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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Joy v. Connex South Central [2002] UKEAT 975_01_1311 (13 November 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/975_01_1311.html Cite as: [2002] UKEAT 975_1_1311, [2002] UKEAT 975_01_1311 |
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At the Tribunal | |
On 17 October 2002 | |
Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MRS R A VICKERS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MS A THOMAS (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH |
For the Respondent | MR L EVANS (of Counsel) Instructed by: Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TW |
JUDGE PETER CLARK
The facts
The Tribunal Decision
The Tribunal found that dismissal was for a potentially fair reason, capability. In deciding whether dismissal for ill-health capability was fair or unfair, applying section 98(4) of the Employment Rights Act 1996, the Tribunal referred to the guidance given by Phillips J in East Lindsey District Council -v- Daubney [1977] IRLR 181, 184, and in particular the need for the employer to take such steps as were sensible according to the circumstances to consult the employee and to discuss the matter with him and inform themselves of the true medical position.
The Tribunal found the dismissal to be fair given the following circumstances; the period of time the Applicant had already been off work, the lack of a date for surgery, the fact he would not be able to return to work prior to his operation and not for a considerable time thereafter, during his rehabilitation, if at all; and the commercial difficulties to the Respondent caused by his absence.
(2) Disability discrimination
The Tribunal accepted that the Applicant was disabled; that he was treated less favourably by being dismissed and that related to his disability. However they found that the prima facie discriminatory treatment was justified by the Respondent, balancing the interests of the Applicant and the Respondent. They found that no adjustment as an alternative to dismissal was practicable, since the Applicant was unable to perform even light duties and suitable alternative work was not available. There was no failure to make reasonable adjustments in the form of alternative work. If there was a failure, it was justified.
The Appeal
Underpinning Ms Thomas' submissions on this part of the appeal is the proposition that the Tribunal failed to consider the Applicant's case that the Respondent had not obtained up-to-date medical evidence from suitably qualified doctors, that is specialist cardiologists on the Applicant's medical condition, nor had they carried out a properly conducted risk assessment. Based on that proposition it is contended:
(1) In the absence of proper medical evidence and a risk assessment the Tribunal was unable to properly consider whether or not the Respondent had failed to make reasonable adjustments under section 6 DDA, leading to a finding that the Respondent was prima facie in breach of section 5(2) DDA, subject to the defence of justification. Further, up-to-date medical evidence was required in order for the Tribunal to make findings on the nature and extent of the Applicant's disability and the impact of his disability on his work and the disadvantage which he suffered by reason of the employment arrangements.
(2) In these circumstances the Tribunal was unable to follow the Court of Appeal guidance in Jones -v- The Post Office [2001] IRLR 304, paragraphs 26, 27 and 32 (per Pill LJ) when considering the issue of justification.
(3) The Tribunal could not find, on the limited medical evidence available, whether the Respondent's reasons for the admitted less favourable treatment for the purposes of section 5(1) DDA was both material to the circumstances of the case and substantial (section 5(3) )Jones paragraphs 37, 39 per Arden LJ.
(4) The Tribunal failed to properly consider what adjustments were available to remove or reduce the disadvantage suffered by the Applicant and whether it was practicable for the Respondent to make adjustments. Fu -v- London Borough of Camden [2001] IRLR 186; Cosgrove -v- Caesar & Howe [2001] IRLR 653.
"Mr Joy asked his Consultant if he could continue to attend work awaiting his operation. His Consultant said "no" "
"IA (Iain Anderson) thanked CD (Dobson) for not asking Dave Joy to come down to attend the hearing and explained that he had contacted Mr Joy's doctor who was empathetic [sic. emphatic] that Mr Joy did not return to work until he had his heart operation, not even for light duties."
"At the reconvened appeal hearing, I explained that I had spoken with Mr Joy's GP who had confirmed that until the operation, Mr Joy was not able to carry out even light duties."
"It would be justifiable to terminate the employment of an employee whose disability makes it impossible for him any longer to perform the main functions of his job, if an adjustment such as a move to a vacant post elsewhere in the business is not practicable or otherwise reasonable for the employer to have to make."
"The medical evidence was clear that the Applicant was unable to perform any duties prior to his operation; that the future prognosis was unsure and that the Respondent needed someone to perform his duties."
"risk assessment which is properly conducted, based on the properly formed opinion of suitably qualified doctors ….."
That was set in the context of a Tribunal wrongly rejecting the employer's defence of justification where such an assessment had been carried out by the employer.
"There will, no doubt, be cases where the evidence given on the Applicant's side alone will establish a total unavailability of reasonable and effective adjustments."
In our judgment this case is one such.
Unfair dismissal
(1) that the Tribunal ought to have found that the Respondent failed to ascertain the true medical position in this case. For the reasons which we have given earlier in relation to the claims of disability discrimination we cannot accept that submission. The medical position was absolutely clear. The Applicant could do no work until after surgery. He had been off work for six months at the time of dismissal. There was no indication when, if at all, he might be able to return to some, and if so what work for the Respondent.
(2) As to the question of suitable alternative employment, Ms Thomas seeks to challenge the Tribunal's finding at paragraph 9 of their Reasons that the medical evidence was conclusive that the Applicant would not be fit for work until after his operation and a rehabilitation period would be necessary, on the basis that the finding was based on no evidence. It was. That was the opinion expressed by the Applicant's GP in his report to Ms Li dated 26 April 2000, and maintained, following the Applicant's surgery in a letter to the Occupational Health Consultant dated 28 November 2000.
Based on the medical picture, as confirmed by the Applicant and his partner to the Respondent on and before 14 July, the Tribunal was quite entitled to find that alternative employment, or light duties, was simply not an option prior to surgery.
(3) That the Tribunal left unresolved key disputed areas of fact. First, reference is made to paragraph 8(iv) of the Reasons, where the Tribunal record a dispute as to whether, at the meeting on 14 July, the Applicant said that it could be any time between now and the next two years before his operation was performed on the NHS, as the Respondent's note recorded, or whether that was a reference to a recent news item which the Applicant had seen relating to NHS waiting lists. In our judgment that question of emphasis was not material. The Tribunal found, permissibly, that be that as it may the fact remained that as at 14 July the Applicant had been off sick for nearly six months and had no date for the operation.
"I do not know if his record of 22 years considered"
Conclusion