Appeal No. UKEAT/1276/99

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

AT THE TRIBUNAL
On 30 March 2000

Before

THE HONOURABLE LORD JOHNSTON

MR G R CARTER

MR R P THOMSON

IAIN HEGGISON								APPELLANT

A & W BERNARD								RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr R Pilkington, Advocate
Instructed by -
Messrs MacPhail Lawrence Partnership
Solicitors
65 Bath Street
GLASGOW   G2 2DD
	
For the Respondents	Mr K D B McLew, Solicitor
Of -
Messrs Holmes MacKillop
Solicitors
109 Douglas Street
Blythswood Square
GLASGOW   G2 4HB	

LORD JOHNSTON:

1.	In this appeal the appellant employee seeks to challenge a decision of the Employment Tribunal dismissing his claim for disability discrimination in relation to his dismissal from his employment with the respondents.

2.	The Tribunal made the following findings in fact:- 

“1.) The respondents are a limited company, engaged in the timber processing trade and employing around 40 employees..

2.) The applicant was employed as a machine operator.  He operated a “chipper”, which was a machine equipped to reduce scrap timber to a chip material, which has a variety of uses.  Ordinarily, the machine is capable of operation by itself, but may jam up if two or more pieces of material feed into the equipment at the same time.  In these circumstances, it was the applicant’s responsibility to pull the pieces of timber out of the mouth of the equipment.  This could be a heavy and demanding task, requiring physical strength and dexterity.

3.) In December of 1990, the applicant suffered an accident at work.  Whilst changing a blade on the equipment, the blade fell onto the applicants left hand, causing substantial tissue injury to the applicant’s thumb and palm.  There was no damage to the bone, but the two tendons in the thumb were severed.  The applicant was taken to hospital where initially the injuries were sutured.

4.) The applicant’s subsequent medical history is contained in a medical report (production A4).  It became clear by early February that the applicants thumb function was impaired.  On February 5th, he was admitted to hospital again and treated as a day patient.  Under general anaesthetic, a substitute tendon was taken from a finger and transferred to the thumb.  He was allowed home in a plaster cast.  By 30th March, it was clear that the tendon transfer had worked but there was “weakness and discomfort in relation to the surgical scars”.  By 20th April, the applicant was still having problems with his hand and was “apprehensive about his ability to return to his usual heavy work”. By 15th June, the hand was described as “more robust and less uncomfortable.  There was evident stiffness in the thumb which was restricting the movement, but not detracting from the power of the hand.”  The applicant was seen again by his specialist on 12 July, when the applicant described how “he still has difficulty with left-hand function when attempting to garden, when the hand became generally sore, swollen with activity, and exhibited sensitivity to the cold.  He consumed on average two to four moderate analgesic eight tablets for his hand discomfort”.

5.) This medical report terminated in a conclusion as follows:

CONCLUSION

This unfortunate man suffered a deeply incised injury to his non-dominant left hand at work when a blade in a chopping machine caught in his first web space.  Either at the time of injury or by subsequent attrition, his long thumb extensor tendon was noted to be disrupted.  This required reconstructive surgery and a four week period of plaster immobilisation.

Some two months following surgery there was evidence of a dystrophic process possibly all secondary to disuse but which slowed his progress and required fuller rehabilitative input.  This has strengthened his hand.

The loss of his previous employment around April 99 prevents a graded return to duties which would demonstrate the true stage of his rehabilitation.  Employers are encouraged to try to make these facilities available to their workforce returning after a spell of sickness absence. It is disappointing that this is not available to him.

I would expect further strengthening and adaptation to the new situation over a further few months allowing return to moderately heavy work.  He continues under clinic review but his maximum recovery should be evident over the next 3 to 6 months.

He feels that over the longer term he will require to find work again of a manual nature.  Input from vocational assessors may allow maximisation of his situation.

I would not anticipate the development of post traumatic degenerative arthritis following this injury.

                                           Hedley J Easter

6.) We heard at length from the applicant as to the nature and extent of the effect of his injuries on his day to day activities.  He clearly found these very frustrating.  Although he did not have any particular hobbies, he was an active individual, and did not like to be beholden to anyone.  He described the problems he had around the house, including an inability to chop wood for the fire, carry shopping, opened tins, and operate gardening equipment, including a lawn mower.  Before the operation, whilst the thumb was immobile, it was standing proud from his hand which he found very difficult to cope with.  After the operation, partial mobility had been restored, but he was still unable to bring his thumb across to contract with the upper part of his hand.  He was therefore unable to grip things securely and was constantly afraid of, for example, dropping crockery.  Inevitably, he favoured his right hand as far as possible.  He found that if he did try to use his left hand for any significant period of time, it became painful and swollen.  It did not seem to the tribunal that the applicant was exaggerating any part of this evidence.

7.) Obviously, the applicant was unable to return to work after the accident.  After the initial treatment, the applicant was clearly of the view that all would be well after a few weeks.  Even at the time of the operation, the applicant believed that recovery would be fairly rapid.  However, recovery was much slower than he anticipated, as can be seen from the conclusion of the medical report.  On 16th June 1999 he was examined for industrial injury disablement benefit and at that stage, he was registered as disabled from 7th April, 1999 to 6th October 1999 on the basis of a “loss of faculty.”  This was described as impaired manual dexterity, grip in left hand weakened, persistent pain in hand.”

8.) In addition to seeing his specialist, the applicant was consulting his general practitioner, who was responsible for issuing his sickness certificates.  Initially, the applicant was signed off for 14 days, then for a number of single months at a time, and finally, in 19th March 99 for two months.  The respondents became frustrated by this.  Like the applicant, they did not see this as a long-term injury and were anticipating a reasonably prompt return to work.  They were prepared to accept quite a lengthy absence, so long as they knew when the applicant was returning, so that they could make temporary arrangements to cover his job.  Unfortunately, the applicant was never in a position to say when he could return.  He relied upon his general practitioner for advice, and his doctor simply could not give a return date in view of the continuing difficulties.

9). We believe that the applicant did not properly communicate these problems to the respondents.  He is a somewhat taciturn individual, and may have some difficulty in conversation in formal settings.  We accept the evidence, particularly of Mr Ramage, that the applicant was firmly of the view that his general practitioner had the final say in these matters and that if his general practitioner did not wish him to return to work, that was an end of the matter.  The respondents might be criticised for not obtaining their own independent medical report on the nature and extent of these injuries.  However, we accept that they believed that the applicant was unwilling to co-operate in such a report, and that this belief was justified in view of the attitude he was taking.  The fact remains that the applicants (sic) were largely unaware of the applicant’s difficulties, regarded the injury as relatively minor, and believed that the applicant’s time off work was being “strung out” by the applicant.

10). The applicant met with the respondents on April 16th 1999.  At this meeting, the respondents explained that the applicant’s position was a key one within the organisation, and that it required to be filled. The applicant was still unable to give a realistic indication of a date for his return to work.  The respondents thereafter took legal advice, and subsequently wrote to the applicant on 20th April terminating his employment.”

3.	Against that background, the Tribunal went on to consider whether or not upon the evidence, the appellant should be regarded as disabled in the meaning of the Disability Discrimination Act 1995 (“the legislation”) and so held.  That decision was challenged by Mr McLew, appearing for the respondents.

4.	Thereafter, the Tribunal went on to consider the question of discrimination and concluded as follows:- 

“However, section 5 goes on to define the word “discrimination” by an employer as “for a reason which relates to a disabled person’s disability, he treats him less favourably than he treats or would treat others.”  In our view, disability must have the same meaning throughout the Act.  It therefore follows, that for an employer to dismiss for a reason related to a “disability”, must mean disability under the Act, not any lesser disability.  The respondents did not know that the applicant was disabled under the Act.  We considered carefully whether they ought to have known, or should have taken such steps as would result in them knowing, for example, instructing a specialist report on their own initiative.  On the evidence, we have come to the conclusion that they acted reasonably in the circumstances where the applicant himself was not in a position to advise as to the long-term nature of the problem.  It seems to us that we have to be able to identify something which ought have put the respondents on notice, and we cannot see any such circumstance in the evidence.  (O’Neill v Sim)

If they did not know that the applicant was disabled under the Act, then they cannot, in our view, be held to have dismissed him for a reason which relates to such disability, since this is to imply knowledge of that disability.  The respondents therefore cannot be said to have discriminated against the applicant in terms of section 5.”

5.	Finally, the Tribunal considered, albeit obiter, the question of justification and concluded:-

“It is not therefore strictly necessary for us to deal with the argument of justification put forward by Mr McLew.  However, we would have to say that, having regard to the terms of paragraph 6.21 of the code of guidance, it was clear to us on the evidence that the ability of the applicant to move large pieces of timber about was the main function of his job; and that there would be no vacant post elsewhere in the premises suitable in the circumstances.  Clearly, safety in a sawmill is a paramount consideration, and we would not have considered it reasonable to expect the employer to make adjustments to take account of the disability, where no light duties were available.  We have considerable sympathy for the applicant who has suffered much, but in the circumstances we have described, the application falls to be dismissed.”

6.	The following statutory provisions are relevant in terms of the legislation:-

“1(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.”

“4(2) It is unlawful for an employer to discriminate against a disabled person whom he employs …..
(d) by dismissing him, or subjecting him to any other detriment”

“5(1)… 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”

2….. 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 disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.”

Section 6 deals with the duties of an employer to make adjustments and subsection 6 is in the following terms:
“(6) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –
(b) in any case, that that person has a disability….”

7.	Mr Pilkington, appearing for the appellant, slightly amended his grounds of appeal and concentrated particularly upon the position of actual lack of knowledge on the part of the employer as to the disability in question.  He said that ignorance on the part of the employer would not necessarily be an answer.  Disability discrimination could take place even if the employer was wholly ignorant of the existence of the disability and this was reinforced both by the Code of Practice and subsection 6 of section 6.  He referred to H J Heinz & Co Ltd v Kenrick [2000] IRLR 144 contrasting it with O’Neill v Symm & Co Ltd [1998] IRLR 233.

8.	On this point, Mr McLew pointed to the disparity in the reasoning as between O’Neill and Kenrick and maintained that if there was a lack of knowledge on the part of both parties, as was the case here, no question of discrimination could arise.  There was no obligation on the part of the employer to obtain further medical evidence in the present case.  The employer had made a substantial investigation and upon the findings was not dismissing on the basis of disability but for other reasons relating to the failure on the part of the appellant to set a date for his return to work and their requirement to fill his job.

9.	In the cross-appeal, Mr McLew submitted that the Employment Tribunal had misdirected itself on the question of disability within the meaning of the Act under reference to the definitions established in Goodwin v The Patent Office [1999] IRLR 4.  There was a serious question whether upon the evidence, the employer should have regarded the consequences of the injury as a substantial impairment but in any event the Tribunal had misdirected itself in determining whether or not there was evidence to support a notion of interference with normal day to day activities.  He referred us to Quinlan v B & Q PLC EAT/1386/97 (Unreported).

10.	Finally, Mr McLew submitted that, in any event, the Tribunal had directed its mind to the question of justification and determined it in favour of the respondents.  That should be determinative of the matter.

11.	The obvious starting point is to determine whether or not the Tribunal were entitled to conclude that upon the evidence before it, the appellant was disabled and not just disabled generally but within the meaning of the terms of the legislation.  The relevant condition had, therefore, to be an impairment which was substantial with long term adverse effects on his ability to carry out normal day to day activities. 

12.	Upon the evidence, construing the word “substantial” as being “more than trivial”, we consider the Tribunal was more than entitled to conclude that that test was satisfied.  The question of “long term” is more difficult but it would appear that the Tribunal with some hesitation accepted that the period which is recommended for consideration in the Code of Guidance, i.e 12 months, was marginally exceeded and therefore this test was also satisfied.  Finally, in this respect, we do not agree with Mr McLew’s submission that the Tribunal did not address the question of normal day to day activities.  In paragraph 4(1) of Schedule 1 to the Act, the following definition is found:-

“an impairment is 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 – mobility, manual dexterity, physical co-ordination……”

13.	We consider the Tribunal were addressing that position precisely.  In the second part of finding in paragraph 6, it refers to the state of the appellant’s hand after the operation.

14.	In any event, it has to be stressed, essentially the question of whether or not a person is disabled within the meaning of the legislation, is a question of fact and provided the Tribunal of first instance applies the right tests against the statutory definitions, this Tribunal will not interfere. We consider that is precisely what this Tribunal has done and we therefore hold that they were entitled to conclude that this man was disabled within the meaning of the legislation and the cross-appeal in this respect, therefore, fails.

15.	In these circumstances the essential question turns upon the fact that, given it is accepted that there was lack of actual knowledge on the part of the employer of such a disability, they nevertheless can be said to have discriminated against the appellant by reason of his disability whether by dismissing him in terms of section 4 or by treating him less favourably in terms of section 5, both of which provisions are of course, fenced by the justification question assuming that such discrimination to have occurred.

16.	In general terms, we are in little doubt that the proper test to be applied in relation to the question of relationship between either dismissal or less favourable treatment and disability is that enunciated by Mr Justice Lindsay in Heinz supra, in particular where he says:-

“There is nothing in the statutory language that requires that the relationship between the disability and the treatment should be judged subjectively through the eyes of the employer.  The correct test is the objective one of whether the relationship exists, not whether the employer knew of it.  This requires employers to pause to consider whether the reason for some dismissal that they have in mind might relate to disability and, if it might, to reflect on the Act and the Code of Practice before dismissing.  Unless the test is objective, there will be difficulties with credible and honest yet ignorant or obtuse employers who fail to recognise or acknowledge the obvious.”

17.	We would recognise that in certain cases the lack of actual knowledge which is rationally based in the sense that the employer would have absolutely no reason to consider that the condition exists, may still be an answer to any charge for discrimination and to that extent the conclusions in O’Neill can be supported.  However, as soon as factors exist in any case which puts the employer on his guard, wherever they may be and each case must depend on its own facts, the employer in our opinion must pause and if necessary take steps on his own initiative to determine whether there exists a state of disability which requires to be addressed, whether by section 6 in terms of adjustment or by not dismissing or treating less favourably the victim.  In Heinz, such factors were held to exist and equally, in the present case, we are of the view that such are present.

18.	In particular, the fact that the appellant was injured at work to the knowledge of his employers, had been off work ever since by reason of that injury and had received medical treatment, including an operation, are all factors in our opinion which should have caused the employer to pause before effecting dismissal, at least in terms of the discriminatory provisions in the legislation.  We recognise that the employee did not seem to accept that he was in fact disabled within the legislation and the communication between him and his employer, even to the extent of interview, was poor.  While it may not apply in every case, we consider that the medical report that was actually obtained immediately prior to the hearing of the Tribunal should have been obtained before dismissal in which case the actual situation would have emerged.  We would not seek to lay down any exhaustive list of steps that an employer who is reasonably on his guard should take.  Each case should depend upon its particular circumstances but it is our view that for the employer to rely upon lack of actual knowledge, such a position must be rationally based and cannot be so based if at the time of dismissal or at the performing or granting of less favourable treatment, the employer should reasonably have taken further investigations to discover the actual situation, then to be assessed in the context of the legislation.

19.	In these circumstances we consider that the finding of the Tribunal that there was no act of discrimination in the dismissal cannot stand.  We hold that in terms of the statute the act of dismissal was at least potentially, discriminatory in terms at least of section 4(2)(d) and 5(1)(a).

20.	Having reached that conclusion, however, that is not the end of the matter, since the definition of discrimination both in sections 4 and 5 is subject to the overall proviso of justification in section 5(1)(b).  The onus is upon the employer to meet that provision which in terms of subsection 5(3), requires the reason to be both material and substantial.

21.	In this respect we consider that, albeit succinctly, the Tribunal have addressed this issue and set out the basis upon which the dismissal was effected which they in the last paragraph of its decision conclude to have been justified.  The legislation plainly allows an employer in appropriate circumstances to act in what would otherwise be a discriminatory way if it can be justified.  Mr Pilkington recognised this by inviting us to remit back to a differently constituted Tribunal to consider the question of justification but we are not prepared to do that having regard to the findings made by the Tribunal in the last paragraph of its decision, which determine the issue on the facts, and meet the statutory test.
22.	In these circumstances this appeal fails for this last reason, without which it would have been allowed.

23.	The appeal is refused.