MR F J FORBES v DEPARTMENT OF SOCIAL SECURITY [2001] UKEAT 578_01_1710

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 578_01_1710Case No Appeal No. EAT/578/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR F J FORBESAPPELLANTDEPARTMENT OF SOCIAL SECURITYRESPONDENT
Before
Her Honour Judge A Wakefield Mr J C Shrigley Mr P M SmithDate 17 October 2001
[1]APPEARANCES For the Appellant The Appellant in person JUDGE A WAKEFIELD This is an ex parte preliminary hearing of an appeal by Mr Felix Forbes against a Decision of an Employment Tribunal sitting at Liverpool by which his complaint of discrimination by reason of disability was dismissed. The Decision was promulgated on 11 April 2001, following a hearing over two days the previous March.[2]The background to the claim was the refusal of the Respondent to include the Appellant in a training course which could have led him to qualify as a Visiting Officer. He was then, and remains, a member of the Respondent's Consumer Services Team, working in the Disability Benefits Centre in Bootle.[3]The Respondent has throughout accepted that the Appellant, who suffers from epilepsy, is disabled and that the refusal to permit him to go on the course was an act of less favourable treatment related to that disability. The Respondent also accepted that a Section 6 duty, under the Disability Discrimination Act 1995, existed.[4]The issue before the Employment Tribunal therefore was whether the Respondent had complied with that duty and, if not, whether the failure could be justified. The Tribunal found crucially on these points as follows: firstly in paragraph 7.3 of the Decision, they say:
"In these circumstances the respondent has proved that there were no steps that the respondent could reasonably have taken to enable the applicant, without a driving licence to carry out the functions of a visiting officer. It was therefore entitled to decline him the opportunity of taking the course." then as regards justification they said this, in paragraph 9: "
We are satisfied that the respondent was justified in refusing to permit the applicant to undergo the training course because of justified concerns about his health and safety and the health and safety of customers. We reject the applicant's contention that he should have been interviewed by his manager or indeed Dr McLean the Occupational Health Consultant with a view to establishing precisely what happened when he had a fit, how often they occurred and what consequences flowed. Dr McLean, who is adequately and suitably qualified, was entitled on the information before him to conclude that a person with the applicant's disability would be a potential health and safety risk to himself and customers if he were to be a visiting officer. In these circumstances the respondent was justified in refusing him the opportunity of doing the course."[5]The Notice of Appeal, as originally presented, raises issue of non-disclosure of medical evidence, breaches of natural justice as regards the medical report received in evidence and a failure of management in decision-making by reason of not being informed of relevant material.[6]Some of these issues were raised in a request to the Employment Tribunal for a review of the original Decision, which request was, in our view on good grounds, refused and that refusal has not been the subject of an appeal.[7]Before us today the Appellant, who represents himself, has raised a number of criticisms as to the Employment Tribunal's acceptance of, and reliance upon, evidence which he criticises as being based on inadequate information (for example the report of Dr McLean and the evidence of Mrs Dunne) or insufficiently backed up by facts, such as the extra cost to the Respondent of providing the Appellant with a driver.[8]All these points were made at the Employment Tribunal and were either expressly, as for example in relation to Dr McLean in paragraph 9 which I have just read, or by implication from other findings, rejected.[9]The Appellant has also, since the Employment Tribunal hearing, come into possession of further documents which he believes could have advanced his cause. Having considered these, we do not agree, but in any event it is too late to introduce new evidence which was in existence, although not discovered by the Appellant, at the time of the hearing.[10]The final point raised by the Appellant is that by reason of alleged non-disclosure to him by the Respondent of relevant documents, he has been denied a fair hearing, as of course is his right under the Human Rights Act . He draws to our attention the case of Atlan -v- United Kingdom , heard in the European Court of Human Rights, with a judgment given on 19 June this year. This was a case of failure of the criminal prosecuting authorities to disclose to the defence, or to seek a ruling from the judge as to, documents and information which were manifestly important to a core issue of the defence case. There is, in our view, no parallel in the present case. There was no deliberate withholding by the Respondent of relevant information from the Appellant or from the Employment Tribunal, nor was there any failure to comply with any request for disclosure.[11]The Decision of the Employment Tribunal, in our view, is a full and careful analysis of the facts as presented and of the relevant law. The findings are fully justified as the case was presented. The appeal cannot succeed and is dismissed.