Appeal No.	 EAT/461/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 June 1999

Before
HIS HONOUR JUDGE JOHN ALTMAN
MR A E R MANNERS
MR P M SMITH

LONDON BOROUGH OF HAMMERSMITH & FULHAM	APPELLANTS

CLARE FARNSWORTH	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	KAREN TICKNER
(of Counsel)
London Borough of Hammersmith & Fulham
Legal Services Division
Town Hall
King Street
Hammersmith  W6 9JU	

	JUDGE JOHN ALTMAN:	This is an appeal from the decision of the Employment Tribunal sitting at London North, over three days in December and January 1998 and 1999, in which the unanimous decision of the Tribunal was that the Respondent had been discriminated against by reason of her disability and the matter of compensation was adjourned.  

1	The First Appellants at the material time were the prospective or possible employers of the Respondent who applied for employment with them.  On 3 October 1997, the Respondent applied for a post of Residential Social Worker in an adolescence service unit.  She herself, as was known in considerable detail to the Tribunal but in less detail to the First Appellants at the relevant time, had an unfortunate history of mental illness.  Her last visit to a psychiatrist had been in June 1996 and accordingly, there had been a substantial period in which the Respondent had been perfectly fit, and in any event, over the years, she had clearly done a great deal to sideline her illness by pursuing her career and her education.  

2	In her Originating Application, the Respondent spoke of her illness as depression and she spoke of it in the past tense.  In paragraph 1 she said that she suffered from depression until January 1996 and spoke in the conclusion of her Originating Application to her past disability.  The Respondent was interviewed and the First Appellants took up references, which were referred to in the decision of the Employment Tribunal.  The First Appellants referred to their occupational health physician for a report and what was called “medical clearance”.  The Respondent attended Dr Cooper, the Second Appellant, who it was, who also consulted the Respondents general practitioner and hospital doctor and Dr Cooper then reported to the Appellants. 

3	The memorandum is quoted in the decision and concludes:

“In view of her medical history I am concerned that she may be liable to further recurrences in the future.  If such a recurrence were to occur her performance and attendance at work could be affected.”

As a result, the Appellant, through their Personnel Officer, Ms Findlay, wrote to the Respondent:

“Unfortunately, I have been unable to obtain satisfactory medical clearance and it is with regret that I am now withdrawing the provisional offer of appointment.”

4	The Employment Tribunal found that the Respondent had a disability within the meaning of the Act.  They then considered whether the Appellants had discriminated against her and they looked at the statutory provisions and the particular illness, from which the Respondent suffered, and came to the conclusion that the Respondent was suffering from a disability within the meaning of the Act.  

5	The first ground of appeal relates to their answering the next question, which they posed themselves in paragraph 20, when the Employment Tribunal said:

“We then considered whether both Respondents were aware of Ms Farnsworth’s disability.”

The ground of appeal is that the Tribunal erred in finding in effect, that the requisite knowledge was actual or constructive.  In paragraph 22 after reviewing the evidence, the Tribunal found:

“We find, as a fact on the evidence, that both Respondents either knew or should have known, upon making proper enquiries, of Ms Farnsworth’s disability.”

They dealt with the Respondents separately.  Dr Cooper they found had the medical history, and knew of the hospital treatments over the years, and found as a fact, in paragraph 20, that Dr Cooper was fully aware of the disability.  

6	They then went on to consider whether the First Respondent had that knowledge.  They found that they had accepted liability for the actions of Dr Cooper, and that Dr Cooper was acting as their agent.  They found that that alone should constitute knowledge.  They then went on to find that the report to them from Dr Cooper put them on notice of the Respondent’s suffering from an illness and they find that the Personnel Officer, Ms Findlay, should then have made further enquiries as to why attendance at work would be affected, that being the reason why the offer of employment was not confirmed.  

7	They then refer to the question of confidentiality and find that that does not excuse the first Respondent’s ignorance and they go on:

“In any event [the report from Dr Cooper to them] clearly refers to a possible medical problem.”

8	The two linked matters of law which, seem to us to be arguable flow from this.  First of all, in the case of O’Neill v Symm & Co Ltd (1998) IRLR 233, the Employment Appeal Tribunal found that knowledge of the disability, or at least the material features of it, is relevant in relation to causation.  How can one discriminate against someone because of disability if you do not know about it?  Is that actual knowledge, or constructive knowledge?  In this case, was the reality, so far as the Local Authority is concerned, that the Tribunal did actually find that they had actual knowledge, and were simply using a form of words, “either knew or should have known”, or, on the other hand, was the Employment Tribunal uncertain as to actual knowledge?  That seems to us arguable.

9	The second matter which appears to arise, is that when considering knowledge of disability and the reference in the O’Neill case to knowledge of at least the material features, to what extent were the facts before the Appellants at the relevant time?  Were there sufficient ingredients of the statutory definition of disability as to provide sufficient foundation for such knowledge?  That covers, essentially, ground 1(a) of the Notice of Appeal. 

10	Ground 1(b) says the Tribunal failed to make the necessary findings of fact as to which employees were responsible for the relevant acts or took the relevant decisions and what knowledge those employees had.  It seems to us, there is no substance in that argument, bearing in mind the clear findings of the Employment Tribunal that the person acting at all relevant times for the Local Authority was Ms Findlay.  Paragraph 7, which I have quoted in referring to the letter she wrote to the Respondent, makes that clear.

11	The next ground of appeal relates to what is often called the perversity argument.  First, it is alleged that the Local Authority did not have a factual basis upon which to conclude that the Respondent’s attendance record would be poor.  It is said that it was perverse because of the medical evidence available to the Local Authority of liability to recurrences of ill health.  That is linked to that of the second Appellant, Dr Cooper, who also had the medical evidence, in ground 2(b) of the Notice of Appeal.  However, the Employment Tribunal examined in careful detail, not only the medical evidence, but the factual evidence before them and their finding is not open, it seems to us, to attack.  It is true, that in their decision they refer to facts about the Respondent’s history in much greater detail than was before the Appellants at the relevant time.  But the Appellants did have references, referred to in the decision of the Employment Tribunal, which provided a basis for concluding that the Respondent had an exemplary work record in the period immediately before the application for this job.  It seems to us there was evidence upon which the Employment Tribunal could come to the conclusion it did.

12	It is also contended that the Employment Tribunal was wrong to find that there was no justification in withdrawing the offer of employment and that the second Appellant was not justified in recommending that.  Reference was made to paragraphs 26 and 27 of the Employment decision.  

13	The attack essentially is that in paragraph 27 it is contended in the words used by the Employment Tribunal:

“There was no reason to presume that Ms Farnsworth’s attendance would not have been first class”

and in paragraph 23, which preceded it, so far as the Local Authority was concerned, the Tribunal found that there was no reason to suppose that her attendance would be poor.  It is suggested that there was no evidence to support that.  But it seems to us that that is simply a form of words and would involve a too minute attack upon the choice of language if it formed the basis of an argument on the point of law.  It is quite clear at the beginning of paragraph 26 that the Employment Tribunal asked itself the correct question in the following terms:

“We considered whether the first Respondent was justified in withdrawing the offer of employment to Ms Farnsworth.”

And we find that they went on to make a finding in appropriate terms:

“We do not find, as a fact, that they were so justified.”

14	What the Employment Tribunal is clearly saying is that the Appellants were not justified in coming to the conclusion that the Respondent would not attend work and implied that they failed to take account of the good references and period since her last visit to a psychiatrist in which the Respondent had apparently done so well.  We find no arguable ground of appeal in ground 2.

15	Ground 3 is based upon the proposition that the Tribunal may have found that the first Appellants unlawfully discriminated against the Respondent by failing to take account of her references or having a discussion with her.  We have read the paragraphs 24 and 25 of the reasons, but it is quite clear that the trend of the decision is as follows.  In paragraph 22 there is a finding of knowledge to which I have already referred.  In paragraph 23, they then start by making a finding that the refusal to offer employment was discriminatory, but then they clearly slide, if we may say so, without specifically stating it, into an issue of justification in paragraph 23.  That then follows through the following paragraphs to paragraph 26 where they advert to the terms of the code.  They then come to a conclusion as to justification.  It is quite clear therefore that the passages in paragraphs 24 and 25 do relate to ‘justification’ and there is no ground for supposing, as ground 3 does, that there was a finding of actual discrimination by reason of the failure to take account of references. 

16	The next ground is ground 4, in relation to which 4(a) is really the same issue in another way, that the Tribunal failed to consider or make any finding of duty to make reasonable adjustments.  It seems to us that they made a finding of fact relating to justification, which is unassailable on the ground that they erred in law.  

17	Paragraph 4(b) raises another matter, which has concerned us to some extent.  Paragraph 4(b) alleges that there was an inconsistency between the Tribunal’s finding and the finding that the Respondent’s disability was a past disability.  Following on from the Originating Application, which alleged a past disability, the final words of the decision of the Employment Tribunal again was that the first Appellant discriminated against the Respondent by reason of her past mental disability.  It does not, it seems to us, disclose an error of law.  In finding that the first Appellant discriminated against the Respondent by reason of her past mental disability, does not, it seems to us, mean that the first Appellant regarded the mental disability as being in the past.  

18	Ground 5 complains that when in paragraph 30 of the extended reasons at the end of their decision, the Employment Tribunal found that Dr Cooper made certain assumptions, but there was no factual basis in the Tribunal’s decision on which such finding could be based.  Is it impossible to discern, from the decision, what assumptions the Employment Tribunal actually found and what rejected so that the Appellant could know the basis for that decision?  However, paragraph 23 refers specifically to an assumption in the following terms:

“Both respondents made the assumption that Ms Farnsworth’s attendance would be poor.”

And later on in the paragraph they said:

“The assumption as to her poor attendance at work would not have been made if she had been an applicant with a good past medical health history.”

19	Was it the fact that the Employment Tribunal may have been relying on other assumptions made by Dr Cooper, there would have been something in that point but it is simply and quite clearly that there was only one assumption and the inclusion of the letter “s” in the paragraph 30 was clearly an oversight and not a foundation for an argument on a point of law. 

20	Finally, we come to ground 6 which is that the Second Appellant, Dr Cooper, should not be in these proceedings at all because she was not the employer within section 4 and that was not the person failing to offer employment.  It seems to us, that is a very strong ground of appeal on a point of law.  It may indeed be that that is an issue that may be resolved before the final hearing in any event.  

21	Accordingly, on ground 1(a) of the Notice of Appeal, this matter will be permitted to go forward for a full hearing before the Employment Appeal Tribunal, to be listed in Category B.  We consider it should be listed for one day and the Skeleton Arguments should be exchanged not less than 14 days before the hearing.  It is not necessary to order the Chairman to provide any notes of evidence.