Appeal No.	 EAT/150/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 October 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR P DAWSON OBE
MR A E R MANNERS

MR P ALLEN	APPELLANT

H HARGRAVE & CO	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR DAMIAN BROWN
(of Counsel)
	
For the Respondents	MR ANDREW D TWINEHAM
Solicitor
Instructed by
Messrs Jacksons
Solicitors
Innovation House
Yarm Road
Stockton-on-Tees 
TS18 3TN

	MR JUSTICE LINDSAY (PRESIDENT):	We have before us the Full Hearing of the appeal by Mr P Allen in the matter Allen v H Hargrave & Co.  There was a hearing on 5 November 1998 before the Employment Tribunal at Middlesbrough and Extended Reasons were promulgated on 2 December 1998.  A Notice of Appeal was received on 14 January 1999 and, after the Preliminary Hearing at the Employment Appeal Tribunal, there was an amended Notice of Appeal with amended grounds of appeal and they were received on 22 June 1999.  

1	Mr Allen had been employed as a butcher at the Respondent’s abattoir from June 1994 to 30 January 1998.  It was held by the Employment Tribunal to be a rather physical job requiring speed and dexterity.  Pig carcasses on a moving belt had passed in front of Mr Allen and it was his task to cut out certain bones as the pig passed.  As many as 3,000 pigs could be dealt with in any one shift.  He began to suffer from tenosynovitis.  It seriously affected his ability to work with his right hand.  He went off work and he became unfit to carry out his job.  

2	After various steps to which we shall refer in more detail when dealing with the arguments which we have heard, he was dismissed on the grounds of medical incapacity.  He was given three weeks notice on 6 January 1998, it thus expiring on 27 January 1998.  On 21 April 1998 his IT1 was received by the Employment Tribunal and it claimed unfair dismissal and also unlawful discrimination on the ground of disability.  The Employment Tribunal’s decision was this:

“The unanimous decision of the Tribunal is that the complaint of unfair dismissal succeeds but no award is made.  The complaint of unlawful discrimination on the grounds of disability fails and is dismissed.”

3	The appeal, also like that award, is divided into two parts; disability discrimination and unfair dismissal.  Turning first to disability discrimination, two first questions arise under the Act.  Was there less favourable treatment within section 5(1)(a) of the 1995 Act, and if so, was it justified?  The question of whether treatment is “less favourable” is not to be left as an open comparative.  One has to say “less favourable” that that meted out, or as would be meted out, to whom?  As to that, one now has to refer to Clark v Novacold Limited [1999] IRLR 318 Court of Appeal, reported in the IRLR only on 5 May 1999.  The Employment Tribunal’s decision was 5 November 1998.  Thus they can hardly be criticised for not having in mind the Court of Appeal’s decision.  They expressly referred to the earlier decision in the Employment Appeal Tribunal, in Clark v Novacold Limited which decision has since been partly set aside by the Court of Appeal.  

4	The Employment Tribunal described, as its view of the proper comparator, this:

“The proper comparator is a person without any disability who had been off work for a similar length of time.  The evidence from the Respondent which was not disputed was that an absence of three months would normally result in dismissal.  The Applicant had been away for about 3½ months at the time when it was decided to dismiss.  The Applicant therefore fails under Section 5(1) of the Act.”

That view was not inconsistent with the law as it was understood to be on 5 November 1998.  But the Court of Appeal’s reasoning in Clark v Novacold requires one not to strive to find some such comparator but, instead, the Tribunal is to ask firstly (at any rate where the case is one of dismissal, as the case was here) for what reason was the complainant dismissed?  Here, the answer to that question was not “because he is disabled” but “because he is now incapable of doing his job”.  

5	Next, working through the statutory machinery, one has to ask, would the treatment, namely here the dismissal, have been meted out to someone “to whom that reason does not apply”, in other words, to someone capable of doing his job.  The comparator is thus someone capable of doing his job.  There can, of course, very well be, especially in redundancy or misconduct cases, instances where, although a man is well capable of doing his job, he is nonetheless properly dismissed.  But there is no evidence that this was such a case.  Mr Allen was held to have been dismissed on capability grounds.  

6	Next, if a disability claim is to go yet further, the question has to be asked, is his incapability related to his disability?  Here, that cannot be doubted.  The Tribunal held as follows:

“The Applicant began to suffer from tenosynovitis.  It seriously affected his ability to work with his right hand and might well have been in the nature of a repetitive strain injury.”

A little later they say this:

“Mr Hunt [he was an officer of the employer] invited the Applicant to another meeting which was held on 31 December 1997 and was told that his wrist was getting worse and that the trouble was spreading to his elbow.  He said that he only had about 50% strength in his arm and he had been officially assessed as 14% disabled.  He expressed his view at the time that he would not be able to do anything in the factory and he was told that he would have to be released on medical grounds.”

Another slightly earlier reference was this:

“Eventually the applicant responded to another invitation and met Mr Baker [that was the factory manager] on 20 November 1997 at his place of work.  At that meeting the applicant made it clear that he could not do his own job and doubted whether he would ever be able to do it again.  He was at that time waiting for details of an operation and there was talk about his being able to do lighter work.”

And then there is a longer quotation from paragraph 3 and into paragraph 4 of the decision and that is this:

“There is no doubt that the applicant was unable to do the job for which he was employed.  It was suggested that he might have been capable of washing trays or lining boxes with plastic material or acting as the janitor who cleans lavatories and keeps the common areas clean.  There were no vacancies as far as those jobs were concerned and to take on the applicant would have required the dismissal of someone else.  The Tribunal accepts that the different functions in the abattoir were all of a heavy physical nature and were carried out at a considerable speed under great pressure.  The applicant was not in a fit state to safely use a knife and the tray washing machine was not a self propelled machine but required fairly heavy pushing to put the trays into the washer.  This large machine was placed in a position where it was most convenient to operate it with the right hand.  To move it to another place would have made it impossible for people with fit right hands to work it.  They would have had to use their left hand if it was aligned so that the applicant could use his left hand.
In the circumstances, the Tribunal finds that it was inevitable that the applicant would lose his employment because of the unhappy deterioration in the condition of his right wrist and arm …”

And they then went on to another point which we will come back to.  Given those citations - and indeed, there was no suggestion to the contrary - the incapability was manifestly related to Mr Allen’s disability. 

7	The Employment Tribunal held that Mr Allen had failed to satisfy Section 5(1)(a). Had they had the benefit of the Court of Appeal’s judgment in Clark v Novacold they would no doubt have held otherwise.  But, whether or not they would have held otherwise, we hold, that in the light of that later law their conclusion that Mr Allen failed under section 5(1)(a) cannot stand.  On the facts found by the Employment Tribunal, Mr Allen was treated less favourably by his employer within the meaning of Section 5(1)(a).  It is conceded that he was a disabled person and we regard Section 5(1)(a) as thus satisfied.  The Employment Tribunal, through no fault of its own in the light of the law as it was then understood, erred in law on this point.  

8	The next question for the Employment Tribunal should thus have been whether that less favourable treatment - whether that discrimination - was “justified” within the meaning of Section 5(1)(b) of the 1995 Act.  The onus is on the employer to show such justification.  If he is able to show such justification then there is no actionable discrimination under Section 5(1).  So far as concerns justification, the Tribunal, as was appropriate given their view that Section 5(1)(a) was failed, never itself turned to consider justification within Section 5(1)(b).  It would thus be open to us to hold that, as there had been no consideration of Section 5(1)(b) justification, the matter ought necessarily to be remitted to the Employment Tribunal.  However, the Tribunal did in terms consider that the employer was under a duty under Section 6, namely, “to take such steps as it is reasonable in all the circumstances of the case for him to have to take in order to prevent the arrangements or feature having” the effect of placing the disabled person at the substantial disadvantage which Section 6(1) describes.  

9	The Tribunal, as we say, recognised that there was a Section 6 duty on the employer.  They say:

“The employer has [and one might fairly underline ‘has’] to deal with Section 5(2) and Section 6 of the Act which places a duty upon the respondent to make adjustments to any arrangements or physical feature of the workplace which helps the disabled person to up substantial disadvantage.”

Something has obviously gone wrong there in that citation, but the sense is clear enough.  They recognised that the employer has to deal with Section 6.  That citation also includes a reference to Section 5(2) of the Act, which it would be as well to read.

“5(2) For the purposes of this Part, an employer also discriminates against a disabled person if -
a)  he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
b)  he cannot show that his failure to comply with that duty is justified.”

10	In that way, although the Tribunal did not in terms address Section 5(1)(b) justification, they did inquire into justification and, indeed, it is the case that they used the word ‘justified’ in their paragraph 6.  As for justification, and looking at their decision as a whole, there are a number of features which come to our attention.  After 8 September 1997 Mr Allen was held to have been never again fit to carry out his own job.  It was Mr Allen’s own view, after he had seen his own Doctor and Specialist, that he would not be able to do anything in the factory.  Mr Allen was held not be able safely to use a knife, which one might think is a vital tool in an abattoir.  The abattoir work was held to be of a heavy physical nature, carried out at speed and under pressure.  There was held by the Tribunal to be an inherent danger involved in employing a persons with Mr Allen’s disability in, presumably, the abattoir itself.  We have made mention already to the quotation from the Tribunal’s decision about tray washing.  It was an alternative job canvassed as being possible for Mr Allen to do but it required heavy pushing and to have moved the machine so that he could do it with his left hand would have made it impossible for those with fit right hands to work the machine; that was the holding of the Tribunal.  The Tribunal held there were no vacancies in any event in tray washing or in cleaning so that to transfer Mr Allen to such other alternative jobs as could be canvassed would have meant dismissing someone else.  It was held there was no suitable alternative job in the factory that could have been done by him and it was held that he did not wish to work shorter hours.  No other adjustment was suggested by him or his representative and that it was not practicable for the employer to dismiss another in order to try out Mr Allen in that person’s place, particularly as it was clear that his condition was worsening,.  So said the Tribunal and presumably they had it in mind that if he was switched to some new job, that switch might only be temporary in the sense that he himself might not be able to do even the alternative job if his condition was continuing to worsen.  

11	Given such findings of fact, we look next at the relevant code of practice. As Clark v Novacold emphasises, Section 53(6) of the Act is relevant.  That says:

“If any provision of a code appears to a Tribunal or Court to be relevant to any question relevant arising in any proceedings under this Act, it shall be taken into account in determining that question.”

12	We then go onto paragraph 6.2(1) of the Code which was also the process that was used in Clark v Novacold in the Court of Appeal.  6.2(1) has the heading ‘Termination of Employment’.  We will not read the whole of that heading but it makes provision for matters that need to be taken into account when termination on disability grounds is in issue. 

13	Although, for the reasons which we have given, the Employment Tribunal never turned to consider Section 5(1)(b) justification as such, it is in our view impossible to see how, had they applied the Act and the Code to their findings of fact, they could have concluded other than that, firstly, the Employer had shown that its treatment of Mr Allen was justified within Section 5(1)(b) and, secondly, that there was no breach of the Section 6 duty (or at any rate, none that was not justified) and hence that Section 5(5) was thus disapplied.  Next, they could have concluded only that the reason for Mr Allen’s dismissal was material to the circumstances of the particular case in that the reasons that were ventilated related to Mr Allen; they related to the demands of his job, to the machinery with which he was surrounded, to the non-availability of other jobs from his employer and generally to his physical state.  Lastly, they could have concluded only that the reason for the dismissal was substantial; it was not, for example, that he might occasionally not be able to perform some infrequent requirement of this job but that he was, in terms, held to be unable to do the job for which he was employed.  In those circumstances, to remit the matter to the Tribunal specifically to consider Section 5(1)(b) Justification as such would in our view be to tantalise Mr Allen with a prospect of possible success that did not truly exist.  

14	Mr Damian Brown, for Mr Allen, draws attention to the fact that the statutory terms and the actual statutory provisions are not set out in the decision; that the word ‘justification’ is not in terms mentioned; that the words ‘material’ and ‘substantial’ were not quoted in the decision and that there is no indication that the employer called-in any expert in the field of justification or adjustments in disability cases.  We regard that criticism as altogether too formalistic.  One cannot assume that the Tribunal did not have Sections in mind simply because they did not set them out verbatim.  In fact, Section 5(1), 5(2) and Section 6 were all mentioned although their actual terms were not cited.  The Code, we are told (and this is not disputed) was cited to the Employment Tribunal.  We cannot assume that it was not in the Tribunal’s mind, nor can it be an inescapable obligation on the employer in every case to consult some expert.  Here, on the medical side, the case was not one of some employee who had as yet taken no advice on the medical side of things.  Mr Allen was held as at September 1997 to be visiting his own Doctor and was already being seen by a specialist.  When he later reported to the employer, after seeing the specialist, he was, no doubt, reporting the medical condition as it had already been disclosed to him by his own medical advisers.  Nor is there any suggestion that on the facts of this case some other medical view could have differed from the one that Mr Allen had obtained from his own specialist.  In fact, the Tribunal, on the evidence, held that Mr Allen’s condition was worsening.  

15	What is appropriate by way of steps to be taken must take its colour from all surrounding circumstances.  We are unable to detect any error of law in the Tribunal’s consideration of Justification, although, of course, we accept they were looking at 5(1)(b), rather than Section 6.  However there is plainly an area common to both and, as we have mentioned, we cannot see, on the facts as found, how, having held as they did for Section 6 reasons, they could have held other than as we have indicated had they turned their minds to Section 5(1)(b).  

16	Mr Brown raises other points.  The grounds of appeal urge that the Tribunal failed to make any real inquiry into what steps the employer might have taken to prevent Mr Allen being placed at as a substantial disadvantage, as required by Section 6(1), and, in particular, he urges that they failed to look into the steps listed in Section 6(3), which he asserted was a list failure to work through which represented error.  Section 6(3), he points out, was not mentioned as such by the Employment Tribunal.  In our view that is to misunderstand the purposes of Section 6(3).  It is a list of examples of steps which may be taken.  The opening words are:

“The following are examples which an employer may have to take in relation to a disabled person in order to comply with subsection 1.”

17	It is not a check list failure to work through which is inescapably to lead to a finding that the Section 6 duty has not been complied with.  To give an extreme example which I mentioned in the course of the hearing, if a man has lost a leg, one does not necessarily have to enquire whether he has been provided with an interpreter under Section 6(3)(k).  What are reasonable steps, or what would have been reasonable steps in a particular case, depends on a host of surrounding circumstances, but there is no reason to take the Act to require that consideration must include that of steps which are only theoretical or fanciful.  Nor can the Tribunal be fairly criticised for not considering whether the employer should have taken particular steps which were never canvassed before the Tribunal as steps which should have been taken The Employment Tribunal cannot be expected to be expert in every trade and in every business.  Some steps will be so obvious to be taken that their omission could be seen to be remarkable by almost anyone who looks fairly at the facts but there are other omissions which require specifically to be canvassed because only those with a knowledge of the particular trade or business would see them as being potentially required to be taken.  The only example in the amended grounds of appeal of a step which was not considered but which should have been was that of an adjustment of the tray washing machine.  But, in fact, the Tribunal held, there was no vacancy for a tray washing job: that making Mr Allen into a tray washer would have meant dismissing someone else; that the tray washing machine required heavy pushing to push the tray into the washer, and in any event, the matter was further considered by the Tribunal because, as we have already cited they said:

“This large machine was placed in a position where it was most convenient to operate with the right hand.  To move it to another place would have made it impossible for people with fit right hands to work it. They would have had to use their left hand if it was aligned so that the applicant could use his left hand.”

18	There is nothing in the material before us to suggest that some other form of adjustment to that machine was possible or was canvassed before the Employment Tribunal as having been overlooked by the employer.  We found no error of law in this area.

19	We turn briefly to another aspect of the amended grounds of appeal; it was not amplified orally but nor was it either specifically abandoned, so it might be wise to touch upon it.  It says this:

“The Tribunal failed to heed the requirement under Section 5(5) for Deemed Compliance by the Respondent with a Section 6 ‘reasonable steps duty’ before assessing the justification for the dismissal.”

That brings Section 5(5) into play.  That says:

“If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty.”

20	If the employer is justified in failing to comply with the section 6 duty cast upon him or if the section 6 duty is not breached, then section 5 subsection (5) is disapplied.  Whether the employer had satisfied the section 6 duty cast upon him was considered by the Tribunal.  The latter part of the Tribunal’s paragraph 5 and the last sentence of its paragraph 6 was directed to that in the light of the findings which they had made, most of which we have already cited.  The only fair reading of the Tribunal’s decision as a whole leads to a conclusion, in our view, that they took the section 6 duty here to have been satisfied, and, on that basis, section 5 subsection (5) did not come into play.

21	Another ground relied upon, on Mr Allen’s behalf, as to disability discrimination is this:

“The Tribunal then dealt with reasonable adjustments.  The duty is imposed on the employer.  Therefore to address it in terms of what the Appellant raised, as the Tribunal did at paragraph 5, is an error of law as it shifts the burden.”

That is a reference to this passage of paragraph 5 of the Tribunal’s decision:

“The employer has to deal with Section 5(2) and Section 6 of the Act which places a duty upon the Respondent to make adjustments to any arrangements or physical feature of the workplace which helps the disabled person to up substantial disadvantage.  The Applicant did not wish shorter hours nor were any other adjustments suggested by him or his representative save that it was said he would be able to do the jobs of others who lined the boxes or washed trays or cleaned the premises.”

22	One of the components in any determination of what adjustments are, in any particular circumstances, reasonable is very often likely to include what the disabled person himself, or his advisers and representatives suggest.  We do not read the reference we have just cited as representing a shifting of the burden of proof, but simply a recollection of what Mr Allen had himself said.  The Tribunal had earlier said (our emphasis):

“The employer has to deal with Section 5(2) and Section 6 of the Act which places a duty upon the Respondent…”

23	The Employment Tribunal thus fully had in mind that the duty was on the employer.  If the Tribunal had said that all an employer needs to consider, by way of adjustment, is whatever the employee suggests, then that, of course, would have been an error of law, but the Tribunal does not say that.  Mr Brown says that for the Tribunal to turn immediately after the mentioning the duty to what the employee had suggested was, as he put it, “suspiciously like a reversal of the burden of proof”.  Leaving aside whether suspicion is enough, the Employment Tribunal in terms states that the duty was on the employer and we have no good reason to think they did not remain of that view.  

24	Leaving aside one last point, we think we have now considered all the arguments as they relate to disability discrimination, but, before leaving this area, we ought to touch briefly, because Mr Brown spoke of it, upon injury to feelings.  If we are right in concluding that no disability discrimination was proper to be held then there can, of course, be no award for injury to feelings.  But we draw attention to the further fact that there is no hint of evidence having been given of such injury.  Mr Brown seeking to explain that, says that it is not uncommon for decisions as to liability and quantum to be separated but there is here no hint of their being separated in this case at the hearing before the Tribunal.  Indeed, the finding that Mr Allen was not in receipt of money at the time of dismissal and that therefore there should be no award for unfair dismissal suggests that quantum was being considered as well as liability, in which case there is an additional reason for no award to injury to feelings, namely that the matter was not substantiated in evidence. 

25	We have detected no error of law, save that which we have mentioned, in relation to disability discrimination and, for the reason we have given, that error does not in our judgment lead to an overturning of the Tribunal’s conclusion on disability discrimination.  We therefore turn to unfair dismissal.  One has to remember what the Tribunal had said about that at the start.  

“The unanimous decision of the Tribunal is that the complaint of unfair dismissal succeeds but no award is made.”

26	They held:

“Although there is a procedure for disciplinary matters the respondent does not apply that procedure to dismissal for capability.  The letter of dismissal did not mention an appeal nor did it mention use of the existing grievance procedure.  The meetings that have been mentioned were of an informal nature but there was no suggestion that the applicant could have a colleague or union representative with him and formal notes of what was said were not made.  The respondent did not ask for its own medical reports although the applicant would have happily agreed to that procedure.”

Also, going on from the quotation that we began earlier:

“In the circumstances, the Tribunal finds that it was inevitable that the applicant would lose his employment because of the unhappy deterioration in the condition of his right wrist and arm but that the procedures of the respondent company in this particular case were not ideal.  There should have been some way in which the applicant could query the decision to end his employment and for him to have someone else to help him, either a colleague or a union representative, in putting forward his argument that he could do other small jobs, at least, for the time being.  It would also have been more satisfactory had the respondent obtained its own medical report although it was accepting the applicant’s own description of his difficulties because it had experience of repetitive strain injury in other operatives.  The Tribunal finds the dismissal technically unfair but that the dismissal would have taken place in any case and that there were no suitable alternative jobs in the factory that could have been done by the applicant.  In those circumstances there is no award.  The applicant was not in receipt of money from the respondent at the time of his dismissal.”

27	One needs to consider the possibility of a basic and a compensatory award.  So far as concerns the basic award, although, by Mr Twineham, the employer has made no formal concession on the subject, our impression is that the employer does not oppose Mr Allen’s case that there should have been a basic award to Mr Allen under Section 119 of the Employment Rights Act 1996.  We see no argument that is sufficient to counter that there should have been an award of the basic kind.  So far as concerns the compensatory award, let it be supposed that the employer had worked its way through a fair and adequate full consultation procedure.  The Employment Tribunal held that at the end of it Mr Allen would inevitably have been dismissed.  As there seems to be no error of law in that conclusion, it seems to be an inevitable conclusion on the facts which they had found.  

28	They do not in terms say how long that full process would have taken.  This was not some small employer.  430 people were employed at the factory alone.  One could reasonably expect a company of such a size to have a full and stated disciplinary or dismissal procedure.  But the problem as to Mr Allen’s incapacity was not new.  He was off work in June 1997, from 18 June to 4 July 1997.  He then ceased work again on 8 September 1997.  He was already visiting his Doctor and was being seen by a specialist.  The company wrote to him on two occasions, although, through no fault of Mr Allen’s, that was to no effect.  He met his Factory Manager on 20 November.  He made it clear that he could not do his own job.  The Factory Manager reported the matter to the Personnel Manager.  There was another meeting on 31 December 1997.  The employer was then told that Mr Allen’s handicap or disability was getting worse.  Mr Allen himself said that he would not be able to do anything in the factory and on 6 January 1998 he was given three weeks notice.

29	We have already cited the Tribunal’s conclusion as to the unavailability of other employment for Mr Allen and the inability of the abattoir processes to be adjusted to suit him.  My colleagues sitting with me have more experience than I have of the time that is likely to be taken up working one’s way through fair procedures.  But, together, we cannot see, against the background we have described, that even a very comprehensive consultation and enquiry process begun say, at the first meeting on 20 November 1997, would not have finished in all respects, even having regard to the holiday season of Christmas 1997, by the end of January 1998.  Given the findings of the Tribunal, it would be fanciful to suppose the Employer’s disciplinary or investigatory process could have come to any conclusion but to dismiss.  In practical terms, Mr Allen would have been given three weeks notice on, say, 30 January 1998 to expire on 20 February 1998 instead of on 6 January 1998 to expire on 27 January 1998.  

30	The Tribunal held however that he was not in receipt of money from the employer at the time of his dismissal.  Whether he was in actual receipt does not seem to be the appropriate question.  The question should have been whether he was entitled at the time to receipt.  We are unsure that the computation under Section 123 of the Compensatory Award would necessarily have come out at zero if the Tribunal had had in mind a dismissal, after a fair consultation, on say, 20 February 1998.  We are not, it would seem, here concerned with very large sums.  It may be that Mr Allen should have been in receipt of a further, say, three and a half weeks sick pay and that the compensatory award should have reflected that.  But it would seem to us to be quite disproportionate directly to remit the matter to the Employment Tribunal simply to quantify the relatively small basic and relatively small compensatory award that might be appropriate.  

31	Accordingly, having discussed this aspect of matters with both parties, we say this.  That so far as the appeal concerns unfair dismissal, the holding of unfair dismissal stands, but we set aside the decision to make no award to Mr Allen.  We remit quantification of both the basic and the compensatory award to the same Tribunal as before but direct that that remission should take effect only if at the expiry of 28 days from their receipt of the typescript of this judgment, the parties still have failed to agree either or both of those figures.  That is the position so far as concerns unfair dismissal.  As for disability discrimination, the appeal is dismissed.