Appeal No.EAT/1304/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 February 2001

Before
MR RECORDER BURKE QC
MR J R RIVERS
MR A D TUFFIN CBE

MR K L BAKER	APPELLANT

1) MR V BAILEY 2) LONDON BOROUGH OF SOUTHWARK	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr C QUINN
(Of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme	

MR RECORDER BURKE QC

1.	This is the Preliminary Hearing of Mr Baker’s appeal against the dismissal by the Employment Tribunal sitting at London South chaired by Mr Peters and sent to the parties with Extended Reasons on 5 September 2001, of Mr Baker’s complaints against his employers The London Borough of Southwark and Mr Bailey, their cashier manager based on allegations that they had been guilty of discrimination against him and had failed to make reasonable adjustments for the circumstances of his disability contrary to the Disability Discrimination Act 1995.

2.	Mr Baker is or was employed by Southwark as a cashier.  He is disabled by a degenerative condition of his spine and consequent pain.  He was recognised by Southwark as disabled from 1997.  It had been medically recommended that he should be able to change his posture from time to time and should have an ergonomically satisfactory chair.

3.	Mr Baker made 4 complaints that his employers and on their behalf Mr Bailey who as cashier manager was in charge of the department in which Mr Baker worked as a cashier, had discriminated against him unlawfully.

4.	To take them in the order in which they are set out in the Employment Tribunal’s decision, his complaints were: firstly, that the employers had discriminated against him by making a decision on 22 September to transfer him from the office in which he worked to a different office which was further from his home and required a longer drive, secondly, that they had discriminated against him in deciding a few days later to move him not to the office originally designated as that to which he would move but to the Dulwich office, and thirdly, that they had discriminated against him in failing to deal effectively or with sufficient speed or indeed at all with his grievance brought in respect of the subject matter of the first two complaints.  Fourthly, Mr Baker claimed that the employers had failed to make reasonable adjustments for him in moving him from or failing to keep him at an office to which he had been moved before the matters to which we have just referred where, because there was more work or the work was more intense, he would have had as a result less opportunity to concentrate on the pain which he was suffering.

5.	The Tribunal rejected all of these complaints.  As to the first, the Tribunal found that the decision to transfer Mr Baker was reached because the employers perceived a need to separate Mr Baker from another employer, Mr Boodoo, there having been, to put it neutrally, a major falling out between them.

6.	The Tribunal concluded that the reason for the decision to transfer Mr Baker was based on the employers’ desire to avoid the consequences of that falling out and was not based on Mr Baker’s disability and that they would not have treated somebody who was not disabled in the same circumstances any differently.  The Tribunal also concluded that there was no detriment to Mr Baker arising from the first decision because it was never put into effect.

7.	So far as the second decision was concerned the Tribunal rejected Mr Baker’s complaint as to that decision for the same reason as that which had been the basis of the Tribunal’s rejection of the complaint in respect of the first decision, that is to say that it was based on the employers’ perception of their needs and nothing to do with disability.

8.	The third complaint, the failure in relation to the grievance procedure, was rejected because the Tribunal concluded on the facts that what had happened in relation to the grievance procedure had nothing to do with Mr Baker’s disability.  As to the fourth complaint the Tribunal concluded that, before any question of making adjustments arose Mr Baker had to prove that there have been arrangements made by the employers which placed Mr Baker at a substantial disadvantage; and the Tribunal found that the employers had not made any arrangements at all which fell within section 6 of the Act and that, if they had, such arrangements did not place him at a substantial disadvantage.

9.	Mr Baker’s Notice of Appeal, which he completed himself not being represented before the Tribunal and not being represented in the preparation of his appeal papers, contains 12 pages of criticisms and complaints of the conduct of the hearing which took place over 4 days in August 2001.  Those criticisms are supported by an affidavit sworn on 28 November 2001 which runs to some 22 pages and 64 paragraphs.  There is also a response in detail by the Chairman of the Tribunal to those parts of the affidavit which go to Mr Baker’s case that the Tribunal was biased against him and that it did not conduct the hearing fairly.

10.	We have read all of the papers and in particular Mr Baker’s Notice of  Appeal, his Affidavit and his Skeleton Argument over a considerable time and with care.  Mr Baker has been represented today by Mr Quinn under the ELAAS Scheme.  We are grateful to Mr Quinn for the way which he has put forward his submissions on Mr Baker’s behalf.  He has submitted to us that there are 4 matters which give rise to real concern as to the way in which the Tribunal reached his decision.  He has not, on behalf of Mr Baker in any sense abandoned all of the other matters which are set out in the documents to which we have referred; and we acknowledge and understand that all of those other matters are still extent grounds which Mr Baker wants us to consider.

11.	Mr Baker has however been good enough to indicate that he is content that we should give a reasoned decision in relation to the 4 specific causes of concern which Mr Quinn has identified and that in relation to the other matters raised by the documents to which we have referred, in respect of which we have said to Mr Baker and to Mr Quinn we do not think any arguable ground of appeal arises, a detailed and reasoned decision is not necessary although we have made it clear that we will give such a decision if asked to do so, although it would take us perhaps a little time to do it.

12.	This judgment, therefore having recorded as it has done that we have paid careful attention to all the complaints and grounds of appeal put forward and considered them all, deals from this point on with only the 4 individual concerns raised by Mr Quinn.  We make it clear that so far as all the other points raised by Mr Baker are concerned, we do not believe that there is any arguable ground of appeal.

13.	The first of the 4 grounds for concern put forward by Mr Quinn is that Mr Baker was prevented from asking any questions in cross examination on the vital issue at least to the first 2 complaints, namely what happened between himself and Mr Boodoo.  It has to be said that on page 7 of the Notice of Appeal, Mr Baker says that he was told that Mr Boodoo was not relevant to proceedings rather than prevented from asking questions about the vital incident between himself and Mr Boodoo; and we confess that on reading that passage in the Notice of Appeal we had thought that Mr Baker was complaining that he had been prevented from asking questions about Mr Boodoo as a person or as a character or about Mr Boodoo’s history; but we acknowledge, of course, that Mr Baker is not a lawyer and cannot be expected to draft his Notice of Appeal with the same accuracy as that expected of a lawyer.

14.	Unfortunately if his real case is that he was not allowed to ask questions about the breakdown in relationships between himself and Mr Boodoo, which was or might be thought at least in some ways to have been central to some of the issues before the Tribunal, that complaint has not been responded to by the Chairman because it does not emerge, or emerge with clarity, from the Notice of Appeal or from the Affidavit to which we have referred and to which the Chairman responded.

15.	If this matter stood alone we would have suggested and indeed decided that the right course was for this modified complaint to be put to the Chairman for his comments before making a decision at this preliminary stage; but having regard to the fact that we believe that 2 other of the 4 points advanced by Mr Quinn do disclose an arguable ground of appeal and should go through to a full hearing, it seems to us that the most efficacious way of dealing with this ground is not to adjourn our consideration of it.  We take the view that it is arguable that, if Mr Baker was prevented from asking questions in cross examination about the breakdown in the relationship between himself and Mr Boodoo there might have been an error of law.  Thus we are going to let this ground of appeal go through to a full hearing; but it is clear to us that this ground will have to be referred to the Chairman for his comments which comments can then be considered by the division of this Appeal Tribunal which hears the appeal.

16.	The second specific concern identified by Mr Quinn comes in part in this way.  It is set out in paragraph 15 of Mr Baker’s affidavit.  He says that there came a point during the course of the reading by the Tribunal of his witness statement at which the Tribunal adjourned and then reconvened.  The Chairman then said that he was not going to read the statement any more and said (and we quote directly from the affidavit):-

“’There’s too much of what you don’t need and not enough of what you do.  You will lose’”

Now, if that was said then arguably there was an injustice amounting to an error of law; the Tribunal or one of its members might appear to have been indicating at an early stage of the proceedings that it or he had formed a view about the case.  We must point out, however, that the Chairman having been asked about this says in terms that he may well have informed Mr Baker that if he did not concentrate on the relevant matters then the outcome might well be that he would lose, and if the word ‘if’ appeared before the words of which Mr Baker complains then those words which are the subject matter of the complaint would have a totally different message.

17.	We take the view that this complaint is sufficiently serious for it to be worthy of consideration at a full hearing at which the Respondents will be able or may be able to provide their version of what was said.  The background to it, which will no doubt have to be investigated further should there be a full hearing, is that the Tribunal were concerned about the extent to which the statement contained irrelevant matters and irrelevant detail; on a preliminary reading it seems to us that concerns that the statement did contain irrelevant matters and irrelevant detail may have been well founded; but that is not for us to express any concluded view about; nor do we express any concluded view about what was actually said or whether Mr Baker is ever going to be able to prove that what he alleges was said was in fact said.  Because the allegation is so serious as we have said we think it right that it should be investigated at a full hearing.

18.	The next complaint also involved a serious allegation.  It involves the allegation that, at the point at which Mr Bailey was giving evidence, an adjournment arose and Mr Baker says that, during the course of that adjournment, he observed that Mr Bailey and Counsel for the Respondents were talking.  Mr Baker complains that, after this break in which he had seen Counsel and Mr Bailey talking, Mr Bailey’s evidence was more helpful to the employers and to himself than it was before this adjournment and this talking had taken place.

19.	The Chairman has plainly looked at his notes as to what happened here and has described to us that the adjournment took place after Mr Bailey had been cross examined during the course of the afternoon of the second day and before he then came to be re examined.  Mr Baker does not say and has no evidence that Counsel and Mr Bailey were talking about the evidence that Mr Bailey had given or was going to give; and it is not at all surprising if in re examination Mr Bailey’s evidence was of a rather different tenor to that which Mr Baker was eliciting in cross examination.  We do not think it was necessary, having regard to the absence of any real evidence that Counsel was talking to Mr Bailey about the case, to have any further investigations made in this respect as suggested by Mr Quinn; we do not think that what has been put before us gives rise to any arguable ground of appeal.

20.	Lastly, there is a complaint made about the Tribunal’s approach to its decision on the issue of reasonable adjustment.  The Tribunal, as we have indicated, concluded that there had been no making of arrangements in this case on behalf of the employer at all in the context of the relevant facts, namely moving or not moving Mr Baker from one office to another and therefore that the requirements for the existence of a duty on the employer to take steps to make reasonable adjustment simply did not arise.

21.	The Tribunal concluded that there were no arrangements made because whether one office was busier than another did not, the Tribunal thought, constitute arrangements.  We take the view that it is arguable that the moving of an employee to or from an office does amount to the making of arrangements.  That would not of itself be enough because the Tribunal then went on to find that, even if there were arrangements, they did not place Mr Baker at a substantial disadvantage; but we think that it is also arguable that they erred in their approach and possibly in their factual conclusion so far as that is concerned.

22.	The medical evidence certainly does not appear to have supported the case that Mr Baker would be better off in a busier office, but Mr Baker had given evidence about that and the Tribunal may, (we are not suggesting for one moment that it did) have misunderstood or failed to appreciate that the most recent and up to date medical evidence which we think was dated 9 September, related to the busier rather than the less busy place of work.  Thus we think that there is arguable grounds of appeal in this respect too.

23.	Our decision, therefore, is that this appeal should go forward for a full hearing but only on the 3 grounds which we have identified.  That will undoubtedly need some modification to and probably the wholesale redrafting of the Notice of Appeal.  Whether Mr Quinn feels he can do that today or hereafter or whether it should be done by other means is a matter for Mr Quinn to discuss with Mr Baker; but it is perfectly clear that there must be an amended Notice of Appeal.