Appeal No.	 EAT/419/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 March 2000

Before
HIS HONOUR JUDGE PETER CLARK
DR D GRIEVES CBE
MR N D WILLIS

SHAW MUNSTER LTD	APPELLANT

MR K TRENTHAM	RESPONDENT

Transcript of Proceedings

JUDGMENT

FULL HEARING
Revised

	APPEARANCES

For the Appellant	MR S JONES
(of Counsel)
Instructed by
EFF Broadway House
Tothill Street
London  SW1H 9NQ	
For the Respondent	MR J W MILLER
(Representative)	

JUDGE CLARK

1	This is an appeal by the employer, Shaw Munster Ltd (the company) against a reserved decision of the Birmingham Employment Tribunal, promulgated with extended reasons following a 5 day hearing on 12 February 1997, upholding the Applicant employee, Mr Kevin Trentham’s complaint of unfair dismissal and disability discrimination.

2	The Applicant was born on 12 February 1964.  He has Becker Muscular Dystrophy, a wasting disease which causes weakness of the muscle power in the legs and arms.  He is mainly affected in the legs.  He uses a stick.  It is common ground that he is disabled within the meaning of section 1, of the Disability Discrimination Act 1995.

3	He left school at the age of 16 and trained as a polisher.  He has followed that trade throughout his working life.  He commenced employment with the company on 8 October 1990.

4	During the course of his employment difficulties arose over his attendance record.  That led to a number of warnings, all of which had expired by the end of 1996.  The last recorded warning was on 16 May 1996.

5	The Applicant worked on the lower ground floor of the company’s premises.   Access to his workplace was by what were known as the front stairs.  There was a single handrail on the left side when descending those stairs, but no handrail on the right.

6	On 6 August 1996 he slipped when descending those stairs.  As a result of that incident, entered in the Company’s accident book, he requested a second hand rail on the right hand side of the front stairs.

7	Mr Edge, the General Manager, was aware of that request.  It was left to Mr Davies, the Works Manager, to look into the provision of an extra rail.  No action was taken.  Mr Davies suffered from cancer and subsequently died.

8	The matter was not followed up by Mr Edge nor by the Managing Director Mr Tyler.  Mr Edge accepted in evidence that it would have taken 10 minutes to put a scheme on paper and half a day to fix the extra rail, it being necessary to erect a stanchion for that purpose.

9	Instead, when the Applicant repeated his request he was advised to use alternative stairs, the rear stairs, which would have involved a slightly longer journey, about 90 yards, to his workplace.  The rear stairs were narrow and also had just one handrail.

10	The Applicant continued to use the front stairs.  Further incidents were recorded in the accident book.  On 20 January 1997 he slipped going upstairs; on 29 January and again on 28 February he fell going downstairs at his start-time, 8am.

11	The Employment Tribunal noted that no extra handrail had been fitted to the front stairs by the date of the Employment Tribunal hearing in October 1998.

12	Conversely, a request by the Applicant for a handrail to be fitted in the lavatory was attended to within a short time.

13	The company did not contend that cost was a factor in erecting the second rail on the front stairs.  No outside advice was necessary.  They had intended to fix the second rail in due course but other pressures had caused action on this request to be put off.

14	On Friday 21 March 1997 the Applicant left work, never to return.  He saw his General Practitioner on 24 March, who signed him off sick.  Subsequent sick certificates taking him up to June 1997 spoke of the Applicant suffering from stress and depression.  On 1 June 1997 he resigned from the employment by letter of that date, citing the treatment which he had received at the hands of the company.

15	The Employment Tribunal found that the Applicant resigned in response to the company’s fundamental breach of the implied term of mutual trust and confidence.  He was constructively dismissed.  In reaching that conclusion they took into account the following factors: -
(1)	No action had been taken on his request for a second handrail
(2)	He had ongoing problems relating to his starting time, his completion of worksheets and upset caused by his being examined on the company’s premises by Dr Goadby, an Occupational Health Service adviser brought in by the company, on 5 March 1997.  Further, the Employment Tribunal took the view that the view that the tone of the correspondence sent by Mr Tyler whilst the Applicant was off sick with stress, which sought a meeting to discuss his future employment with the company contributed to the company’s breach of contract.  The Employment Tribunal described the letter of 29 May 1997, from Mr Tyler as the last straw.  We think that may have been intended as a reference to a letter of 22 May, in turn referred to in the Applicant’s resignation letter.

The company denied the dismissal and advanced no potentially fair reason for dismissal if the Applicant made out his case of Constructive Dismissal.  Accordingly the dismissal was unfair.

As to the claim under the Disability Discrimination Act, the Employment Tribunal found that the company had failed contrary to section 5(2) of the Act, to make reasonable adjustments under section 6.  That was the failure to provide a second rail for the front stairs.  Further, they found in terms that that discrimination was unlawful by virtue of section 4(2)(d).  The Applicant’s disability had played a major part in his dismissal.

	Turning to remedies, the Employment Tribunal chose to award compensation principally under the Disability Discrimination Act which is not subject to the statutory maximum than applying to a claim of unfair dismissal under the Employment Rights Act 1996 Employment Rights Act .

	Avoiding double counting they awarded a basic award of £1,012.80 and a compensatory award limited to £200 loss of statutory rights under Employment Rights Act.

	Under the Disability Discrimination Act the Employment Tribunal assessed the Applicant’s loss as follows:  

First loss of earnings earnings from termination of the employment until the date of the hearing together with future loss of earnings for a period of 2 years, less incapacity allowance paid on weekly basis.  Injury to feelings in the sum of £5,000.  In all a total award of £19,859.93.

The Appeal

In support of the appeal Mr Jones takes 4 separate points.  We shall deal with each in turn.
(1)	Disability Discrimination Act’s section 6(1)
Mr Jones does not seek to contest the Employment Tribunal’s findings under section 6(1)(b) Disability Discrimination Act (i) that the absence of a second handrail on the front stairs resulted in the Applicant being at a substantial disadvantage in comparison with persons who are not disabled and (ii) that the company was under a duty to take reasonable steps in order to prevent the absence of a second handrail placing the Applicant at a substantial disadvantage.
However, the first question raised in this appeal is whether the Employment Tribunal erred in law in concluding that the company was in breach of that duty.  The point that is taken is that the Employment Tribunal has failed to identify the period in which it would be reasonable to take remedial steps by fitting the additional handrail.

The Applicant first complained about the absence of a second handrail following the slipping incident on 6 August 1996.  That was before the Disability Discrimination Act came into force on 2 December 1996.  In their reasons the Employment Tribunal observe that a second handrail had still not been fitted by October 1998.  In these circumstances, submits Mr Jones, it is not clear what period of time the Employment Tribunal have taken into account.  Was it from 6 August or 2 December 1996?  Did it run until the Applicant lodged his grievance on 20 March 1997; or when he resigned on 1 June, or indeed was it up to the date of the hearing in October 1998?  Such express findings, he contends, are necessary in order to understand the basis on which the company was held to be in breach of its duty under section 6(1) and hence under section 5(2).

In our judgment the Employment Tribunal can properly be taken to have judged the question under section 6(1) on the basis of the period from the first request on 6 August 1996 until the Applicant’s resignation on 1 June 1997.  We reject Mr Jones submission that the company’s duty ceased when the Applicant went off sick in March 1997.  At that stage there was no indication that he would not return to work, and by letter dated 25 March 1997, in answer to the Applicant’s grievance letter dated 19 March, Mr Tyler informed the Applicant that a second handrail would be fitted “in due course”.  It never was.  Further, we are satisfied that although the company was under no duty under Disability Discrimination Act to make the necessary adjustment before 2 December 1996, it was open to the Employment Tribunal to take into account the fact that the Applicant had made his request on 6 August 1996.

We are satisfied that based on that time-scale it was open to the Employment Tribunal to conclude that the company was in breach of their duty owed to the Applicant under section 6(1)(b) and, in the absence of justification were in breach of section 5(2) of the Act.

(2)	Constructive Dismissal
Mr Jones attacks the Employment Tribunal’s conclusion at paragraph 6(2) of their reasons that the Applicant was constructively dismissed.  He first submits that the Employment Tribunal have not dealt with an argument raised below on behalf of the company that by lodging a grievance on 20 March 1997 the Applicant had affirmed the contract and could not later rely on any earlier repudiatory breach.

We are not satisfied that this point was taken below, having considered the written submissions of the parties before the Employment Tribunal and what we have been told today.  However, assuming that the point was taken it was not in our view a good one.  If an employee raises a grievance which is not satisfactorily dealt with, as the Employment Tribunal found in paragraph 6(2), that adds to the Applicant’s case that a series of incidents, culminating in the ‘final straw’, may taken together amount to a fundamental breach of the implied term of mutual trust and confidence.  That was the Applicant’s case here.  It was accepted by the Employment Tribunal.  They were entitled to reach that conclusion as a matter of fact, in our view.

(3)	Disability Discrimination Act Compensation
It is submitted that the Applicant’s case below was not put on the basis of disability dismissal.  Hence, it was not open to the Employment Tribunal to award uncapped compensation under the Disability Discrimination Act as opposed to compensation for unfair dismissal under the Employment Rights Act 1996.

We are not satisfied that this submission is made out.  Where a breach of section 5(2) Disability Discrimination Act is an effective, not necessarily the only cause of a dismissal it is open to an Employment Tribunal to find that the discrimination was unlawful under section 4(2)(d) Disability Discrimination Act.  We see from the note taken by Mr Monro, the company’s representative below, of Mr Miller’s opening that Mr Monro recorded that section 4(2)(d) was mentioned.  In Mr Miller’s written closing submissions to the Employment Tribunal this sentence appears:

“Section 4(2) states it is also unlawful to discriminate by dismissing him or subjecting him to any other detriment”.

In these circumstances we are satisfied that the issue of disability dismissal was raised before the Employment Tribunal and that they were entitled to reach the conclusion that the Applicant had made out his case on this point.

We should also mention the first point raised by Mr Jones in this appeal in respect of liability under Disability Discrimination Act.  He submits that if the Employment Tribunal based their assessment of compensation for injury to feelings, £5,000, on a failure by the company to install the second handrail up to October 1998 that distorts the proper figure for loss under this head.  We do not accept that that is what the Employment Tribunal did.  We consider that the award made by the Employment Tribunal properly reflects the degree of disability discrimination suffered by the Applicant culminating in his constructive dismissal on 1 June 1997.  Put another way, the award is not so manifestly excessive as to require our interference on the facts of this particular case.
(4)	Mitigation of Loss
Finally Mr Jones attacks the Employment Tribunal’s finding, implicit in paragraph 7(3) of their reasons, that the Applicant had not failed to mitigate his loss by making only 2 job applications following termination of the employment on 1 June 1997, and then not seeking new employment for about 12 months prior to the Employment Tribunal hearing.

We see the force of that submission, but it was the Employment Tribunal which had the opportunity to assess the Applicant, who gave evidence on his attempts to find alternative work before them.  They concluded that having been rebuffed twice, the Applicant lost heart for a continued job search.  They appear to have accepted that was a reasonable attitude for him to take, given his circumstances.  It is, we think, implicit in the Employment Tribunal’s finding that he would remain out of work for another 2 years that they perceived his prospects of obtaining new employment, even had he been more active in his job search, as poor.  They say in terms that they considered there would be considerable difficulty in the Applicant obtaining any other employment.

In these circumstances they arrived at a compromise figure of 2 years future loss, bearing in mind the Applicant’s medical evidence that he would be fit for work for some 10 years, as opposed to Dr Goadby’s evidence that he would have been unfit for work by November 1997, coupled with the prospects of continued employment with the company, given its size and the economic uncertainties which it faced.

We shall not interfere with that assessment by the Employment Tribunal.
Conclusion

16	It follows, in our judgment that no error of law has been made out in the Employment Tribunal’s decision.  Accordingly, this appeal must be dismissed.