MR P S ANDREWS v METAL CASTINGS LIMITED [2002] UKEAT 1336_00_0702

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1336_00_0702

Case No Appeal No EAT/1336/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR P S ANDREWSAPPELLANT

METAL CASTINGS LIMITEDRESPONDENT

Before

Mr Justice Burton

Lord Davies of Coity

Date 7 February 2002

[1]APPEARANCES For the Appellant MS J OMANBALA (of Counsel) Instructed By: Messrs Hill Dickinson Gorna & Company Solicitors 50 Fountain Street Manchester M2 2AS For the Respondent MR T LINDEN (of Counsel) Instructed By: EEF Broadway House Tothill Street London S1H 9NQ MR JUSTICE BURTON This is an appeal by Mr Andrews against the dismissal by the Employment Tribunal at Birmingham in a reserved decision given on 21 September 2000 in respect of a hearing which was before the court on 2 March, 5, 6, 16 June and 24 July 2000 of his claim against the Respondents Metal Casting Limited under the Disability Discrimination Act . He succeeded in his claim for unfair dismissal on the basis of a finding by the Tribunal of lack of sufficient consultation with him prior to his redundancy.

[2]The Respondents, based in Worcester, produce high-pressure die-castings and they also have a second site at Wolverhampton. At the end of January 1999 there were 389 employees employed at the Worcester site and something under 200 employees at the Wolverhampton site. The Appellant is a time-served fitter, and he was for a time employed as a fitter by the Respondents; unfortunately in 1969 he suffered a cerebral haemorrhage which left him with no use in his left arm, hand and leg and he had other disabilities which substantially effected his normal day-to-day activities. After a lengthy period of sickness absence following the cerebral haemorrhage, the Appellant returned to work for the Respondents, and he was employed for a time as a Tool Room Inspector.

[3]In about 1992 a Mr Willis who had been carrying out the post as Tool Room clerk left, and the Appellant was offered and accepted his post. This involved filing file cards, collecting timecards and maintaining records; and then when computerisation was introduced it involved him in inputting information onto a computer system. The information mainly related to the tool room but also included data as to the hardening shop and the welding shop. Approximately 80% of his time was spent on maintaining records with regard to dies. The work of the tool room, where the dies were maintained, began to decline significantly in the period from 1996 to 1999 and there followed a rationalisation programme, particularly dedicated towards the reviewing of the customer die base.

[4]A strategic policy decision was taken to sub-contract out work for the less used dies and to concentrate upon work with larger customers and longer production runs. This resulted in a reduction of the number of dies retained and maintained by the Respondents from in excess of 300 down to just over 100. The reduction in the number of dies was reflected in the number of those employed in the tool room, which fell over the period from 1996 to 1999 from 37 to 20. In late 1998 the Respondents came under further financial and commercial pressure. It was decided that in the order of 45 employees would be made redundant at the Worcester site. The Respondents' conclusion after consideration of the position was that, in view of the reduction in the number of dies and in the consequent number of recorded transactions, the Appellant's post of Tool Room Clerk would be, as it was put, deleted, and consequently his job became redundant.

[5]Having decided that his post within the tool room was to go, the evidence was that a Mr Connolly of the Respondents looked around the Respondents for suitable alternative jobs for the Appellant at the Respondents' Worcester plant. It appeared that there was only one area which was appropriate for the Appellant's skills and ability and this was the general stores. Mr Connolly checked the position with a Mr White. Mr White said the activities and staffing in the general stores were also being reduced as a result of the Respondents' restructuring. Until the restructuring in early 1999, three people were employed on the general stores on a two-shift basis; this was to be reduced to one. The Appellant was not assessed with the employees in the general stores; the duties in the general stores, as the Tribunal found, differed from those undertaken by the Appellant. The Appellant was interviewed on 10 February 1999 and told by Mr Connolly that his position was at risk of redundancy, and, after a further letter, he was told by a visit to his house on 17 February, because he was off ill at the time, that he would be dismissed for redundancy.

[6]The finding of the Tribunal was that at no time prior to his dismissal did Mr Connolly or any other relevant employee of the Respondents discuss with the Appellant his experience and skills; consequently neither of the relevant employees at the Respondents knew or remembered that the Appellant was a time-served fitter. The conclusion, as we have indicated, in relation to his unfair dismissal claim was that in the circumstances confronting the Respondents, if they had acted reasonably they would have consulted with the Appellant, especially a person with such long service, prior to his dismissal and the Tribunal Chairman records at paragraph 51:

"The importance of consultation in the circumstances of redundancy is that it enables the employer to be fully aware of all the circumstances affecting an individual employee when taking the decision whether or not he should be dismissed."

[7]In the circumstances of this case, by acting as they did, the Respondents did not avail themselves of the opportunity of gaining that information. Consequently the Tribunal found for the Appellant on the issue of unfair dismissal. The issue before us has been as to whether they were right in dismissing his additional claim for disability discrimination. That fell into two parts, the first question being whether the Appellant can complain within the straightforward provisions of section 5(1) of the Act and secondly whether there has been a breach of the Respondents' duty under section 6 of the Act to take adjustments. Section 5(1) reads as follows:

"(1) For the purposes of this Part, an employer discriminates against a disabled person if- (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified."

By section 5(2) the provision reads:

"…an employer also discriminates against a disabled person if- (a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and (b) he cannot show at his failure to comply with that duty is justified."

Section 6(1), headed up as the "Duty of employer to make adjustments," reads in material part as follows:

"Where- (a) any arrangements made by or on behalf of an employer, or (b) any physical feature of premises occupied by the 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."

[8]Sub-section 6(2) makes clear that sub-section 6(1)(a) applies only in relation to(a) arrangements for determining to whom employment should be offered, or

(b) any term condition or arrangement upon which employment, promotion, transfer, training or any other benefit is offered or afforded. By sub-section 6(3), examples are given of steps, which an employer may have to take in relation to a disabled person, in order to comply with sub-section 6(1). Those examples include (b) allocating some of the disabled person's duties to another person,

(c) transferring him to fill an existing vacancy, (e) assigning him to a different place of work, (g) giving him or arranging for him to be given training, (l) providing supervision. By sub-section 6(4) of the Act, in determining whether it is reasonable for an employer to have to take a particular step in order to comply with sub-section 6(1), regard shall be had in particular to (a) the extent to which taking the step would prevent the effect in question (b) the extent to which it is practicable for the employer to take the step (c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities.

[9]The Tribunal carefully considered the position of the 'deletion' of the job of Tool Room Clerk. When the matter came before this Tribunal, by way of preliminary hearing on 30 March 2001, permission to continue the appeal was granted by the Appeal Tribunal presided over by the President. A criticism was discussed in the judgment of that Tribunal which the Tribunal considered arguable, and which does not seem to have been part of the skeleton argument put forward before them by the solicitor from Messrs Gorna & Co who had argued the matter below and was then arguing it before them. The Appeal Tribunal wondered whether it might be an interesting point as to whether the fact that the job of Tool Room Clerk, which had been given to the Appellant because he was disabled, was now being 'deleted', could itself amount to a relevant factor, bringing it within section 5. That has in the event not been part of the appeal before us. It remains no doubt an interesting question for consideration if the job in question were one which had been artificially and specially created for someone with a disability, although, even then, there would still be an argument as to whether a dismissal from it, for reasons which did not relate to disability would somehow render such a dismissal one which did relate to the disabled persons disability simply because he had some years before been specially put into that position. But it has been accepted by Miss Omanbala before us today, that the job of tool room clerk was not such a job; it was a job which anyone could have done, disabled or not disabled, it simply happens to have been one which the appellant was fully able, notwithstanding his disability, to perform. In any event, the issue was not pursued before us.

[10]The conclusion of the Tribunal at paragraph 57 begins as follows:

"In considering this aspect of the case, the tribunal has reminded itself that the applicant was the only person undertaking the work of Tool Room clerk. Having reminded itself of the other relevant facts, the tribunal has asked itself whether the applicant would have been treated as he was if he were not disabled."

This appears to us to be a perfectly sensible, shorthand way of putting the statutory test, one entirely consistent, and indeed such was not seriously contested by Miss Omanbala, with the consideration of the case for example in Clark v. Novacold

[1999] IRLR 318

, i.e. did Novacold treat Mr Clark less favourably than they would treat others to whom the reason of disability would not apply? Clark v. Novacold was of course a case in which the applicant was dismissed for incapacity. There was no suggestion of any incapacity in this case, whether as a result of disablement or otherwise; no one suggested that the Appellant was anything other than a successful employee in the position, which for many years he occupied.

[11]The Tribunal asked itself, according to paragraph 57 of the decision, whether in the circumstances where the Applicant was the only person performing the tasks which ceased to exist, the Respondents' explanation for their conduct was an innocent and reasonable explanation of their conduct with regard to the dismissal. Having subjected this question to such consideration, the Tribunal concludes that the explanation was innocent and reasonable; thus insofar as there may have been some suggestion that the reason for the dismissal was because it was a way of getting rid of the Appellant because he was disabled, any such suggestion was wholly rejected by the Tribunal having heard the evidence. The conclusion of the Tribunal was set out in paragraphs 58 and 59, which begins:

"58. The applicant was dismissed because the respondents' requirements for a person to carry out the post of Tool Room clerk had ceased. The applicant's disability was not taken into account in reaching this decision."

That is expanded in paragraph 59 and then at paragraphs 60 and 61 the Tribunal continues:

"60. The Tribunal has asked itself whether, in the particular circumstances, if the person performing the role of Tool Room clerk had not been disabled, the respondents would have dispensed with the post of Tool Room clerk. The Tribunal is satisfied that in those circumstances the post of Tool Room clerk would still have been dispensed with and the post-holder dismissed by reason of redundancy. 61. The Tribunal is satisfied that in respect of his dismissal the applicant was not treated less favourably than the respondents treated, or would treat, others to whom a reason relating to the applicant's disability did not apply."

[12]Some argument was put forward by Miss Omanbala in her skeleton argument by reference to whether it was appropriate, and if so how far, for the Tribunal to have referred to what might in other cases, such as race and sex discrimination, be called comparators, but it is entirely clear to us that the Tribunal's decision was not based upon comparing the position of the Appellant with others, whether in the tool room or indeed anywhere else in the employ of the Respondents; but that any consideration of the position of other employees was only for the purpose of concluding whether this particular Appellant was treated less favourably by reason of his disability, and they were entirely satisfied that disability did not enter into the equation at all in concluding that the post of Tool Room clerk had ceased, rendering him, prima facie, redundant.

[13]On that ground therefore, there is no substance in the Appellant's appeal. But the second ground of appeal, or series of grounds of appeal, put forward on the Appellant's behalf related to the considerations under section 6 and section 5(2) by the Tribunal as to whether the employer had been in breach of its statutory duty under section 6, which would create an unlawful act of discrimination under section 5(2). The starting point is that the Tribunal has found, as we have described in respect of the claim for unfair dismissal, that there had been inadequate consultation of the Appellant, and that, had there been consultation, his position at any rate as an ex Tool Room Fitter would have become apparent, which was not otherwise known. It was also found by the Tribunal that the Respondents did not consider the position of the Appellant with specific reference to the provisions of the Act or the Code of Practice, and consequently, in fact did not address all of the questions that they were obliged to address, specifically by reference to the terms of those provisions.

[14]The position is however clear, and Miss Omanbala did not in the end pursue the contrary submission, in the light of the authorities, and in particular the authorities referred to by Mr Linden, who appeared for the Respondents, in his skeleton argument, culminating in two unreported decisions of His Honour Judge Peter Clark, sitting in this Tribunal, Bradley v. Greater Manchester Fire & Civil Defence Authority , 27 April 2001 and Johnson & Johnson Medical Limited v. Filmer , 5 October 2001, which specifically referred to and followed in terms the decision of Keene J, as he then was, in British Gas Services v. McCaull

[2001] IRLR 60

. Not least because the effect of those decisions was not in terms challenged by Miss Omanbala, we entirely agree with and would wish to follow them. They make it clear, by reference indeed to the clear terms of the Act itself, in particular sub-section 6(4) to which we have referred, that the issue for the Tribunal to decide is by reference to an objective test, namely whether the employers in fact failed to take steps which they ought reasonably to have taken. Whether they cast their minds to the right provisions, or looked at the right Code of Practice, or followed the right procedures, at the end of the day, is only part of the picture.

[15]The question is whether, had they had in mind those provisions, there were any steps which they should reasonably have taken, which they did not take. Plainly in a situation in which they do not follow any of those procedures it is not going to lie easily in their mouths to challenge, on grounds of impracticability, any suggestions made to them before the Tribunal as to steps which they might have taken, and therefore ought reasonably to have taken, because of course the whole question will be hypothetical, what if you had in fact taken steps which you did not take? But of course that issue is perfectly simple for a Tribunal to resolve, as many courts have to do, even in ordinary motor offences, namely what could have happened if the motorist had done something different, and it is one which this Tribunal did in some detail.

[16]They considered the question, on the basis of submissions and evidence put before them by both sides, as to what different course could have been taken had there been consultation, i.e. whether any steps which this employer ought reasonably to have taken and which he did not take would have had any effect on the result. There were it seems, three steps which it was suggested the employer should have taken once he had, as he should have done, consulted and discovered, for example, such information as he might have discovered had he done such consultation, i.e. the past history of employment of the Appellant, which would have caused him to know of his experience as a Tool Room Fitter, among other things.

[17]The three options have boiled down largely to one before us, although two of them were argued before us. One which was not pursued before us was a suggestion, which is dealt with thoroughly in paragraph 68 of the Tribunal's decision, namely the possibility of moving the Appellant to replace a recently appointed purchasing clerk; that is rejected as a reasonable possibility by the Tribunal in that paragraph, and no challenge to that conclusion has been made by Miss Omanbala. She has submitted that there were two courses, which, in order to fulfil their statutory duty, the employers should have taken. The first was to ensure continued employment for the Appellant in the General Stores, and the other was to transfer the Appellant to the Quality Department. It is understood that the latter Department, if not also the former (paragraph 63 of the Decision), may have been at a different location. The evidence that was put before the Tribunal as to the position in those two different departments must begin with a consideration first of the way in which the Respondents carried out their redundancy scheme. They carried it out, as summarised in the findings of the Tribunal, in two relevant respects:(1) it appears that the redundancy was carried out by considering each department separately and thus the employees for each different department were considered in their own pool

(2) within each department the consideration was based not on length of employment but upon the possession of relevant skills and experience. This is not a case which any invitation was made to the Tribunal, never mind to us, to consider the appropriateness of the selected method of redundancy. There was no case put forward, for example, by way of unfair dismissal by reason of redundancy, but even if there had been, that is not an issue, either before the Tribunal and certainly not before us, relevant to the Disability Discrimination Act. The fact remains that, insofar as the decision was made to look at redundancy in different pools and to deal with the matter by way of skills rather than length of employment, that is a fact which the Tribunal found, and there was and is no suggestion that the consideration of the redundancy as a whole on that basis had anything to do with the disability of this Appellant; and indeed I have already recited the finding of innocence on the part of the Respondents by the Tribunal in general terms, which would foreclose any such argument before us in any event.

[18]Against that background, therefore, the Appellant was considered in his own pool and, as we have indicated, there can be no challenge to the Tribunal's finding that his job was 'deleted' and that his prima facie redundancy was not the result of his disability. Consequently the considerations had to be whether it was a breach of statutory duty for the Respondents first of all, not to consider, but had they considered not to effect, a transfer from a pool in which he had been found redundant, into an alternative pool or department. Clearly if there had been a vacancy in either of these two departments, then questions under sub-section 6(3)(c) would have immediately arisen, but unfortunately there was a redundancy position within the company as I have described, on the findings of the Tribunal. Against this background, the Tribunal considered the question first of the General Stores, and in paragraph 63 the Chairman concluded as follows:

"Enquiries were made to ascertain whether there was work available for the applicant in the General Stores. However there was to be a redundancy exercise in connection with those stores in any event. The applicant's activity was not such that he should have been considered in a "pool" with those employed in the General Stores when making selection for redundancy. The applicant undertook a different type of work in a different location. The respondents could not be expected to consider the applicant for redundancy in a pool with those employees working in the General Stores."

[19]The Tribunal considered whether the position in this respect would be different if the Respondents had consulted properly with the Appellant. Having done so, the Tribunal concluded that it would not. This appears to be an implicit reference to what further information would have been obtained about the Appellant had there been such consultation, and that such further information would not have assisted the Appellant in any argument being put forward that he would have been appropriate to work in the General Stores or at any rate, more appropriate by virtue of such qualification. The position in the General Stores is then dealt with in paragraph 67:

"There was no existing vacancy to which the applicant could be transferred. The employees in the General Stores had long service with the respondents, although not as long as the applicant. There was to be redundancy in the General Stores and in any event the respondents were faced with reducing the size of their labour force in circumstances where there were considerable pressures on them. Taking into account all the special circumstances of this case, it would not have been reasonable for the respondents to take steps to dismiss another employee, to move the applicant into the General Stores. Although the applicant had knowledge of the consumables used in the Tool Room, he did not have the detailed current knowledge of the items used by the respondents, as was possessed by those with long experience in the General Stores."

[20]The submission by Miss Omanbala was that this was an erroneous conclusion by the Tribunal, first, because they did not apply the law correctly and secondly because their conclusion was perverse. It appears to us that that submission cannot be sustained, in the light of the careful consideration by the Tribunal. She sought to submit that it would not be necessary in order to substantiate a case, to do anything other than consider that there had been a failure to consult and that this option might have been available. Further, she sought to submit that it would be enough to say that it might have been that some vacancy might have been found which might not have involved removing another employee. She did not, notwithstanding questions from this Tribunal, hang her hat on an assertion that an employee should have been dismissed in order to make way for this Appellant, but if necessary, that too she submits would be an available argument.

[21]Two matters appear to us to be clear. First, the law requires, as we have summarised it, that under sub-section 6(4) of the Act, and indeed in the light of the authorities to which I referred above, the Tribunal is not only entitled, but obliged, to look at what the effects would have been of the taking of different steps by the employer; and the Tribunal here was careful, having found that there had been a failure to consult, to conclude that even if there had been further consultation there would have been no different result. Secondly, consequently pushing Miss Omanbala's submission to its limit as we conclude she would have had to have done, the issue would arise as to whether it would arguably be a breach, and of course as we are an appellate body we have to find that it is perverse of the Tribunal not to have found that it was a breach, of the Respondents' obligations under the Act, not to move the Appellant into the General Stores, even if at the expense of a more experienced employee.

[22]The argument is more that the Appellant had been a long time in employment, and some training and/or probationary period and/or supervision would soon have brought him up to the more experienced state of those already in the tool room. Mr Linden submits that although, in some cases, section 6 might require an employer to take a step such as creating a vacancy by dismissing a different employee, that was not appropriate in this case, or certainly that the Tribunal acted reasonably in concluding that that would not have been reasonably required of the employer in this case.

[23]There is a further factor and that is that, in some cases, it might be said that to pursue their obligation under section 6 employers might have to give credit to a disabled person, so as to give him a job carried on by an able bodied person, where the reason for the lesser skill on the part of the disabled person is his disability. That is not the case in these circumstances. As the Tribunal concluded, and indeed, as is quite clear from the facts to which they refer, the reason why the existing employees in the General Stores, or at any rate those who survived the redundancy which was otherwise being carried out in those stores, were more experienced and more skilful than the Appellant was not due to his disability, but due to their detailed knowledge of the work gained by long years of their employment in that department, being different work, albeit having some inevitable similarities to that which he had done in the tool room.

[24]In those circumstances, at the very least, in our judgment, there is no ground for challenging the decision of the Tribunal. They cannot to be said to have erred in law or asked themselves the wrong questions, and there was plainly evidence before them upon which they could reach the conclusion they did that the employer did not act unreasonably in not taking steps to transfer the Appellant to the General Stores at the expense of another employee, as they have found it would have been.

[25]That leaves the alternative option, which was canvassed before the Tribunal and is set out in paragraphs 70 and 71 of their decision, in respect of which Miss Omanbala candidly accepted her case would be less strong than in respect of the General Stores, and this was the Quality Department. In January 1999 the Quality Department, according to paragraph 70 of the decision, consisted of 12 employees. In the period from January to June 1999, the role of the Quality Department was of particular importance to the Respondents, for reasons that are set out in the decision. The employees in the Quality Department were all established employees; it would not have been a practicable possibility, as the Tribunal found, to carry an employee undergoing training in the Quality Department at the time.

[26]Nevertheless, the Tribunal considered whether the Respondents should have made arrangements to displace an existing employee in the Quality Department by the Appellant, and it concluded that, for the Appellant to be transferred to the Quality Department, another established employee would have had to be dismissed, as the conclusion of the Tribunal was that:

"In this case there was no existing vacancy, there was an urgency for the work to be undertaken and the applicant could not have undertaken the work without training and there was no reasonable certainty that, even with the training, he would have been able to do so. In all these circumstances, balancing and weighing all of the factors, the Tribunal is satisfied that there were no steps as were reasonable in all the circumstances for the respondents to take in order to avoid the dismissal of the applicant by transferring him to the Quality Department."

[27]Having carefully considered the various factual options, the Tribunal then summarised the position in paragraph 72 and conclude as follows:

"Although the respondents did not consider the position of the applicant with specific reference to the provisions of the DDA and the Code of Practice, they did look to see whether there were other jobs available for him. Unfortunately there were none. There was no existing vacancy to which the applicant could be transferred. In the circumstances facing the respondents at the time it was reasonable for the respondents not to create a vacancy for him to be transferred to. The situation would not have been altered by allocating some of the applicant's actual duties, or those in alternative positions, to another person, or persons, nor by giving training, nor acquiring or modifying equipment, or providing supervision."

Those are of course references to the various sub-sections of paragraph 6(3) to which I have already referred. That is a conclusion in which this Tribunal is unable to interfere and we conclude that there is no ground to support the Appellant's appeal, whether as put forward or at all, and consequently the appeal is dismissed.