Appeal No.	 EAT/212/99/ME

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 October 1999

Before
HIS HONOUR JUDGE ALTMAN
MR J A SCOULLER
MR N D WILLIS

MISS H R PORTER	APPELLANT

LONDON BOROUGH OF CAMDEN	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr Giffin
(of Counsel)
(ELAAS)	

JUDGE ALTMAN:
1	This is an appeal from the decision of the Employment Tribunal given at London (North) following a hearing over four days in November 1998.  It comes before us by way of Preliminary Hearing to determine if there is an arguable point of law to merit consideration in full by the Employment Appeal Tribunal.  

2	We are enormously indebted to Mr Giffin who has presented the case on behalf of the Appellant, under the ELAAS pro bono scheme in the way which is traditional now for that scheme, and he has spoken in support of an amended Notice of Appeal containing four grounds.  

3	The Respondent’s oppose the granting of leave to amend the Notice of Appeal in accordance with the Notice.  This case is going to go forward on two grounds to a full hearing.  But in the face of the objection to the amendment to the Notice of Appeal, it seemed to us that the most efficient way to deal with the matter, bearing in mind the absence of any representations by the Respondents, we should direct that before embarking upon the substance of the appeal hearing the Employment Appeal Tribunal should on that occasion, first consider whether to admit the amended Notice of Appeal in any event.

4	The Appellant raises matters of disability and racial discrimination.  So far as this appeal hearing is concerned they are confined to the conduct of the Respondents in relation to the Appellants transfer to the Highgate and Hampstead offices of the Respondent.  There were a number of other matters dealt with before the Employment Tribunal, which we do not need to reiterate specifically.  But in their decision, the Employment Tribunal found that the Appellant is a woman of African-Ethnic origin, who was employed with the Respondents as an Estate Officer. And they found that she was a disabled person within the meaning of the Act on account of acute myopia with which we are not concerned and they found that she further suffered from rheumatoid arthritis and they found that from time to time in their words: 

“it seriously affected her mobility”

5	They then went on to find that she had only advised “the occupational health unit in confidence” that she suffered from arthritis.  While she had begun to use a walking stick in 1996 her arthritis was not sufficiently serious prior to April 1997 to prevent her from carrying out her full duties including meetings with tenants and carrying out estate visits.  It appears that there were some incidents at the Gospel Oak Office where the Appellant was previously working.  As a result of those and following an absence from work, the Appellant expressed a wish to not return to that office, and that wish was supported by the Occupational Health Officer.  

6	The Employment Tribunal then found, in Paragraph 7, that the Respondent “subsequently found work for the Appellant at …. Highgate and … Hampstead”.  The Appellant objected to both those, there was no lift at Highgate and she felt there would be evacuation difficulties in case of emergency at Hampstead.   The Employment Tribunal found that the Respondents did not agree so far as the Hampstead office was concerned.  The Appellant went to the Highgate office for 3 days and was then transferred to the Hampstead office for just under 3 months.  She was then moved to another location where she was still employed at the time of the decision by the Employment Tribunal.  In their decision the Employment Tribunal point out the way in which the respondents approached their responsibilities, seeking to bring the Appellant within the Respondent’s disability policies and the Disability Discrimination Act.  They described Ms Spooner, who was concerned as a Manager, as sympathetic.  There were findings which we do not need to refer to specifically about requests for absence for medical appointments and the like which was another area from which the Appellant does not seek to appeal the findings of the Employment Tribunal.  In their decision, the Employment Tribunal set out the legal elements and then turned in Paragraphs 14 & 15 to make their findings in relation to disability discrimination.  As to disability discrimination, the Employment Tribunal dealt with the extent to which the question of funding injunctive proceedings was related to disability discrimination.  So far as the transfer of offices is concerned, they made this finding 

“In relation for the transfer to Highgate the offices of the Respondent were not at that time aware that the applicant’s arthritis was sufficiently serious so as to amount to a disability within the meaning of the act”.  

7	They then went on to deal with medical appointments about which they found 
“at no time was the Appellant able to refer to any specific appointments she was prevented from attending although she hinted that difficulties may have been placed in her way.  There was a conflict of evidence between the Appellant and Ms Spooner and we preferred the evidence of Ms Spooner.  Faced with difficult management issue Ms Spooner was calm and sympathetic and appeared to us to be a person seeking solutions rather than placing obstacles in the way of the [Appellant].  We have set out above the relevant examples of steps which are given in the Act which an employer may have to take in relation to a disabled person in order to comply with the duties placed upon him.  In relation to these examples we find the Respondent responded appropriately to the situation and at all times did what it could to assist.”

8	It is argued that the Employment Tribunal in reaching the decision they did in relation to Highgate took a perverse view of the evidence in coming to the conclusion that the officers of the Respondents were not aware of the extent of the Appellant’s arthritis at that time, within the requirements of the Act.  

9	In support of that a number of matters have been referred to.  In the bundle of documents that were before the Tribunal which we have seen there were records of the Occupational Health Department but that seems to us irrelevant because of their confidentiality which is acknowledged.  Page 6 of the Bundle is a letter to a Sandie Dunne, in which the Appellant states that she attends the Royal Free Hospital for Rheumatology and also a letter in which sickness absence relating clearly to Rheumatoid arthritis is referred to.  However there were no absences from March 1997 recorded on that document, which is dated August 1997, and the transfers were in 1998 and the Employment Tribunal expressly used the phrase “at that time”.  The reference is also made to the fact that the Appellant used a walking stick and indeed I have referred to the fact that the Employment Tribunal made findings about the use of a walking stick and indeed made observations about it’s use.  It is also suggested that the Appellant could not have been off work with rheumatoid arthritis anyway because for a period of time during the gap to which I refer, she was away for other reasons in any event.  

10	These are matters of degree and response to evidence and it seems to us patently clear that these matters of evidence which were before the Employment Tribunal must have been evaluated by them in the finding that they made.  We cannot find any argument in law that their conclusions in relation to ground one of the Appeal as to the state of knowledge of the Respondent’s at the time referred to was such as to lead to any argument in law that they made a finding of fact which no Tribunal properly directing itself on the evidence or the law could have reached and accordingly we find that there is no arguable point of law on ground one.  

11	However ground two goes on to consider Section 6(6) of the Disability Discrimination Act 1995 in which it is contended that the Employment Tribunal failed to consider whether the Respondent would reasonably have been expected to know of the Appellant’s disability.  The extent to which that applies in this case was clearly a live issue on the evidence that we have seen, and the notes that have been written by the Appellant herself, and it is perfectly true on the face of the decision that there is no express finding in relation to that.  Accordingly it seems to us that this matter should proceed on the grounds expressed in ground two of the Notice of Appeal. 

12	So far as Ground 3 is concerned that is essentially the mirror image in law, although the facts applicable are different, in relation to the Hampstead move of the Appellant.  It seems to us that the exactly the same arguments apply to those which we have outlined in relation to Highgate.  Accordingly we give leave for ground 3 to proceed to a full hearing in so far as it is confined to the allegation that the Employment Tribunal failed to consider whether the Respondents could have reasonably been expected to know of the Appellant’s disability in relation to the transfer to Hampstead.  It seems to us that, as to their knowledge, whilst they do not refer to it expressly in their decision, the generality of their findings was clearly directed to the transfers in any event.  

13	In ground 4 it is alleged that the Employment Tribunal erred in failing to make any finding on the issue of whether the transfers to Highgate and Hampstead were acts of racial discrimination.  The employment tribunal dealt with the allegations of race discrimination in Paragraph 15.  They pointed out that the Appellant was born in West Africa and Ms Spooner, who dealt with her in the main throughout this matter, was born in the UK but of black Jamacian parents.  They found a good working relationship between the 2 people.  They found there was no evidence to support the general allegation that Ms Spooner did not like Africans and they said this “her complaints were limited to her requirement for an injunction where the comparator Ms Aitken was white and the issue as to time off for medical appointments”.  They then dealt with that.  They  said there were good other reasons why injunctive proceedings should not proceed and they found Ms Spooner dealt with that matter in a conscientious manner which was in no way motivated by the considerations of race.  They then made the following findings “as subsequently transpired the application for 36 days per annum to be taken as leave was out of all proportion to any actual requirement that there might have been.  We consider that in relation to this complaint as well as the previous complaints that the applicant has failed to prove her case on the balance of probabilities.  The applications are dismissed”.

14	We have considered the argument that there was no finding on the issue of whether the transfers themselves were acts of race discrimination.  It is true that the Employment Tribunal did not spell it out in terms.  They did make reference to previous complaints.  We bear in mind the approach of the Tribunal to the allegations of race discrimination, and their clear findings that right at the root of the complaint there was no foundation for the allegations made.  It seems to us that it is pedantic to complain that they did not make a specific finding for it was inconceivable that had they spelled it out in terms they would have come to any other conclusion than that there was no race discrimination in connection with the transfers to Highgate and Hampstead.  It seems to us a technicality and does not give rise to an arguable point of law with any prospect of success if argued in full before the Employment Tribunal.  Accordingly we dismiss that ground as we do in relation to ground one at this stage. 

15	Accordingly the appeal will proceed as follows.  There should be an initial finding as to whether or not to give leave for the Appeal to proceed in accordance with the amended Notice of Appeal, but if that is successful the Appeal is confined to the amended ground 2, and the amended ground 3 in so far as it relates to section 6(6) of the Disability Discrimination Act 1995.  It should be listed for 1 day in category C and skeleton arguments should be submitted not less than 14 days before the hearing. 

16.	After giving this judgment I received a letter from the Appellant, enclosing her birth certificate which shows that the Appellant was in fact born in England.  It appears that the Employment Tribunal were in error in this respect and I take this opportunity to record this correction.  I have returned the certificate direct to the Appellant.  Her letter has been placed on the file at the Employment Appeal Tribunal.