Appeal No. EAT/0551/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 October 2001
Judgment delivered on 8 November 2001

Before
HIS HONOUR JUDGE REID QC
MR K EDMONDSON JP
MRS J M MATTHIAS

MR M LAWRENCE	APPELLANT

J SAINSBURY PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS KATRINE SAWYER
(Of Counsel)
Instructed by
Ms Bastin
Disability Law Service
39-45 Cavell Street
London
E1 2BP	

JUDGE REID QC

Preliminary

1.	At the conclusion of the ex parte preliminary hearing we indicated that the appeal would be dismissed at that stage. Owing to the weight of the list there was not time to give reasons at that stage. We now give our reasons.

2.	This was an appeal by Mr Lawrence against the reserved decision of an Employment Tribunal sitting at Bedford sent to the parties on 7 March 2001.  By that decision the Tribunal held that Mr Lawrence's claims for unfair dismissal and disability discrimination failed.

Facts

3.	Mr Lawrence was employed by Sainsburys as a management trainee in 1988. He was involved in car accidents on 10 November 1993 and 21 August 1994. He was involved in slipping accidents at work on 2 October 1996 and March 1998. The result of these accidents was that Mr Lawrence was left with back pain. He also had a number of other unrelated sickness absences. The result was described as a carefully documented saga which had continued since shortly after Mr Lawrence's first car accident.

4.	The Tribunal held that there was no evidence that his back pain inhibited his work performance in customer services at all but it did mean that he did have difficulties with driving to and from work and that he was not suitable for other types of work. Mr Lawrence described his employment in his application to the Employment Tribunal as being "Customer Services Manager." 

5.	Sainsburys run a large number of supermarkets organised by regions and districts within the regions. An associated company, Homebase, runs DIY stores. Mr Lawrence was, like other managers, required to be available for work at any Sainsburys supermarket within the district to which he was appointed and was subject to a mobility clause (though personnel were not normally required to be mobile outside their districts). His district at the time of his dismissal was District 24 covering West Herts and the Bedfordshire/Essex borders. It is part of the Eastern Region. The boundary of District 24 abuts on the Central and Western Region. Ms Jenkins was the District Personnel Manager for District 24.

6.	In the five year period beginning with his 1994 car accident Mr Lawrence was off work more often than he was present. During the period the Tribunal found there was a significant level of tolerance degree by Sainsburys and a pedantic and uncooperative attitude from Mr Lawrence. He had moved to Wooton, near Bedford, in March 1995 whilst still off work from his accident and was transferred as a temporary measure to Luton, about 20 miles from his home (although there was no formal vacancy for him there). By July 1996 Mr Lawrence and Ms Jenkins had started discussions to make his move to her District permanent, but on 2 October 1996 Mr Lawrence reported he had slipped at work. He was then off work for almost another year. On his return to work he had rehabilitation periods at Fairfield Park, Bedford, and Bramingham Park, Luton. He was then appointed Customer Services Manager at St Albans as a permanent post in January 1998. Within weeks he again reported he had slipped at work and was off work for another six months from 1 March 1998. He was due to restart on 17 August but then requested a transfer on the basis that travel aggravated his back injury. No permanent transfer could be arranged because there was no vacancy. 

7.	On 28 August he met Ms Jenkins and the District Manager Mr Mooney and Mr Lawrence told them he intended to move onto the district so he could live close enough to the store at St Albans to undertake the journey to St Albans on a daily basis. It was arranged he would restart work at St Albans on 7 September 1998. On 14 September Mr Lawrence again requested a transfer saying for the first time he had not been trained for the role he was undertaking. This took Ms Jenkins by surprise as he had done the job before. On 23 September there was a further meeting when it was agreed he would take a temporary position (his third temporary position) at Luton for four months to help him rehabilitate after his last long-term sickness absence and to enable him to have appropriate payslips to show any prospective landlord. Sainsburys also arranged loan of £1000 to Mr Lawrence.On 25 September Ms Jenkins wrote to Mr Lawrence following the meeting stressing this would be the last temporary transfer  arranged for him. She told him if he could not resume his position at St Albans in February 1999, on medical grounds, Sainsburys would have no alternative but to terminate his contract under their medical dismissal policy.

8. 	Between October 1998 and January 1999 Mr Lawrence did not have any time off work owing to his back, though he did for other reasons, bringing his total of time off work in the previous five years to 670 days out of approximately 1000 workable days, according to Ms Jenkins' calculation.

9.	On 1 February 1999 there was a further meeting lasting an hour by the end of which it was arranged Mr Lawrence should go to Harlow for two weeks where there was an available trainer because he said he had still not finished the training he had started at Luton. On his first day at Harlow (8 February) he complained to Ms Jenkins by e-mail about the journey. In response to this Ms Jenkins met him at Harlow on Thursday 11 February, and Mr Lawrence re-asserted he intended to move onto the District and that when he did he would be fully mobile on the District. He was told his old position at St Albans was no longer available as it had been filled. Because of his difficulties in traveling to Harlow it was arranged he would continue his training at Biggleswade, the nearest store to Bedford in Ms Jenkins' District. He was told that if the journey to Biggleswade proved difficult there would be no alternative to medical dismissal. At this stage Mr Lawrence asked if there were any jobs he could work two days a week at Band E, perhaps supervising on checkouts. He said the salary available (in the band  £4409 to £4576) was "fair enough". He suggested he would then get rid of his car and identified six stores he felt he could get to by public transport.

10.	Ms Jenkins confirmed the arrangement for Mr Lawrence's transfer to Biggleswade to complete his training. Then on 21 February Mr Lawrence says he wrote to Ms Jenkins setting out his proposals for his future. He suggested in summary that he could work up to four days a week which would enable him to travel further, and would consider any position (preferably staff grades D or E). The Employment Tribunal makes no finding as to when that document was produced but found "whether that letter had been sent or not" that Ms Jenkins never saw it before it was produced by Mr Lawrence in his bundle of documents for the Tribunal. On 24 February Mr Lawrence e-mailed Ms Jenkins reporting a week's absence for flu and complaining his training programme was too intense and asking if he could stay at Biggleswade until his training was "fully complete". He repeated his complaint on 13 March when he asked if he could reduce the days he was working because he was having difficulty working five days and looking for accommodation two days a week. Ms Jenkins recommended to Mr Mooney that Sainsburys proceed with medical severance. On 17 March 1999 the Biggleswade reported Mr Lawrence had gone home because "his back was hurting too much". The following day Ms Jenkins wrote to Mr Lawrence to arrange a meeting "to discuss your progress and follow up on your request for redeployment options". The meeting originally arranged for 23 March, eventually took place on 6 April, after Mr  Lawrence reported to the Letchworth Manager an hour and a half after was due to start work there that he had "mysteriously" acquired a throat infection requiring him to be away for seven days.            

11.	On 30 March Ms Jenkins e-mailed the six stores Mr Lawrence had identified at the meeting of 11 February asking for vacancies for a supervisor (band D or E) working 2 days per week preferably Monday and Tuesday. The e-mail recorded that owing to his back problem he could only work in customer services. Replies were received from all six stores, despite the intervening Easter holiday. No vacancies were available. Ms Jenkins did not contact Homebase because she took the view rightly (as the Tribunal held as a matter of fact) that the nature of the trade made it impracticable given Mr Lawrence's bad back and because he had not mentioned Homebase. As the Tribunal held as a matter of fact the inquiries made all that were necessary and any further inquiries would have been pointless because Mr Lawrence was so pedantic about his requirements. In the meantime Mr Lawrence had discovered there were vacancies for various part-time lower grade posts in Sainsburys stores in Biggleswade, Bedford, Luton and Bramingham Park.

12.	When the meeting took place Mr Lawrence knew (as the Tribunal found, and contrary to his evidence) that he faced the prospect of dismissal. He, as the Tribunal found, was at that time doing little more than playing an elaborate game with his employers. He was told there were no vacancies either at his present management grade or at a lower grade. He made no mention either of his letter bearing date 21 February or his inquiries. He was given (as the Tribunal held) full opportunity to present his case and participated fully in the discussion. He expressed surprise a company as big as Sainsburys had nothing. He accepted he had said he would take up the Customer Service Manager position at Letchworth but said his back was still causing problems. He confirmed he had not moved into the District and did not raise any possibility of moving. He was reminded that he had been warned of the possibility of medical dismissal at the meeting of 1 February and agreed his back was still playing him up and preventing him doing his job. He accepted that there had been no change in his condition since the last medical report Sainsburys had received. Ms Jenkins then told him that there was no alternative to dismissal on medical grounds.

13.	Two days after the meeting, on 8 April, Mr Lawrence wrote to say he was moving to his sister's house in Welwyn garden City, within the District and close to a number of Sainsburys stores. Mr Lawrence appealed against that decision and made his application to the Employment Tribunal. His appeal against his dismissal failed.

Tribunal's findings on the law

14.	The Tribunal held that Sainsburys dismissed Mr Lawrence for a potentially fair reason under section 98 of the Employment Rights Act 1996 because it related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do. They went on to set out section 98(4) of the Act and noted that in seeking to test the reasonableness of the employer's actions they were entitled to look to the provisions of the ACAS Code of Practice.

15.	The Tribunal referred to sections 5 and 6 of the Disability Discrimination Act 1965 and drew specific attention to section 6(3)(d) and (e) on which Mr Lawrence's counsel had focused in her final submissions. It is clear, contrary to the assertion made on behalf of Mr Lawrence that the Tribunal carefully considered the law and applied it. There is no substance in the suggestion that the Tribunal failed to follow the sequential steps required by the Disability Discrimination Act and identified in Morse v Wiltshire CC [1998] IRLR 352. The Tribunal did not go through the mechanistic exercise of spelling out each step but any fair reading of the decision makes it plain that the proper steps were followed.

16.	Following these proper steps the Tribunal applied the law to the facts as they found them. They found that the main reason for the dismissal was connected with his disability, because he could not drive to sites where there was suitable work available and there was no suitable work available at the sites he could reach. The Tribunal went on hold his dismissal was justified because the extent of his disability and his failure to maintain any significant period of full time work were both material to the circumstances of the particular case and substantial (see section 5(3)). The Tribunal went on and held that "it simply could not be said to be "reasonable" to expect them to pursue issues in a letter of which they had no knowledge and that, given the lengths the employer had gone to over such a period to accommodate him, it simply could not be said to be reasonable by any standards to go any further beyond the meeting of 6 April. There was therefore no breach of the Disability Discrimination Act 1995 and a fair dismissal following a proper procedure.

The Appellant's submissions

17.	The first submission was that the Tribunal had failed to follow the process required by the Act. This was plainly unsustainable on a proper reading of the judgment. The Tribunal carefully and correctly applied the law. The Tribunal found that Sainsburys had, as a matter of fact in the circumstances of the particular case, taken all reasonable steps. It is fanciful to suggest that the Tribunal did not have regard to the factors set out in section 6(4), when the subsection was clearly in the Tribunal's mind and had been specifically referred.

18.The Tribunal were then said not to have asked itself objectively what adjustments it would have been reasonable to make as opposed to those Sainsburys believed Mr Lawrence required. The findings of fact make it clear that the Tribunal found that objectively, given that Mr Lawrence was extremely pedantic in his requirements and was doing little more than play an elaborate game with Sainsburys, they were reasonable in looking only to those adjustments which they believed were required by Mr Lawrence. Their approach to adjustments cannot be faulted because of Mr Lawrence's uncommunicated requirements. The Tribunal noted that the striking feature of the case was the prolonged period over which Sainsburys had supported and accommodated Mr Lawrence as a result of his back pain and other sickness absences.  The adjustments were plainly entitled to take account of Mr Lawrence's expressed and apparently continuing intention to move house.

19.	The next submission was that, in the alternative, Sainsburys should have made inquiries as to whether there was a place nearer Mr Lawrence's home where he could continue his employment, and that the Tribunal failed to consider the range of possibilities which would have been open to a company like Sainsburys (eg by waiting until a vacancy arose and taking advantage of the mobility clause in staff contracts). It was said that it was not for Mr Lawrence to identify posts but for the employer to track them down and offer them. This was a bad submission because it was (on the findings of fact) pointless to proffer posts other than those which Mr Lawrence considered appropriate. The Tribunal clearly did have in mind the extent of the Sainsburys empire. The fallacy that underlies this submission is that it disregards the findings of fact about Mr Lawrence and his attitude. The object of the Act is to ensure that employers do not discriminate against disabled employees and take all proper steps to enable them to continue their careers. It is not to enable an employee to manipulate his employer to his own advantage and to require that everything revolves round his wishes. The Act does not require the employer to engage in pointless theoretical exercises: it requires the taking of reasonable steps. Here the findings of fact made it clear that Mr Lawrence's attitude precluded the need to take steps which might have been appropriate and reasonable for another disabled employee.

20.	The next submission related to Sainsburys' failure to offer any of the posts identified by Mr Lawrence. The jobs known to, but not mentioned by, Mr Lawrence at the meeting of 6 April were low-grade, non-managerial jobs, eg part-time cashier. The problem with the submission is that it ignores the finding of fact as to Mr Lawrence's attitude. The finding of fact (which could not be said to be perverse) was that Sainsburys did all it could reasonably be expected to do. The Tribunal correctly did not regard the failure to identify and offer to Mr Lawrence other low-grade jobs as a failure to take reasonable steps. The Act does not impose liability by reference to hindsight, nor does it require that the efforts of the employer should have been utterly exhaustive. It requires the taking of such steps as if reasonable. The Tribunal found on the facts that this is what Sainsburys did.

21.	The final submission related to the finding that the extent of Mr Lawrence's disability and failure to maintain any significant period of employment were material to the circumstances of the case. The submission, as we understood it, was that the absences arising from the specific accidents should be ignored because he had recovered from them and cannot have been material to the circumstances of the case or substantial. This submission ignored the fact that he had a very poor attendance record, quite apart from the long periods of absence immediately following his various accidents. The decision of the Tribunal was not in any way undermined by its holding that Mr Lawrence's attendance record was necessary. 

Conclusion

22.	Despite the sustained argument of counsel on behalf of Mr Lawrence we were quite unpersuaded that any of the points raised in the skeleton argument and amplified in oral submission indicated any real case for saying that the Tribunal had erred in law, still less that any of the findings could be characterized as perverse. We therefore concluded that this was not an appeal which required to go to an inter partes hearing and dismissed it at the conclusion of the ex parte preliminary hearing.