Appeal No. EAT/0649/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 2001

Before
THE HONOURABLE LORD JOHNSTON
LORD DAVIES OF COITY CBE
MISS A MACKIE OBE

MRS M A ARNOLD	APPELLANT

POINTON YORK LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	SIMON ROBINSON
(Of Counsel)
Instructed by
Messrs Freer & Freer
Solicitors
16-18 Millstone Lane
Leicester
LE1 5JN	
For the Respondent	DAVID MONK
(Of Counsel)
Instructed by
Messrs Bray & Bray
Solicitors
1-5 Welford Road
Leicester
LE2 7AN	

THE HONOURABLE LORD JOHNSTON

1.	This is an appeal at the instance of the employee Applicant against the decision of the Employment Tribunal consequent upon her being made redundant by her employers to the effect that she was not discriminated against on grounds of disability and that the dismissal was unfair.

2.	The appeal is taken against the question of discrimination that there being no challenge to the finding of the Tribunal that there was inadequate consultation in relation to the redundancy process thus rendering the dismissal unfair.

3.	The background to the matter is that the Applicant is seriously visually impaired, has been apparently so most of her life and has been employed by the employers for some twenty five years with that disability.  The further background to the matter is that the employer who trades in financial services requires to retain a licence from the Bank of England which in turn has certain conditions attached relating to trading profitably.

4.	It became apparent it appears from findings in fact that that latter situation could not continue with the existing workforce and the employer therefore embarked upon redundancy process.

6.	The critical findings of the Tribunal are in relation to matters of fact.  First of all, paragraph 4:

“4	We make the following findings of fact on a balance of probabilities:

a)	The applicant was employed by the respondents as an audio typist.

b)	The applicant commenced employment on 1 April 1974 and remained until 30 September 1999, the effective date of termination.

c)	The respondents are engaged in the financial market.  They employ about 65 and have average administrative resources.

d)	In Leicester, the respondents’ business is split into the pensions side and the consultancy side.  The six members of the administration staff (of whom the applicant was one) worked for both sides of the business.  In addition to the applicant, there was a postroom supervisor, two copy/audio typists, a receptionists/telephonist and one employee who dealt with IT support.

e)	In June 1999, at an appraisal meeting, the suggestion was made that the applicant might train to work the switchboard.  An assessment of the cost of providing suitable equipment and training for the applicant was made.  It amounted to £4,000 and was considered too costly, as there were plans to change the telephone system, which would have resulted in less work for a telephonist.

f)	During 1999, the management of the respondents had meetings to discuss how the company’s overheads could be reduced.  There was a fear that the company would make a loss which could lead to the loss of the licence granted by the Bank of England.  It was imperative to retain this licence.  Without it, the company was unable to operate.

g)	A meeting held on 9 August 1999 resolved that the work done by the six members of the administration staff could be done by three.  The remaining three were to be able to perform, individually, all the duties of the original six employees.  This was to lead to a considerable reduction in wages.

h)	Following the meeting, it was decided to select the employees who were capable of carrying out all the tasks of the administration staff.  Only Barbara Connelly was considered able to cope with all the tasks of the new administration team.  As all the old jobs had gone, the remainder of the team were provisionally selected for dismissal on the ground of redundancy.

i)	At a meeting held on 22 September 1999, the applicant and other members of the staff were told of the provisional selection which had been made and the reasons for it.  This meeting was followed by individual consultation on the same day.  The applicant was interviewed by Mrs Hallett, the managing director, with whom she had a good relationship.  A job description for the three new posts was available and the applicant accepted that, because she was blind, there were a number of tasks which it was impossible for her to carry out.

j)	Consideration had been given to training the applicant to do more than audio/typing but, even after training, there were insufficient tasks to justify giving one of the remaining jobs to the applicant.  If she had been retained, the three administrators would still be required.  The saving in overheads would therefore be reduced and the other three administrators would have been under-employed.

k)	The applicant was given particulars of the redundancy package offered and was told that if she wished, she could finish there and then without working her notice.  The applicant chose to continue working until the end of the month.  Before she left, she had a further meeting with Mrs Hallett but no alternative employment was found for her.

l)	The applicant’s employment came to an end on 30 September.  She was paid up until the end of her notice period.”

Thereafter paragraphs 7, 8 and 9 in relation to their decision:

“7.	We have also considered whether the respondents’ conduct in selecting the applicant for dismissal on the ground of redundancy amounted to discrimination under the terms of the Disability Discrimination Act.  In dealing with this aspect of the case, we are satisfied that, by selecting the applicant, the respondents treated her less favourably for a reason related to her disability.  She was selected because, as a blind person, she was unable to carry out all the tasks required by those who were to fill the new posts.  In those circumstances, we have had to consider whether the respondents had shown that the treatment was justified.

8.	Further, we have reminded ourselves that the respondent had a duty to take all reasonable steps to avoid the disadvantage suffered by the applicant in the selection process.  We are satisfied that the respondent could have taken steps which would have allowed the applicant to have been selected for one the three new jobs.  For example, the respondent could have arranged for the duties to be shared so that the applicant was left only with tasks she was capable of carrying out.  Her hours of work could have been varied, she could have been provided with training, equipment could have been modified or acquired, instructions and procedures could have been modified and she could have been provided with an assistant.  All of these steps would have enabled her, if taken, to have been capable of working in one of the new posts.  The steps were not taken and, therefore, we have had to consider whether the respondent has justified the failure to take them.

9.	The respondents have satisfied us that the treatment of the applicant and the failure to take reasonable steps was justified.  We acknowledge that the applicant, after 25 years service, was left without a job but, unless overheads were reduced, the respondent was going to make a loss which would lead to the removal of its licence by the Bank of England.  Without a licence, the company would be unable to trade leading to the loss of all 65 jobs.  None of the steps or adjustments the company could have made would have resulted in any greater saving of overheads.  There was no way of re-organising the work of administrative department which would have resulted in the applicant being appointed to one of the three available posts.  If the applicant had been appointed, the other three would still have been required or the applicant would have required an assistant to help her.  The work the applicant was capable of doing on her own (even with training or the modification of equipment and procedures) was insufficient for installing her in one of the new posts.  We are satisfied, therefore, that the respondent did not discriminate against the applicant on the grounds of her disability.”

7.	Before looking in detail at the argument presented by Mr Robinson on behalf of the Appellant it is important to note the Tribunal in a succinct but clear decision have considered a number of factual issues of the whole background through redundancy and in particular in the latter part of paragraph 4 of the decision which we have quoted have dealt with the particular issues relating to what was the capability of the employee the Applicant to conform to the economic requirements of the reduced workforce and we mention the word ‘economic’ because this whole case is governed by the fact that for the reasons already stated the employer was required to reduce his running costs by reference to the level of the employment numbers, to retain trading profitability .

8.	As also can be seen from the decision in paragraph 8 the Tribunal having made it clear they are looking into the background of the Disability Discrimination Act considered what the employer could have done by way of reasonable adjustment to conform to the requirements of the Applicant in relation to her disability.  They conclude the steps which could have been taken, were not taken, and therefore focussed on paragraph 9 which we have also quoted on the issue of justification which of course is highly relevant in the context of the legislation once discrimination has prima facie been established.

9.	We should also recognise that while the Tribunal has not specifically referred to the code of practice in relation to the disability discrimination it is quite clear to us that they are considering the whole case against that background.

10.	That is important because Mr Robinson’s main and indeed substantive submission was to the effect that the employer and consequently the Tribunal have not addressed and should have in terms of the code the fact that if access had been made to external organisations such as the Royal National Institute for the Blind and the Government Scheme, Access To Work, financial assistance could have been made available to provide assistance for the Appellant to continue in her job and also financial assistance would have been available for the company in maintaining her employment.

11.	He submitted that this was something the employer should have done and had thus failed in fact to make reasonable adjustments to accommodate the employee’s position and that furthermore the Tribunal should also have taken this into account in their overall assessment of the position against the background of an admitted disability discrimination.

12.	Before dealing with this submission in detail we would make two observations.  Firstly, while there is a general duty in terms of the legislation for an Employment Tribunal to have in mind the terms of the Code of Practice in relation to disability when considering an issue of disability there is a limit to which it can go if the matter is not put in evidence before it in any practical way.  It was not disputed by Mr  Robinson and certainly it is not his fault because he was not at the original hearing that the matter of external assistance was not put in issue at the original hearing nor was any evidence led which would indicate what might have been available to the employer in terms of financial assistance if they had retained the services of the employee.

13.	Thus, there was no opportunity given at any stage, even up to now except by a vague evidential submission by Mr Monk because he deliberately left it vague for that reason, for the employer to dispute at the end of the day even with assistance available, the feasibility of retaining the employee on that basis and nevertheless their financial targets being met: that is to say to trade at a profit rather than simply at a reduced loss.  It must be therefore necessary to treat with great caution any attempt to introduce these questions at this level of the Employment Tribunal system where they had not been canvassed before the Tribunal below and could certainly have been by way of review.  In our opinion it is not appropriate to entertain this issue at this stage, for that reason alone.

14.	On that basis it seems to us that the sole issue for us is to determine whether upon the facts found paragraph 9 of the decision discloses any error of law or perversity such as would prevent this decision standing.  We are entirely satisfied upon the evidence before the Tribunal that every finding in that paragraph was based upon evidence that was before it.  It is therefore entirely supportable to quote Arden LJ in Jones v The Post Office [2001] IRLR 384.  We recognise that the test that Her Ladyship sets out in that case with regard to the words ‘material’ and ‘substantial’ in considering the issue of justification do not in fact feature in the decision in paragraph 9 but we do not consider that to be relevant if it is quite clear that as we think it is the Tribunal addressed the correct decision and the correct issue in reaching their decision.

15.	For these reasons we are satisfied that this decision does not disclose on the face of it any error in law or furthermore, far from it, perversity which would entitle us to interfere with it.

16.	In these circumstances the appeal is dismissed.