Appeal No.	 EAT/580/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 November 2001

Before
MR COMMISSIONER HOWELL QC
MR J HOUGHAM CBE
MR R THOMSON 

	

MR P MARSLAND	APPELLANT

PHILIPS SEMI CONDUCTORS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	Mr T R Naylor
Personnel Advisory Services
49 Warrington Road
Cuddington
Cheshire
CW8 2LN	

MR COMMISSIONER HOWELL QC

1	In this appeal which is before us today for preliminary hearing, Mr Paul Marsland seeks to have set aside, as erroneous in law, the Decision of the Manchester Employment Tribunal sitting on 28 February 2001, embodied in Extended Reasons sent to the parties on 27 April 2001 at pages 4 - 9 of our appeal file.  

2	The proceedings before the Tribunal were a complaint of disability discrimination and unfair dismissal by Mr Marsland, against his former employers Philips Semi Conductors Ltd with whom he had been for a period of something over two years, by the time his employment eventually came to an end on 25 August 2000.  

3	There is no dispute that Mr Marsland had originally been employed as a production assistant and that the nature of the work, electronic assembly, involved handling materials and components which Mr Marsland became unable to continue doing.  This was because he either already had or developed a skin complaint which made it impossible for him to handle these materials without gloves and even the gloves themselves caused further irritation, so for practical purposes, he was unable to continue working as a production assistant at all.  

4	What happened was that when this became apparent, the company arranged for him to be transferred to temporary duties as a storeman.  That was what he was actually working at when the temporary arrangement came to an end and he was told that he could no longer be retained on this basis, and was being dismissed because of his incapacity to continue the job for which he had actually been engaged.  

5	Much of the evidence and argument before the Tribunal turned on the issue of whether Mr Marsland counted as disabled for the purposes of the Disability Discrimination Act 1995 or not.  But that does not concern us because the Tribunal’s finding that he was not a disabled person, for the purposes of the special definitions in that Act, is not challenged before us on appeal.  

6	The only issue on the appeal is whether the Tribunal misdirected themselves on the issue of unfair dismissal by holding that Mr Marsland had been fairly dismissed on grounds of capability because he was no longer able to perform the duties of a production assistant, for which he had been originally engaged.  As the Tribunal recorded, it was a contention of the applicant before them that the temporary arrangement, by which he was moved to duties in the stores, had as the Tribunal put it:
“actually changed his contractual terms”
and this bore out the job description Mr Marsland himself had entered on his originating application form to the Tribunal, where he described himself as a “storeman”.  

7	That, however, was plainly not accepted by the Respondent employers, who made it clear in their IT3 answer and throughout, that the arrangement by which he had been transferred to duties in the stores was a temporary job, providing holiday cover.  This had been done on full pay, including shift allowance, so that his remuneration entitlement as a production assistant had, in fact, been maintained.  

8	On Mr Marsland’s behalf Mr Naylor, an employment adviser, appeared on the appeal seeking to persuade us that there is an arguable ground for the case to go forward on a full hearing. He rightly conceded not only that Mr Marsland was not a disabled person on the Tribunal’s finding, but also that if he was properly to be regarded as still engaged as a production assistant, there were no grounds for criticising the Tribunal’s Decision that he had been fairly dismissed on a ground related to capability.  

9	Mr Naylor, however, contended that on the contrary, the effect of the temporary arrangement had been to change Mr Marsland’s contractual terms, so that he had been re-employed as a storeman, either in March 2000 when he was first transferred to those duties, or in May 2000 when the letter to which we shall refer, had been written to him.  On that basis, the Tribunal had erred in law and misdirected themselves in holding him fairly to have been dismissed on the ground of capability, since he had not in fact been incapable of continuing to carry out the functions of a storeman.  

10	The relevant findings of fact by the Tribunal began with their recorded finding on page 5 of the appeal file that:
“The Applicant was employed as a production assistant when he joined the respondent company on 11 May 1998.”

The Tribunal then recorded in paragraphs 5, 9 and 10 what had in fact happened about the temporary transfer to work in the stores department while Mr Marsland was awaiting a report from a Consultant Dermatologist, so that he did not have to wear all the essential clothing provided to employees who worked in the clean environment where production assistants carried out their duties.  

11	It was common ground, as recorded by the Tribunal, that the Applicant had never been offered a full time job in the stores. He knew his job in the stores was not a permanent job, and gave evidence to say he had been under no illusions about this, and knew that it would finish at the end of August.   

12	The Tribunal’s conclusion on the issue of unfair dismissal is succinctly recorded in paragraph 25 of their Extended Reasons as follows:
“As far as the unfair dismissal is concerned the reason for dismissal was a potentially fair reason in that the applicant was not capable of carrying out the jobs for which he was employed.”
And then they returned to that issue, in paragraphs 29 and 30 of their Extended Reasons when they say:
“29 It is also clear that the company did much to find him another post within the organisation and within their sister organisation and warn him clearly that he should be looking for other jobs between May and August.  The reason for him losing his job was the fact that he could not return to the job as a production assistant for which he was employed.
30.   The company would have been severely criticised if they had broken their duty of care to their employee and returned him to a place where his eczema could have flared up again.  In those circumstances the company had no alternative but to dismiss the applicant on the grounds of capability.”

13	It is plain beyond doubt from the Tribunal’s recorded findings of fact and Reasons that that Decision was reached on the basis that the Tribunal were satisfied that the transfer to the duties of the stores had been a temporary arrangement and had not had the effect of altering the terms of Mr Marsland’s employment with the Respondents or the nature of the job for which he was employed, which was as a production assistant.  

14	In order to determine whether there is any arguable ground for attacking that factual basis of the Tribunal’s Decision, we asked Mr Naylor what evidence there was before the Tribunal of any agreed variation in his terms of employment since, in the absence of any such evidence, it was our view that the Tribunal reached the only conclusion that any reasonable Tribunal could have reached on the issue of unfair dismissal. 

15	The only ground Mr Naylor put before us was that the Tribunal had failed to take sufficient account of a letter which was in evidence before the Tribunal, dated 17 May 2000, and written by the employers to Mr Marsland.  This was a letter which recorded a discussion between Mrs Lydia Smith, the Personnel Officer and Mr Marsland, in the light of the Consultant Dermatologist’s report into his condition, and it recorded:
“The report from the skin specialist indicates that a return to Fab work”
which we take to mean fabrication work
“would be extremely likely to result in a reoccurrence of the problems you have experienced previously with your hands.  We have, therefore, decided that this is not an option for you.
We have arranged for you to work in Stores on a temporary basis until the end of August so that you can provide holiday cover there.  You will remain on PF2’s staffing for the next four sets, i.e. until 13 June 2000, after which you will transfer to the Stores headcount.  Your total hours and salary will remain the same.  Your actual work pattern will need to be adapted as required to fit in with the needs of the Stores department.”

The letter concluded by referring to enquires that had been made about the possibility of Mr Marsland obtaining alternative employment with an associated company of the employer, and advising him to look for a job outside Philips during the coming months, with an offer of a reference should this be needed.  The letter concluded:
“Please do not hesitate to contact me if you feel I can be of further assistance to you.”

16	It is common ground, and Mr Naylor admitted, that no other evidence was put before the Tribunal, such as a copy of amended terms and conditions of employment, to support any suggestion that there had been a transfer in the nature of Mr Marsland’s employment from production assistant to storeman.  

17	We have carefully considered Mr Naylor’s arguments, and the terms of that letter, but we have not been satisfied that it is remotely arguable as a ground of appeal that that letter had the effect of altering the contractual nature of the job Mr Marsland was employed to do. We say that, even if the argument that that letter had been the basis of a contractual alteration had been an argument advanced before the Tribunal at the hearing on 28 February 2001.  Whether it was put forward in that way or formed the basis of a contention that it had that effect, was something on which we found ourselves by no means clear from the submissions that Mr Naylor made to us today.  

18	Whether it was put in front of the Tribunal as the basis of such an argument or not, however, it cannot in our judgment, be said that the Tribunal misdirected themselves in failing to conclude that it had the effect of altering Mr Marsland’s employment in the way suggested. On that basis, we cannot see that there is any arguable ground to warrant our directing that this case should go forward for a full hearing before the Employment Appeal Tribunal, and for those reasons we now therefore unanimously dismiss this appeal.