of that vehicle. In view of the Applicant's limitations, Mr Haworth knew that this was simply not on."

[15]The Tribunal concluded that Mr Haworth, far from being dismissive of Mr Pearson's suggestion, was listening to what he had to say, taking on board the suggestions that were being put forward and recognising the fact that, although the Applicant may have genuinely thought he was capable of doing what he wanted to do, Mr Haworth knew this was simply not so.

[16]The Tribunal considered a criticism that Mr Haworth had not taken independent advice and had not sought specialist views. The Tribunal concluded, as a fact, that Mr Haworth was the General Manager. He knew the nature of the work that was done and knew the physical requirements of the job and they rejected that criticism.

[17]The Tribunal then records in paragraph 7 and 8 that following the interview on 17 th July Mr Haworth wrote to the Applicant a letter of 18 th July which recorded what had been discussed the day before and recorded why Mr Haworth had been unable to agree with the Applicant that he could do the kind of work he was suggesting. Even then Mr Haworth did not close the door. He said in the letter that if the Applicant could suggest anything that he could do in the operation which would create a job for him then he was prepared to consider it and he gave the Applicant seven days to reply. There being no reply to that letter, Mr Haworth took the view that he could do no more and ended the Applicant's employment by a letter dated 24 th July 2000.

[18]Having recited the facts as they found them, the Tribunal went on to consider the legal issues. The first issue they considered was the question whether Mr Pearson's application got off the ground at all on the basis that, by July 2000, there was no longer any contract of employment between him and the Respondent because the contract of employment, that had originally existed, had ceased by reason of the doctrine of frustration. They concluded that the doctrine of frustration of contract does operate nothwithstanding the passage into effect of the Disability Discrimination Act 1995 and concluded that the contract was frustrated in November 1999.

[19]The Appellant raises as the first issue on this appeal whether the Tribunal erred in law in considering that the doctrine of frustration continued unaffected by the impact of the Disability Discrimination Act 1995. For our part we certainly agree that there is an eminently arguable point raised on that topic and had this Tribunal made its decision on that limited basis then plainly this would have been a case to go through to a full hearing. However, the Tribunal, perhaps prudently in the light of the new ground that they had trod, went on to consider the case on the footing that they were wrong about the operation of the doctrine of frustration and considered the matter on its merits independently of the operation of that doctrine.

[20]In paragraph 16, they record the fact that the Disability Discrimination Act 1995 claim was on two bases namely discrimination under 5(1) and discrimination under 5(2). Sensibly, they address the question of the 5(2) discrimination first and they start to deal with that part of the matter as follows "Section 6 places a duty upon the employer subject, to the provisions of the Section, to make reasonable adjustments in relation to employees who are disabled persons. There is no doubt that the Applicant is and was, for all relevant purposes at the times that we are here to consider, a disabled person because the time that we are considering is July 2000."

[21]They then concluded that, in the light of the facts that they had found, the Respondent's duty was to make adjustments in relation to the job of Greenhouse Labourer, which was his previous job at which he was unable to perform. They then say that Section 6(3) sets out a number of possible steps which the Respondent may have to take and they concluded that, at the end of the day, the Applicant's case was that he could not do the job he was engaged to do. There were no adjustments to that job which he could identify but what the Respondent ought to have done was to have taken one or two of the aspects of the job that he could do and put them together in some way which created a job for him, part time or full time. They concluded that subsection (3) of Section 6 did not place that duty on the Respondent. They considered that the duty was to modify the job he already had and if a job could not be modified to achieve that end then, although the Respondent was required to consider Section 6(3) steps, and they were satisfied Mr Haworth did, if the steps are of no avail it cannot be a breach of duty to fail to take them.

[22]They then went on to consider that one of the steps involved transferring Mr Pearsons to fill an existing vacancy. As far as that is concerned the Tribunal says as follows "The Applicant has not been able to identify a job which he could have done as it stood. What is said on his behalf is that the Respondent should have looked at the jobs, and there were few enough, but there were jobs, which the Applicant could not have done and modified those jobs taking into account that the remaining steps in subsection (3) to make the job available to the Applicant. (The Tribunal do not believe that is what subsection (3) means). Other than transferring to another job, all the provisions set out relate to the existing job. It is, we think, established and there is little dispute, that there is no obligation on the Respondent to create a new job which only the Applicant could do.

[23]The approach of the Tribunal in that paragraph is criticised in a number of respects. First of all, it is said that they have not gone through the Section, subsection by subsection, as they are required to do. In other words, they have not, first of all, considered whether subsection (1) applies and then gone on to look at subsection (3). It seems to us that that is not a point which is reasonably arguable, having regard to the way in which the Tribunal dealt with the case in paragraph 16. It seems clear to us that they have considered subsection (1) and having made their findings as far as that is concerned they have then gone on to consider subsection (3).

[24]Of their consideration of subsection (3) however, two separate criticisms are made and the third criticism, concerning the Code of Practice, is also made linking in to each of the two main criticisms. It is first said that the Tribunal have erred in law in saying that subsection (3) does not involve an obligation that, if there were a job that the Applicant was not able to do but was vacant, the employer should have considered making adjustments in the arrangements for the performance of that job taking into account the other steps which are listed in subsection (3). Particular reference, in this connection, is made to the paragraphs in the Code of Practice to which we have already referred and in particular to the introduction to 4.20 which, in terms, mentions a combination of steps and the subparagraph concerning transferring the person to fill an existing vacancy which explicitly says that such a case may involve reasonable retraining.

[25]We can see that the way in which the Tribunal has expressed itself in this particular part of paragraph 16 may, on one reading, indicate that they have failed to have regard to the relevant provisions of the Code of Practice and that they have misstated the extent of the obligation of an employer. Were other matters not to arise, to which we will refer in a moment, we think that is a point which could properly be brought forward for a full hearing.

[26]As far as the other point is concerned, it is the contention of Miss Rodaway that there is an obligation on the employer, not only to consider whether there is a vacancy to which the employee can be transferred and to consider whether that job could be done by taking the other steps set out in Section 6(3), but that there is a positive obligation on the employer to consider whether an entirely new job can be created taking elements which the Applicant could do from various jobs and putting them together.

[27]Even bearing in mind the provisions of the Code of Practice, we are not persuaded that it is reasonably arguable that the Tribunal in this case erred in law in rejecting that contention. However, even were it to be reasonably arguable, this Tribunal considering this case had made a series of findings of fact and in paragraph 16 of their decision they go on to say as follows "Although we do believe that Mr Haworth was willing to contemplate that step [that is to say the creation of a new job which only the Applicant could do] if the Applicant had been able to put forward the mechanism whereby that job could be created because that is the suggestion at least in the letter of 18 th July. . . It cannot be said therefore that the Respondent is in breach of Section 6 by failing to do something which [the Tribunal concluded] the employer was not obliged to do but nonetheless the Respondent was willing to do if the Applicant could provide the wherewithal." In those circumstances they rejected the application under the Disability Discrimination Act 1995, Section 5(2), and as a consequence the other two claims as well.

[28]Notwithstanding our conclusion in paragraph 25 above that it is arguable that the Tribunal, in its Reasons, misstated the law and, in particular, misstated the extent of the obligations of the employer, there is, in our judgment, no reasonable prospect that, in fact, this appeal would succeed at a full hearing in the sense that it would result in the decision being overturned and the matter being remitted for a fresh hearing.

[29]The findings of fact of the Tribunal were such that the employer in this case did everything that it was being suggested by Miss Rodaway they were obliged to do. Not only did they consider the question of whether they could make available alternative existing jobs for Mr Pearson to do, but they specifically said to him that if he could suggest a job which they might create for him, then they would consider that. In the absence of Mr Pearson being able to come forward with any suggestion, having been given the opportunity, the Respondent concluded that they could do no more and terminated the employment of Mr Pearson who had not, in fact, attended work for getting on three years prior to the termination of his employment.

[30]In the light of that, any argument as to the question of the Tribunal's erroneous limitation of the obligations on an employer would be merely academic because the facts found were that the employer had done all that the Appellant wanted him to do. The Tribunal having concluded that the Respondent had acted reasonably, and indeed beyond its obligations, in that respect, in our judgment there would be no point in this matter going forward to a full hearing as the arguments would be, as we say, academic. In the light of that we are obliged to say that this appeal has no reasonable prospect of succeeding and therefore we dismiss it at this stage without requiring a full hearing on the matter.