Appeal No.UKEAT/0228/05/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 July 2005

Before
THE HONOURABLE MR JUSTICE BEAN
MR J C SHRIGLEY
MR K BILGAN

MS O OBASA	APPELLANT

THE MAYOR AND BURGESSES OF THE LONDON BOROUGH	RESPONDENT
OF ISLINGTON

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

	APPEARANCES

For the Appellant	MISS CHAN
(Of Counsel)
(Appearing under the Employment Law Appeal Advice Scheme)	

SUMMARY

Contract of Employment and Disability Discrimination

Disability Discrimination – reasonable adjustments – whether a duty to carry out assessment before offering job on trial basis.

Interpretation of “return to work” policy.

THE HONOURABLE MR JUSTICE BEAN

1.	On this Preliminary Hearing of Ms Obasa’s Appeal we have been very greatly assisted by Miss Chan who appears today under the ELAAS scheme.  She has confined herself to two Grounds of Appeal and not pursued the others in Ms Obasa’s Notice of Appeal.  We consider that both of them should be allowed to go forward to a full hearing.  

2.	The first is that the Tribunal misconstrued the effect of Islington’s DAB policy set out in paragraphs 17, 18 and as to the Tribunal’s finding, 34 of the Decision.  The argument is that Ms Obasa was entitled by virtue of the DAB policy to apply for a similar post to her old post without being required to go through the normal competitive recruitment procedure with interviews and so forth.  In accordance with the usual policy of the Appeal Tribunal we hold that it is arguable and say no more than that.  

3.	The other Ground pursued by Miss Chan is one with which we have had more difficulty,  that concerns the Appellant’s application for the post of support worker at the Arlington Project.  Here the complaint is that although a job was offered it was on a six-week trial basis; and, Miss Chan argues, the Council did not make reasonable adjustments or carry out an assessment to consider reasonable adjustments to accommodate the Claimant’s disability, namely her Sickle Cell Anaemia which restricted her mobility.  Miss Chan referred us in this context to the decision of this Tribunal in Mid Staffordshire General Hospital NHS Trust v Cambridge [2003] IRLR 566.  

4.	We had considerable doubts about this Ground for two reasons.  Firstly, the evidence of Miss Gupta for the Counsel accepted by the Tribunal was that the advice of the Council’s Disability Adviser was that:

“the post should be offered on a six-week trial basis in order to assess what the Claimant could and could not do so that consideration could be given to adjustments that might be made to accommodate the Claimant’s disability. “

This is very far from the argument which Miss Chan put forward that employers may take on a new employee suffering from a disability and “set them up to fail”.

5.	Secondly, the Tribunal found as a fact that the Claimant was indeed offered the six-week trial period at the Arlington Project but turned it down because she was not content with the salary.  If the Tribunal had found that the job had been rejected because of the failure to make reasonable adjustments or because of the reference to a six-week trial period that might have been very different.  

6.	However, having said all that and since we are letting the Appeal go to a full hearing on the point about the DAB policy we have concluded after some hesitation that we should allow this point to be raised as well.

7.	As to the other Grounds in the Notice of Appeal, Miss Chan prudently did not pursue them and we dismiss them.  We will only add that the allegations of bias against the Chair of the Tribunal were, so far as we can see, without any foundation whatever and should never have been made.  But that is now past history.  

8.	We turn to Directions.  Subject to any submissions by Miss Chan the Appeal will be set down for a full hearing with a time estimate of one day, category C before a Judge and two members and the usual orders made for a Respondent’s answer, and for a party seeking reference to the evidence before the Tribunal to take certain steps, for applications to adduce fresh evidence, and for bundles, chronology and a skeleton.  

9.	As to the documents to be placed before the Appeal Tribunal at the full hearing it would be helpful we think if a complete copy of the DAB policy were made available, and if any letter written by the Appellant with regard to the Arlington Project support worker post, (provided it was before the Tribunal), were included in the bundle.