MR D N SUTCLIFFE v STOCKPORT METROPOLITAN BOROUGH COUNCIL [2003] UKEAT 0241_03_2306

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0241_03_2306Case No Appeal No. EAT/0241/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D N SUTCLIFFEAPPELLANTSTOCKPORT METROPOLITAN BOROUGH COUNCILRESPONDENT
Before
Mr Justice BurtonDate 23 June 2003
[1]APPEARANCES For the Appellant MR D N SUTCLIFFE THE APPELLANT IN PERSON MR J MALLENDER OBSERVER MR JUSTICE BURTON (PRESIDENT) : This has been the preliminary hearing of the appeal by Mr Sutcliffe, against the unanimous decision of the Employment Tribunal at Manchester to dismiss his claims against the Respondent, Stockport Metropolitan Borough Council. He had two outstanding claims against the Respondent Council, the first of which was of unfair dismissal and the second of disability discrimination. Although he appealed in respect of both findings his main argument today before us has revolved around his case that the Tribunal erred in dismissing his claim of disability discrimination.[2]The Applicant has plainly had a real problem with his back for some time. A Schedule of Medical records was produced by the Respondent Council in respect of two periods, 1990 to 1996 and February 1999 to September 2000. Those records show that he did exhibit back problems, as a result of which he was off work for five days in July 1994. But with regard to the material period, shown by the sickness records produced, it showed that he was off work after February 1999 for only four days in 1999 in November, in respect of a prolapsed disc, and then in 2000, he had no problem and no time off work in respect of his back until 12 June 2000. At that stage he was off work for a substantial period of time, effectively between 12 June and 30 September 2000.[3]In his Witness Statement which he put in at the Employment Tribunal, he said, as follows:
"Such problems first started to affect my ability to attend work in July 1994, when I was forced to take 5 days sick leave due to the severe amount of pain that I was experiencing in my lower back. However, in late 1997 my condition significantly worsened and from that time onwards I began experiencing intermittent bouts of severe back pain caused by the displacement in the vertebrae located in the lower part of my spine. This resulted in 2-3 such attacks during 1998; three attacks during 1999 and three attacks in 2000."
[4]The Applicant tells us that that part of his Witness Statement was not challenged in cross-examination to the best of his recollection. He was, it seems, in the witness box for the best part of a day, out of a hearing which took four days, in November and December 2002. It can be seen that his account of having three attacks during 1999 is not consistent with the medical report produced by the employer, with regard to the period between February 1999 and the end of the year unless, that is, at least some of those attacks took place in the January for which records were not produced. We, of course, have the incident in November 1999 to which we have referred. So absent something, as we have indicated, in January, the records showed only one four-day incident in 1999, as opposed to the three of which he spoke. But the records were not produced, or at any rate were not summarised, in respect of the period during 1998, when according to his statement, he had had two to three such attacks.[5]The Tribunal recorded the following, in paragraph 15 of its Decision:
"15 It has been conceded by the respondent that the applicant satisfies the definition of disability in Section 1 DDA [Disability Discrimination Act]. We do not have evidence which persuades us as to the time of the onset of that disability. There is no mention on the record which we have seen of the applicant raising an issue concerning his back (which is the disability in question) until 15 th November 1999 when he took four consecutive days off with what he described as 'a prolapsed disc'."
[6]Although it is right to say that, in a number of respects to which we will refer, the Tribunal expressed a preference for the evidence of the Respondent over the evidence of the Applicant and, indeed, in certain respects, positively disbelieved the Applicant, it does not descend to resolve any issue of fact between the Appellant and Respondent, in regard to whether he declared himself ill in relation to his back or, indeed, took any time off, in 1998. For the purposes of this preliminary hearing, we are willing to accept from him his assertion that he was, indeed, as per his statement, ill in 1998 with his back, such that to that extent the Tribunal may have misunderstood the position, by virtue of the inadequacy on that basis of disclosure by the employer in regard to 1998. However, what was quite clear was that the Tribunal was under no misapprehension as to the position from 15 November 1999 onwards. In paragraph 15 the Tribunal continues, after referring to that occasion on 15 November 1999, which is recorded in their records, and does accord with his evidence, which we have recited, when he took four consecutive days off with a prolapsed disc, as follows:
"That was followed by the sickness declaration form which he completed on 13 th December 1999 ... in which he described himself as having a 'prolapsed disc – lower back' and we accept that it was brought to the attention of BO [that is, Mr Ollerensaw]. Thereafter, the applicant had only two days off, on 24/25 January 2000 with what he described as 'bad back'."
There has been no challenge before us today to that finding by the Tribunal. "16 The applicant otherwise worked continuously from 19 th November 1999 until 12 th June 2000, when he commenced a long period of just over three months' absence by reason of his back problem." The Tribunal went on, as follows:
"We are not satisfied that the applicant maintained that he had a disability or that he had any form of incapacity which might be disabling, despite his September complaint about his accommodation, until June 2000 when he was off on this prolonged period of sickness absence."
The Tribunal then continued, as follows:
"17 If he were disabled throughout that period, then we have examined, pursuant to Section 5(2) and Section 6, the obligation on the respondent. If page 151 [that is, the reference to the sickness declaration form on 13 December 1999] amounts to a notification to the employer that the employee is suffering from a condition which may render him disabled within the meaning of the Act, then undeniably a duty arises under Section 6."
[7]On analysis, therefore, even if there were a misunderstanding in relation to the position in 1998, the Tribunal considered, on any basis in respect of the period from June 2000, and, on the alternative basis indicated, in respect of the period from December 1999, whether the Respondent Council was in breach of the duty which is laid upon them under Section 6 of the Disability Discrimination Act. That was the issue which was plainly before it.[8]By Section 6 of the Act:
"(1) 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."
If there are breaches of duty, then in certain circumstances that breach of duty is capable of being justified.[9]The Tribunal, against the finding that either from December 1999 or June 2000 a duty arose, was satisfied, after full analysis of the facts, that there was no breach by the Respondent. It is that conclusion which is now challenged on appeal by the Applicant. His written submissions, which were thorough and which were responded to by brief concise submissions in opposition put in by the Respondent, although they have no entitlement to attend and have not attended on the ex parte application today, have been supplemented by oral submissions before us today.[10]In his oral submissions, apart from pointing out the absence of medical records in relation to 1998, he has concentrated towards underlining and emphasising the obligation which the Respondent Council has to comply with Health and Safety legislation and Regulations. As was pointed out to him on a number of occasions during the argument, that is not, at the end of the day, central to consideration of the issues, either before us as an appellate tribunal, or even before the Tribunal below, because the issue is not whether they are, in general terms, under some statutory duty to comply with Health and Safety, but whether they were in breach of the duty which they, on any basis, owed to him as a disabled person.[11]The problem which faces the Applicant in this case, as we have pointed out to him, is that which faces all applicants for an appeal and all appellants, in the course of the hearing of an appeal, namely establishing that the Employment Tribunal erred in law. We are only an Appeal Tribunal dealing with points of law, and at a preliminary hearing an Appellant must establish that he or she has a reasonable prospect of success in establishing such error in law.[12]At the end of the day, Mr Sutcliffe was unable to identify any particular error of law and accepted, in the course of argument, that the only way in which he could put his case was on the basis that the Tribunal's decision was perverse. That, of course, if established, would be an error of law, but we have to be satisfied that there is a reasonable prospect of success for such an argument. In a number of authorities laid down by the Court of Appeal in recent years, it has been emphasised that the Employment Appeal Tribunal is not here to re-hear cases, not here to second-guess cases, not here, particularly on an ex parte application, to assess oral evidence. All that must be left to the Tribunal below.[13]We have a very limited jurisdiction indeed to interfere with the primary role of the Tribunal hearing the evidence live, and assessing the witnesses, and to substitute our own view. Effectively, Mr Sutcliffe says, that no reasonable Tribunal could have done other than make a finding that the Respondent Council was in breach of duty. Even that, nowadays, is not enough, as is clear from the recent decision of Crofton v Yeboah [2002] IRLR 634 .[14]The findings of fact by the Tribunal are relatively lengthy. They found that, in respect of the relevant period, there was no breach by the Respondent Council. In doing so, there were occasions, as we have indicated, when they rejected the evidence given by the Applicant; for example, in subparagraph 3(vi) and (vii), they, in terms, accepted the evidence of Mr Ollerensaw and rejected the contrary evidence by the Applicant.[15]The period from 12 June 2000 is concentrated upon, in subparagraph 3(xiii), and a report from Mediscreen, which was before the Council, in which advice was given that an ergonomic assessment of Mr Sutcliffe's work station and work environment should take place. Mr Sutcliffe had the benefit of a Solicitor at the Tribunal and had previously had the benefit of advice from a union, and he put a straightforward case at the Tribunal:
"Here I was, with a bad back on any basis, from June 2000, if not earlier, working in a room that was too small for me, and, notwithstanding a report from Mediscreen on 11 June 2000 that there ought to be an ergonomic assessment, none was ever carried out"
. That is clearly a good starting point for any applicant before the Tribunal in this kind of case. He failed. He failed because the Tribunal concluded that in all the circumstances, which the Tribunal analysed at length, the Respondent Council was not in breach and, insofar as it did not hold an ergonomic assessment that did not amount to the failure to make adjustments within Section 6 of the Act.[16]Paragraph 3(xvi) records that, "It was felt to be pointless to undertake an ergonomic assessment of accommodation which all parties genuinely believed the applicant was on the point of vacating", in relation to a meeting of 2 October 2000, at which the question of an ergonomic assessment was discussed at length. The Tribunal concluded that it was no fault of the Applicant or of the Respondent that the matter was not progressed, and the EAC (Energy Advice Centre) office was not relocated. This was not a matter of further complaint from the Applicant or his representative.[17]There was a request by the Applicant in September for the opportunity to be allowed to work from home, and the Tribunal deal with that, in the balance of the subparagraphs and, again, absolve the Respondent Council from any breach of duty.[18]The conclusions that the Tribunal reached, after correctly setting out the law, on the basis of the lengthy findings of fact, are summarised, in paragraph 21, of the Decision:
"21 We have covered those [that is, the issues] in some detail ... and do not need to add our findings in that respect. We conclude that the respondent took all reasonable steps to meet its obligations under Section 6 in respect of those three matters. Some delay was undoubtedly caused as a result of the applicant's changes of representation and by the difficulties, in the later half of December 2000 and in January 2001, in GM and DC being able to find a common date to meet with a view to resolving the working-at-home issue. The failure to provide a suitable chair was a failure on the applicant's part and not that of the respondent. Similarly, the failure to undertake an ergonomic assessment was, in the very fluid situation which arose and pertained at the time, with regard to settled accommodation, an understandable failure. In that respect, the applicant, we are entirely satisfied, was kept fully informed, was involved in discussions and was aware that as soon as settled accommodation could be found for him, the ergonomic assessment would take place. This entire exercise was overtaken by the events of 1 st February 2001 and the applicant volunteering for early retirement."
[19]Notwithstanding that we have considered the Decision with care, we are not persuaded that there is any error of law capable of being pursued on appeal in relation to this finding by the Tribunal.[20]The subsidiary argument which, as we have said, did not feature so heavily in the Appellant's argument, or argument before us today, as it did in his written submissions, related to his case that he was unfairly dismissed. The circumstances here were that he, in fact, took voluntarily early retirement subsequent to having originally requested it, he sought to withdraw the request, but the Respondent refused to allow him to withdraw his retirement, and he complains of that as effectively an unfair dismissal. In the event, the Tribunal concluded that the Applicant was dismissed, but that the reason for dismissal was his redundancy and that it was, in all the circumstances of the case, a fair dismissal. The Tribunal again, as we have indicated, resolved certain matters, where there were issues of fact, against the Applicant, and in favour of the Respondent. At paragraph 3(xxxxiv) the Tribunal, for example, said as follows:
"The applicant has said in his evidence that he had 'no alternative' but to apply for voluntary redundancy/early retirement. That is simply not true. The applicant had the option of continuing in EAC; BO [Mr Ollerensaw] had reassured him that its activities were politically topical. The applicant had the option to express an interest in a surveyor's job – he was at pains to assure us that he had all the necessary skills and would have been perfectly capable of doing that work. We are not persuaded that his state of mind or any other reason interfered with his ability to exercise independent and proper judgment over whether or not to express an interest in the surveyor's job and whether or not to express an interest in voluntary redundancy/early retirement. He could have done both and he chose to do one and to ignore the other."
[21]The fairness of the dismissal, which the Tribunal in the event found, was expressed in considerable length, in the following passage:
"9 We have examined the reason for the dismissal and conclude that it was redundancy ... That leads us to Section 98(4) and we conclude, in that regard, that the applicant was at all times a wiling participant in the scheme. He was at no time subjected to duress, coercion or threat. At no time was the position misrepresented to him. At all times, it was made plain that it had to be of his own free choice and, whatever appraisal he made of the prospects for the future of EAC not even the refusal to sign the EST contract amounted to a clear signal to him that his own position was in immediate jeopardy. As for consultation, it is, frankly, difficult to see what other consultation might have been appropriate beyond what the respondent entered into, through the medium of three managers, with the applicant and at great length. The applicant was twice given an extension of time to consider his position and we are satisfied that any question that he asked was answered honestly."
They then deal in paragraphs 10 and 11, with an issue which might have arisen, but which the Tribunal were satisfied did not apply, and concluded that there was a fair dismissal, in paragraph 14.[22]The only ground which has been urged orally before us today, although there was some suggestion, in writing, that there was a failure by the Tribunal to insist upon a medical opinion of its own, which is a misunderstanding of the role of the Employment Tribunal, relates to a case that the Respondent employer gave a false picture of the viability of the Energy Advice Centre, the EAC, in which the Appellant had been employed latterly as an Environmental Health/Urban Renewal Officer and Manager. He submits that there was a misleading picture given by the Respondent and that he is in a position to show, through a document which he has put before us today, that that document shows that in respect of the Stockport Energy Advice Centre, there was an estimated out-turn for 2000/2001 which can be summarised as follows: expenditure to date (12.12.2000), showing an excess over income of £2,008, and estimated out-turn for the period to 31.03.2001, rolled over cumulatively, showed an estimated excess of expenditure over income of £11,639.[23]That is a document which he has annexed to his written submissions. This Tribunal, of course, is in no position to see evidence that was not before the Employment Tribunal, unless permission is given for it to be adduced on well established grounds, namely that the document in question is genuinely fresh evidence, evidence which could not, for reasons which are fully explained and justified, have been produced before the Tribunal below and, in order for such a document to be justifiably adduced as fresh evidence, certain procedural steps have to be taken and permission of this Tribunal obtained.[24]We have looked at the document to see what it says, but we have also sought to explore whether there would be any prospect of an application to adduce that document as fresh evidence being granted, by this, or any other Appeal Tribunal. The Applicant has very frankly told us that he had it in his papers at home; particularly as he instructed a Solicitor and would himself have been under an obligation of disclosure in any event, that is not only no explanation for not producing a document below, but is a reason why it is wholly unlikely that an application for fresh evidence would ever likely to be successful. But, in any event, even were such application successful, what it shows is what we have described, namely a small short-fall of expenditure over income, in respect of the period in question. That was known to him because he had the document. He it was who, in February 2001, which is more or less contemporaneous with that estimate put before the Environment and Economic Development Committee, what was described by the Tribunal as "a very bullish report". He told us today that this was for the purpose of raising funding but, of course, that does not excuse the writer of such a report from saying that he did not know to be true, or believed not to be true; rather the reverse because, of course, it would make it the more important that the statement was accurate, and it appears to us clear that, in those circumstances, the Applicant at the time, notwithstanding any shortfall in income over expenditure, must have hoped, and believed, that that problem was surmountable, particularly, of course, if the funds, for which he was hoping, were forthcoming.[25]We do not see that there is any relevance in the document that he has produced to begin to build up as a case which, in any event, we understand was not run at the Tribunal below, according to the Respondent's written submissions, that the Centre was not viable. But, in any event, we are wholly unpersuaded that there is any relevance to this issue, in relation to any chance of an appeal by the Applicant, in respect of the finding that his dismissal was fair. As we have indicated, the conclusion in the end by the Tribunal was not that there was a consensual retirement, but that he was dismissed. But the Tribunal took the view, for reasons that we have indicated, and in relation to findings of fact which they set out at length, that the dismissal was procedurally fair, and, so far as substance is concerned, resulted in his entering into a scheme which he had requested to be allowed to enter.[26]We do not believe that there is any ground whatever, in law or otherwise, to challenge the conclusion of this Tribunal that he was unfairly dismissed. In those circumstances we dismiss the appeal.