Appeal No.	 EAT/975/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	          On 17 October 2002
Judgment delivered on 13 November 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MRS R A VICKERS

MR D JOY	APPELLANT

CONNEX SOUTH CENTRAL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

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

1	By an Originating Application presented to the London South Employment Tribunal on 10 October 2000 the Applicant, Mr Joy, complained of unfair dismissal and breach of contract by his former employer, the Respondent Connex South Central.  The claims were resisted.  They came before a Tribunal chaired by Mrs J Gilbert on 2 March 2001.  On that day the Applicant was permitted to amend his complaint to add claims of disability discrimination contrary to both section 5(1) and (2) of the Disability Discrimination Act 1995 (DDA).  The breach of contract claim was later abandoned.  Following a further hearing on 18 April and deliberation in private on 7 June 2001 the Tribunal promulgated their Decision with Extended Reasons on 3 July 2001.  The remaining claims of unfair dismissal and disability discrimination were dismissed.  Against that Decision Mr Joy now appeals.  

The facts
2	The Applicant commenced his employment with British Rail, later the Respondent, in April 1978.  At the relevant times, in the year 2000, he was employed in a clerical position at Hurst Green Station, Surrey.  His duties were mainly in the ticket office.  He also swept the platform and changed posters.  

3	In January 2000 he visited his cardiologist who recommended a heart investigation.  He was signed off sick on 20 January.  That remained the position throughout that year.  On 28 March an angiography revealed significant narrowing of two of the coronary arteries.  Heart by-pass surgery was advised.  On 7 April Ms Li, one of the Respondent’s Occupational Health Advisers visited the Applicant.  She wrote to his GP, who replied on 24 April referring to the investigation results and proposed surgery, expressing the opinion that in view of the Applicant’s heart disease he would probably be on sick leave for a considerable length of time.  On 8 May Ms Li forwarded that information to Pauline Hayes, a Health Welfare and Pensions Adviser.  She, Ms Li, completed a form describing the Applicant as “U1”, that is unfit for all duties.

4	On 6 July a home visit was suggested to the Applicant.  He was advised that at that meeting, scheduled for 14 July a decision may be made with regard to his future employment.  That meeting took place, attended by the Applicant, his partner Pam Algar, his line manager, Mr Parish and Mr Parker, Pensions and Welfare Manager.  The Tribunal found that had the Applicant received a definite date for surgery Mr Parker would have tried to find him alternative duties.  No date had been given to the Applicant.  He was dismissed on health grounds.  

5	Against that decision he appealed internally, represented by his trade union officer, Mr Iain Anderson.  The appeal was heard by Mr Dobson, then Commercial Manager, on two days, 19 September and 5 October.  The Applicant felt unable to attend the second day of hearing due to the stress of the journey from his home in Kenley to Crawley, where the hearings took place.  He still did not then have a date for his operation.  The appeal was dismissed.

The Tribunal Decision
6	(1) Unfair dismissal
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
7	DDA
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.

8	The difficulty faced by Ms Thomas in advancing those submissions, it seems to us, lies in the facts of this case.  

9	In his evidence to the Tribunal the Applicant said that he had unstable angina, meaning that he could suffer a heart attack at any time.  He was signed off work for the whole of the year 2000.  Further, in his Originating Application presented on 10 October 2000 and completed and signed by his trade union representative, Mr Anderson, this sentence appears:
“Mr Joy asked his Consultant if he could continue to attend work awaiting his operation.  His Consultant said “no”  ”

10	That account was consistent with the Respondent’s notes of the second day of the appeal hearing before Mr Dobson held on 5 October 2000.  In it Mr Dobson recorded Mr Anderson saying this:
“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.”

11	Mr Anderson was called to give evidence before the Tribunal.  He prepared, but did not sign a Witness Statement in advance of the hearing.  Paragraph 4 of that statement read:
“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.”

12	There is a slight difference of recollection between Counsel before us, both of whom appeared below.  Both agree that in giving evidence Mr Anderson withdrew paragraph 4 of his Witness Statement.  Ms Thomas thought he did so during examination-in-chief; Mr Evans that he did so in cross-examination.  The Chairman’s Notes of Evidence do not record that alteration in Mr Anderson’s evidence.  What is not clear to us is why he changed his account.  

13	Surgery, in the form of a quadruple heart by-pass operation, was performed on 11 October 2000;  the Applicant having been notified of that date on 6 October.  He told the Tribunal that he then commenced a course of cardiac rehabilitation which finished on 12 February 2001.  At the time of the Tribunal hearing his GP had not declared him fit to return to work.  

14	In the light of that evidence and the Tribunal’s findings of fact to which we have earlier referred, it is apparent that at the date of dismissal, 14 July 2000, the Respondent’s understanding, as was the fact, was that the Applicant was unfit for any work pending his operation.  Thus no adjustments in the form of light duties were suitable for him or practicable.  The Tribunal had regard to paragraph 6-21 of the Code of Practice (Reasons paragraph 11) which states:
“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.”

15	The Tribunal found, as they were plainly entitled to do on the evidence, that:
“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.”

16	In these circumstances they found that the Respondent had justified the prima facie discrimination under section 5(1)(a) DDA and under section 5(2)(a) if any reasonable adjustment in the form of alternative employment could be found after the Applicant’s operation, none being possible before it.  (Reasons paragraph 11).

17	It follows that the Applicant’s challenge to the Tribunal’s findings on both parts of his disability claim fails on the facts.  However, we should also, for completeness, deal with Ms Thomas’ submissions on the law.  

18	First, we cannot accept the proposition that a Respondent must always obtain up-to-date specialist medical evidence.  Each case depends on its own facts.  Plainly, in the case where there is a dispute as to the medical position such evidence may be necessary.  The Tribunal must consider the nature and extent of an Applicant’s disability and then consider its impact in terms of his ability to carry out his normal work or adjusted work.  See Edwards -v- Mid Suffolk District Council [2001] IRLR 190, paragraph 42 (per Judge Levy QC).  However in the present case the facts were clear from the GP’s report to Ms Li dated 26 April 2000, itself in part based on a report to the GP by a Consultant Cardiologist, Dr Joseph, dated 24 January 2000.  The Applicant had heart disease requiring surgery which would probably result in his being on sick leave for a considerable period of time.  No operation date had been notified by the time of the 14 July meeting.  The Applicant and his partner were making it clear to the Respondent that he was not fit for work.  What further medical evidence was necessary?  

19	Secondly, it is correct that in Jones (paragraph 27) Pill LJ refers to a:
 “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.

20	In the present case, unlike Jones, no evidence was called by or on behalf of the Applicant to challenge the Respondent’s assessment, based on the medical opinion by the Applicant’s own GP, that he was unfit for any work, even if light work was available (which the Tribunal permissibly found was not) prior to the Applicant’s as yet unscheduled surgery.  On the contrary, save for the curious withdrawal of evidence to be given by Mr Anderson, it was common ground that the Applicant had been advised that he could do no work at all prior to surgery.  

21	It follows that this case was quite unlike, for example, the facts in Fu.  There, the shortcomings in the Tribunal’s Decision were encapsulated by Judge Altman at paragraph 23.  Asked what was the matter with the Applicant and what particular disabilities did she have, no one was able to answer that question.  Had a similar question been posed in the present case the answer would be clear and unanimous.  The Applicant cannot do any work because of his heart condition prior to surgery.  No adjustments, in the form of alternative work, were practicable.  

22	Similarly, in Cosgrove.  There, the EAT found that there had been a failure on the part of the Respondent to make reasonable adjustments under section 6 DDA where no thought had been given to the matter by the Respondent in the case of a secretary, off work for one year with depression.  However, in giving the judgment of the EAT Lindsay P said, at paragraph 7:
“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.

23	It follows that we reject the appeal against the Tribunal’s findings on disability discrimination.

Unfair dismissal
24	Whilst springing from the same factual matrix as the disability claim, the complaint of unfair dismissal raises different issues in law.  

25	It is common ground that the Respondent’s reason for dismissal related to a potentially fair reason, ill-health capability.  As for the question of reasonableness under section 98(4), bearing in mind the guidance given by Phillips P in Daubney, Ms Thomas submits:

(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.  

26	It was further contended in the Notice of Appeal (paragraph 7.6) that the Tribunal had failed to take into account the fact that Mr Parish accepted in evidence the Applicant’s length of service and sick record had not been considered by the Respondent in deciding to dismiss the Applicant.  That misstates the Chairman’s Notes of Mr Parish’s evidence, itself not challenged by the Applicant in accordance with the long-standing EAT practice formulated by Cumming-Bruce J in Dexine Rubber Co Ltd -v- Alker [1977] ICR 434, 438G - 439C, where he is recorded as saying:
“I do not know if his record of 22 years considered”

27	Finally, Ms Thomas has referred us to the two different procedures adduced by the Respondent in evidence dealing with absence from work.  The Tribunal did not think that that part of the evidence assisted them (Reasons paragraph 8 (viii) ).  Having heard Ms Thomas on this aspect, neither do we.   
Conclusion
28	The Applicant lost his case on the facts.  No error of law on the part of the Tribunal has been made out.  The appeal fails and is dismissed.