Appeal No.	 EAT/83/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 March 1999

Before
HIS HONOUR JUDGE D M LEVY QC
MR D J JENKINS MBE
MRS M E SUNDERLAND JP

THE POST OFFICE	APPELLANTS

MR S C JONES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR A BURNS
(of Counsel)
Instructed By:
Mr R Williams
Solicitor
The Post Office Legal Services
Impact House
2 Edridge Road
Croydon CR9 1PJ	

	JUDGE D M LEVY QC:     This is a hearing under the PHD system of an appeal by the Post Office against the decision of an Employment Tribunal sitting in Leicester on 30 September 1998 and 21 October 1998.

	The matter concerned an alleged discrimination by the Appellants as regards one of its employees, who was a driver, in the context of discrimination law.  The decision which was against the Respondent was sent to the parties on 10 November 1998.

	There was a Notice of Appeal which was received on 22 December 1998, which is somewhat prolix.  Mr Burns, whose name appears on it, says is not the version which he intended to come to this Tribunal.  However that may be, it is apparent to all of us that there are a number of matters on which this appeal should go forward.

	In the last sentence of paragraph 13 of the Extended Reasons the Tribunal say:

“We do not consider it is helpful in this case to try to apply section 6, [Disability Discrimination Act 1995] by speculating on whether the respondent’s adjustment is reasonable as we consider none is necessary.”

	Whether that is the correct approach appears to us to be clearly arguable.

	In paragraph 15 the Tribunal say in the third sentence:

“Unusually for an Employment Tribunal, under the Disability Discrimination Act 1995, we do not decide that point by considering whether the respondent acted reasonably or not.”

	That, Mr Burns submits to us and we see the force of it, does not look at materiality and subsidiarity and that is a matter which should go forward for further argument.

	At the end of paragraph 15 there is this sentence:

“In particular, we have had to consider the expert medical opinion and the latest medical research, even though that was certainly not available to the respondent when the initial decision was made in September 1997.”

	Mr Burns submits (and again we see the force in this) that a Tribunal cannot look at the advances medical science has made, after the date when an employer had to reach a decision as to the position of a worker, who had a disability at the time it was looking at it.

	Finally, in paragraph 18, the Tribunal says this:

“18.  We have considered the specific issue put forward by the respondent of the clash of its duty under the Health and Safety at Work Act and the Disability Discrimination Act 1995.”

	This, Mr Burns submits, is a reference to section 59 of the Disability Discrimination Act which says under subsection (1)

“(1)  Nothing in this Act makes unlawful any act done -
(a)  in pursuance of any enactment.”

	This is something, Mr Burns says, which has not been properly considered by the Tribunal.  This again is a matter which we think should go forward for further argument.

	There is a procedural point also which Mr Burns wishes to raise and that is this.  Apparently, in the course of the hearing, there was a short break for administrative reasons after the medical evidence had been heard.  When the Tribunal returned after the short break, Mr Burns on instructions (we do not understand he was there at the time) said that the Chairman indicated that all three members of the Tribunal had reached the conclusion, on the medical evidence that they had heard, that the restrictions imposed by the Appellants were reasonable.  This, Mr Burns submits, shows that the Tribunal erred in law in failing properly to regulate its own procedures, or by acting in a way that is contrary to the principles of natural justice.  If that is indeed what occurred, we can see that that may be a further point which Mr Burns should argue.  Before that can be argued, there should be clarification as to whether there is agreement as to the events which Mr Burns, on instruction, says occurred.  That can be found by getting confirmation from the Respondent or his advisers.  If that confirmation is not obtained then, of course, it will be necessary to seek the Chairman’s comments on that.

	In the first instance it is desirable for the Appellants to produce affidavit evidence to set out the matters on which the Appellant relies on this complaint.

	Mr Burns wishes to amend his Notice of Appeal.  We think that the matters which we have adumbrated are those which should go forward to the full appeal.  The Amended Notice of Appeal should identify these issues and leave to amend should be sought from the Tribunal hearing the appeal.  It may be that the Respondent will have submissions to make if a new point is, in fact, being introduced, which was not in the original Notice of Appeal.

	As to the mechanics for obtaining the necessary material for the full hearing, as regards the allegation that there was an error in procedure, steps should be taken by the Appellant in the next 14 days to see if an agreement can be reached with the Respondent.  If such agreement is reached, the Employment Appeal Tribunal should be informed.  If it is not reached, we will ask that the affidavit sworn on behalf of the Appellant should be forwarded to the Chairman for his comments, so that this can be here in time for the appeal.

	Mr Burns tells us that there is a case in the pipeline which may help limit some of the issues which will fall to be determined on appeal.  If that appeal has been decided by the time this appeal is heard, so much the better.