Appeal No. UKEAT/0770/04/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 November 2004

Before
HIS HONOUR JUDGE D SEROTA QC
MS J DRAKE
MR G LEWIS

MR D I TALBOT	APPELLANT

1) WAGN RAILWAYS

2) WEST ANGLIA AND GREAT NORTHERN RAILWAYS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR TOBY KEMPSTER
(of Counsel)
Instructed by:
Messrs Edwards Duthie Solicitors
292-294 Plashet Grove
East Ham
London
E6 1EE	
For the Respondents	MR G HAY
(Representative)	

SUMMARY

Disability Discrimination

ET decision on section 6 of the Disability Discrimination Act reversed because of decision of House of Lords in Archibald v Fife Council 2004] IRLR 651.  ET had followed decision in Court of Session that House of Lords reversed.

HIS HONOUR JUDGE D SEROTA QC

1.	This is an appeal together with a cross-appeal from a decision of the Employment Tribunal in Bury St Edmunds presided over by Mr B G Mitchell which was sent to the parties on 20 May 2004.  There was a two day hearing and the Employment Tribunal spent one day considering this matter in Chambers.

2.	The Employment Tribunal dismissed Mr Talbot’s complaint.  He had been dismissed on the grounds of disability.  They found him, however, to have been unfairly dismissed.  Questions of remedy were adjourned.  It is significant that the Decision of the Employment Tribunal, as we shall to come to shortly was decided after the judgment in the case of Archibald v Fife Council [2004] IRLR 651 had been delivered by the Inner House of Session in Scotland, which we understand to be the Scots equivalent of the Court of Appeal, but before the Decision in the House of Lords, which is now reported at [2004] ICR 954 UKHL32.  That decision, as we shall come too shortly, effectively requires us to allow the appeal.

3.	On 19 February 2003 the Applicant presented his first Originating Application and asserted that he had been dismissed with effect from the 22 November 2002.  However, (in fact, and the parties now agree this to be the case) the Applicant had not been dismissed on that date, and a further Originating Application was presented on 18 September 2003 in which it was asserted, and this is common ground, that he was dismissed with effect from 23 August 2003.  The Respondent asserted that the dismissal was on the grounds of ill-health and that it was fair, accepted as it had done in relation to the first Originating Application that Mr Talbot was disabled within the meaning of the Disability Discrimination Act 1995, but asserted it had taken all reasonable steps to make reasonable adjustments and if there was any discrimination it was justified on the basis that Mr Talbot was unable to carry out his job.
4.	The facts of this case are unhappy.  Mr Talbot who is now aged 45 joined the Railways in 1990 (I put this in a neutral way because there have been a number of reorganisations since 1990 when he became a trainee conductor).  After privatisation and what have you and the effect of TUPE he became the employee of the Respondent Wagn as an on train host.  Since that time there has been a further re-organisation due to amalgamation of Wagn with a number of other railway companies.  Mr Talbot’s job as an on train host involved working on trains, collecting fares, checking tickets and answering customer queries.  It clearly involved considerable face to face dealing with the public.

5.	During the course of his employment on 27 October 1999 he had the misfortune to be on a train in front of which a member of the public committed suicide.  Mr Talbot’s duties involved the supervision of the passengers on the train and attempting to prevent them from seeing the results of this unfortunate occurrence.  He himself was not spared and was exposed to it, and it is common ground that as a result he suffered from post-traumatic stress disorder and was off work for some five weeks.  He was seen by the Occupational Health Physician Dr Mackenzie in February 2000 who certified he was unfit for work in direct contact with the public or on trains.  At the time, his line manager Mr Saunders concluded that the only possible work that might be available for Mr Talbot would be at the ticket barrier in Cambridge but of course working on a ticket barrier would expose Mr Talbot to contact with the public, and as a result enquiries were made of Dr Mackenzie whether the post was suitable.

6.	Dr Mackenzie responded (I think in March of 2002) to the effect that office or administrative work would be the best kind of employment for Mr Tablot, but the barrier duties would be suitable if he had the support of his colleagues to deal with any aggressive confrontations.  Mr Talbot expressed concern that he would rather be rehabilitated to work in an office environment.  However, he was certified sick for a further 28 days in March to enable a suitable rehabilitation framework for barrier duties to be put in place.  Some time in April he began working at the Cambridge ticket barrier.  There were special conditions.  There was no overtime, that is he was not to be expected to work overtime.  He was not to be involved with any discussions concerning customer fraud.  He was to be at the in-barrier rather than at the out-barrier until such time as he felt able to move to it; that would obviously cause him less stress.  Further his shifts were to start at King’s Lynn rather than Cambridge, so that effectively he would be paid for travelling from King’s Lynn to Cambridge as part of his working day.  His rest days were to be Sunday plus one other, and he was not to be alone.  He was also to receive continued counselling and to see Dr Mackenzie.  He appeared to be fit for those duties.

7.	In July 2000 a change was made to his working pattern.  Mr Johnson had taken over as his line manager from Mr Saunders and he required Mr Talbot to book his shift at Cambridge rather than King’s Lynn with the result that his travelling time, that is approximately 1 hour each way, would now be unpaid.  He protested and as a result the start of his arrangements was put back to 13 August, but nonetheless the change remained in place.  Mr Johnson apparently had taken advice from the Human Relations Department.  Mr Talbot considered that paragraph 5 of his contract of employment, which is set out in paragraph 10 of the Employment Tribunal decision, entitled him to be rostered at King’s Lynn; the Respondent disagreed.

8.	As some point in October of 2000 there was an unhappy incident at the barrier in Cambridge.  Mr Talbot became engaged in a confrontation with a passenger.  It is not necessary for us to go into details as to what occurred or why.  On 25 October the Doctor at the Occupational Health Department (we assume Dr Mackenzie but we are not sure) expressed the view that there should be a permanent limitation on Mr Talbot’s working with the public.  This ruled out barrier work.  At the time Mr Talbot applied for the job of an on Train Host Team Leader, but the Respondent correctly in the light of medical evidence, regarded this as unsuitable, because they had been advised that Mr Talbot could not work with the public or on trains.  This was at a time shortly after the Hatfield train crash, which required significant extra work in the Customer Relations Department of the Respondent.  Sometime in November 2000 (we do not know when) he was seconded to that Department.  His job was considered to be a short term job and involved principally the opening and sorting of mail.  There was some exploration as to whether he might retire on grounds of ill-health.  This was explored with Dr Mackenzie in December who advised that Mr Talbot was fit to work subject to the permanent limitation on his having no contact with the public.  He later advised that Mr Talbot’s work might be extended to dealing with telephone enquires.

9.	In the beginning of 2001 (we did not know when) a merger took place between the Respondent, C2C, and Silver Link.  As a result the Customer Service Departments were to be merged and there were to be a number of redundancies.  Interviews, however, took place for those posts that remained.  At first applications were limited to those with permanent jobs in the departments who were possibly subject to redundancy, but the process was widened to include Mr Talbot who had only been seconded to the Department.  Mr Talbot’s superiors hoped that he would in fact be placed permanently in the re-organised Customer Relations Department where it was considered he fitted in quite well.  He was interviewed in July 2001 by the customer service manager (I think her name was Pauline Wilson).  She neither knew Mr Talbot, nor did she know of his particular difficulties and she was unaware of his medical difficulties or the views of his managers.

10.	She wrote to Mr Talbot to explain her reasons for rejecting him for the post of permanent staff in the Customer Relations Department and we quote from paragraph 20 the Employment Tribunal decision:

“you have had limited experience of working within a Customer Relations Department. Although you were able to demonstrate experience of dealing with customers face to face, you were unable to demonstrate any experience of composing letters or dealing with customers over the phone within your current role.”

Mr Talbot therefore ceased working on Customer Relations and was certified as unfit to work from 6 July.  He saw Dr Mackenzie in November 2001 who confirmed that his position was unchanged.  Dr Mackenzie referred to Mr Talbot’s difficulty in controlling his anger, and said he was permanently unfit for work in any situation that required direct dealings with the public.  He also suggested that Mr Talbot’s disability might be within the Disability Discrimination Act 1995.  His entitlement to full pay was exhausted sometime in November; his full sick pay entitlement, that is, and he went on to half pay.  He was asked to attend for an interview as a carriage cleaner on permanent night shift, but this was regarded as unsatisfactory because of travelling difficulties and the possibility of resurrecting the experiences of October 1999.  

11.	By August of 2002 even his entitlement to half pay had been exhausted.  We know that he had a meeting; we assume with the Occupational Health Psychiatrist, in August and he expressed the view that if he received a severance package as a result of ill-health and was financially supported, he would expect to go to College and do a Diploma in computers.  On 29 August a meeting was arranged between the Applicant and his Union Representative, someone from the RMT, Mr McCarthy of the Respondents’ Human Resources Department and Mr Saunders (who had succeeded Mr Johnson as his line manager).  A severance package was outlined and there was discussion about the inability of Wagn to find a suitable post for Mr Talbot.  He was told there would be ill-health severance.  At that stage he made no objections.  However, no letter was sent to confirm that he had in fact been dismissed.  As a result of the re-organisation there was what could described as a muddle as to who it was who was responsible for progressing matters further on behalf of the Respondent.  In the event nothing was done.

12.	On 19 February Mr Talbot having assumed that he had been dismissed at the meeting of the 29 August issued an Originating Application.  This prompted the Respondent to call a meeting for 14 August 2003.  At this meeting, again it was said on behalf of the Respondent, that there were no jobs available for him and it was confirmed that his dismissal date would be 14 August and appropriate ill-health severance payments would be paid and he would be put forward for an enhanced pension.  He was told he had a right to appeal but he did not exercise that right.

13.	It seems, and the Employment Tribunal certainly considered this to be the case, that between the meeting in August 2002 and certainly August 2003 absolutely nothing was done so far as concerned attempting to find alternative work for Mr Talbot.  It was assumed, wrongly, that he ceased to be an employee, and that is the explanation why no further steps were taken.  It is of course now accepted that he remained an employee until August the following year.

14.	We now turn to the decision of the Employment Tribunal.  It set out to answer four questions.  Firstly, whether the dismissal was justified having regard to the provisions of section 51B of the Disability Discrimination Act 1995 to which we shall refer as “the Act”.  Secondly, did the Respondent fail to make reasonable adjustments in accordance with section 6.  Thirdly, did the Respondent act reasonably in treating ill-health as a reason to dismiss under section 98(4) of the Employment Rights Act 1996.  There was a further issue relating to severance payments with which we are not concerned.  The Employment Tribunal went on to make the findings of fact to which we have referred above and in paragraph 27 it set out the ill-health policy and it seems to us that the Employment Tribunal went on to correctly direct itself as to sections 1, 4(2), 5(1) and (2), 6(1), 6(3) (c) and 6(7) of the Act.

15.	At that time as we have said Archibald v Fife Council [2004] IRLR 651 had only been decided in the Court of Session although it was subject to appeal to the House of Lords.  That decision was authority which the Employment Tribunal correctly concluded was binding upon it that where a claimant was unable to do the irreducible minimum of the job for which he was employed the Respondent had no obligation to seek to move him to another vacancy.  This was a decision that was obviously strongly relied upon at the hearing by the Respondent.  The Employment Tribunal then directed itself as to section 98(2) of the Employment Rights Act 1996 and in paragraph 40 correctly asked itself whether the Respondents acted reasonably in treating it, that is the reason for the dismissal, as a reason to dismiss having regard to equity and the substantial merits of the case.

16.	They then went on to say this:

“In considering dismissals for ill health it is appropriate for the Tribunal to consider whether the respondent informed themselves sufficiently of the applicant’s medical condition and the prognosis for his future recovery and whether they gave sufficient consideration to whether there were any alternative roles which the applicant could fill, including giving the applicant the opportunity of discussing the matter with the respondents in detail before dismissal. The test is that of a reasonable employer and not whether this Tribunal might have approached the matter differently.”

It is clear therefore that the Employment Tribunal had well in mind the Burchell test.  The Employment Tribunal in paragraph 45 and 46 found that Mr Talbot was dismissed because he was unable to carry out the duties of his role as an On Train Host.  This was a decision based upon his disability and was for a reason relating to that disability within the meaning of section 5(1) of the Act.  The Employment Tribunal considered the treatment was justified.  They acted as reviewers of the Respondents’ decisions and did not substitute their own views.  The Employment Tribunal say this:

“The respondents took a reasoned and reasonable decision that the applicant could not carry the work for which he was employed and having retained the applicant in their employment for in the region of three years after he became unable to carry out his contractual duties, the decision to bring the applicant’s employment as on train host to an end, was a decision they were entitled to make.”

17.	The Employment Tribunal in paragraph 47 felt that they were constrained to follow Archibald v Fife Council [2004] IRLR 651.  They noted that the Respondents were not able to rely upon any justification if they had failed to comply with their section 6 duty, that is the duty to make adjustments.  However, having regard to the decision of Archibald v Fife Council [2004] IRLR 651 as we have already mentioned, as Mr Talbot could not carry out the irreducible minimum of duties of an On Train Host, could not deal with the public, and could not work on trains those were not arrangements which placed him at substantial disadvantage in comparison to those who are not disabled.  They were conditions of the job which were an intrinsic part of the job itself, and therefore the Employment Tribunal concluded the section 6 duty did not arise.

18.	The Employment Tribunal then in paragraph 48 went on to consider what the position might be if they were wrong about what they had said as to following Archibald v Fife Council [2004] IRLR 65.

“If however we are wrong about that and the duty under Section 6 arose the respondents made some efforts to comply with it in deploying the applicant to the barrier duties at Cambridge, the temporary role in Customer Relations and offering him the opportunity of the carriage cleaning role, but their efforts in that respect ceased in February 2002 at the latest. The time at which the assessment is to be made by the Tribunal must be the date upon which the dismissal took place in August 2003 at which point no realistic efforts were made to transfer the applicant to alternative roles. If the duty arose we consider that the duty must be wider than looking for a role at the applicant's home station as submitted by the respondents' solicitor. If therefore either Archibald v Fife was wrongly decided or we have wrongly interpreted the thrust of that case, we would not consider that the respondent had fully discharged their Section 6 duty by the efforts that they undoubtedly made during 2000 and 2001 to find an alternative role for the applicant. Similar efforts should have been made up until dismissal.

19.	The Employment Tribunal in paragraph 49 did not consider that the withdrawal of the temporary concession about rostering at King’s Lynn amounted to discrimination on the grounds of disability.  There was no obligation, the Employment Tribunal found, to give Mr Talbot more favourable treatment and the Employment Tribunal then went on to consider the question of unfair dismissal.  In paragraph 51 they were satisfied that on the evidence they heard, that the reason for dismissal related to Mr Talbot’s long term ill health, his inability to carry out work that was employed to do.  Indeed it was not disputed that from October 199 Mr Talbot was unable to carry out the role of On Train Host or any other role which required working on trains or direct contact with the public in the course of his work.  That was a reason which related to his capability to perform the job and was a potentially fair reason within the meaning of section 98(2).  The Employment Tribunal, however, did not consider that the Respondent had acted reasonably and they had regard to the procedure.

“52.	Within the criteria of Section 98(4) the Tribunal do not consider that the respondents acted reasonably. It is clear from the well known decision in Polkey v Dayton Services Limited that the Tribunal is entitled to take into account the procedure adopted by the respondents. Between November 2001 and the termination of the applicant's employment at the meeting on 12 August 2003, the respondents took no action to inform themselves of the applicant's up to date medical condition other than meeting with him on 29 August 2002 and 12 August 2003. The respondents long term sickness policy suggests that welfare visits should be made "for as long as the absence continues with an interval of two months being regarded as undesirable ". The policy provides that consideration should take place as to whether alternative employment opportunities had arisen and "an updated report. must be compiled in respect of each visit made or interview held". The respondents failed to do so. It is also provided by the policy that a note of discussions with the employee should be kept. The Tribunal have not been referred to any notes of the meeting with the applicant on 29 August 2002 or the meeting of 12 August 2003 although at both of the meetings it was incumbent upon the respondent to raise with the employee the possibility of alternative posts. The applicant was not sent internal vacancy lists to enable him to consider whether to apply for other posts. The total lack of action by the respondents for a complete year was, in our judgement, procedurally inexcusable. As procedural shortcomings of this nature render a potentially fair reason to dismiss, unfair, we consider that this was an unfair dismissal. 

20.	It is right that we should also draw attention to paragraph 53.

“53.	As we determined earlier in the case not to proceed with remedy, we make no firm findings in relation to that aspect but in case it assists the parties, we would in assessing the remedy have regard to the fact that the applicant was represented by a Union official at various meetings and yet made no applications either for the internal vacancy list to be sent to him, or for jobs on the vacancy list, arising at any time between February 2002 and the eventual dismissal. We would note also the expression of intent given to the consultant psychiatrist by the applicant that he wished to undertake a course of training, the absence of a request for re-engagement in his Originating Application of 19 February 2003 and the absence of an appeal against his dismissal in August 2003 as some indication that the applicant may not have pursued or accepted other vacancies within the respondent organisation.”

21.	The essence of the Notice of Appeal relates to the fact that the Employment Tribunal was wrong.  The main pillar of its decision went when the House of Lords overruled the Court of Session’s decision in Archibald v Fife Council [2004] IRLR 651, and when the House of Lords found that the obligation under section 6(3 (6)) arises even in cases where an employee had become quite incapable of fulfilling his job description, so becoming liable to be dismissed.

22.	Effectively, therefore the appeal was bound to succeed and the burden of showing that the decision of the Employment Tribunal could be upheld, in our view, and indeed the view of Mr Hay and Mr Kempster, now fell upon the Respondent from whom we heard first.  It is important to bear in mind that there is no cross-appeal.  Essentially, the point that is made by Mr Hay to justify the decision is that there was no obligation on the part of the Respondent employer under section 6(3) after the meeting that had taken place in August 2002.  Mr Hay was not able to advance any authority to support his submission and essentially it amounted to this.  Everybody thought albeit incorrectly that Mr Talbot had been dismissed, in those circumstances the Respondent could not have been under any duty.  It seems to us that this is an argument that cannot possibly succeed.

23.	The points that Mr Hay makes, to which we will come shortly are all points, as it seems to us, that go to quantum; they do not go to liability.  It is quite clear, as it seems to us that the duties under section 6 are cast upon an employer as long as the employee remains in his employment.  That is a perfectly simple rule to understand and apply.  The fact that the parties mistakenly had assumed that Mr Talbot had already been dismissed does not as it seems to us, affect the existence of the duty.  How that duty might be fulfilled in the particular circumstances of the case is another matter, which is, as Mr Kempster acknowledges, relevant to issues as for remedy.  It seems to us, that under section 98(2) it is no answer to the Respondent to say they thought Mr Talbot had already been dismissed in August 2002 and therefore when they dismissed him August 2003 it was unnecessary from them to go through any further procedures.  It is now accepted by the Respondent that that approach cannot be justified, as a matter of law, so it seems to us the same approach must be adopted, so far as section 6 of the Disability Discrimination Act 1995 is concerned.

24.	The factual issues as to what might have happened, what jobs might have been available as it seems to us, go to remedy.  But it cannot be an answer simply to assert there was no evidence of any jobs being available.  Firstly, the burden is in any event on the Respondent to prove that.  The breach of duty, in this case is not so much, in not transferring Mr Talbot to any jobs that became available, but rather lies in not even looking to see what jobs might have been available.

25.	The next argument with which we have to concern ourselves is that there is an inconsistency between the findings in paragraph 48 and the findings in paragraph 53 of the decision.  It is suggested that there is an inconsistency because paragraph 53 seems to suggest that even had there been no procedural irregularities the Respondent would inevitably have been dismissed, in any event.  It is said that the decision of the Employment Tribunal in its conclusions in paragraph 48 is perverse.  We bear in mind, that so far as a perversity appeal is concerned the test is set very high.  We have regard to such cases as Yeboah v Crofton [2002] IRLR 634 (CA) and also to the decision of the House of Lords in Mellon and Others v Hector Powe Ltd [1981] ICR 43 and the Respondent comes nowhere near showing that this decision of the Employment Tribunal was perverse.  Furthermore, they raise a number of specific factual matters which it is said the Employment Tribunal should have had regard to.  These matters include such matters as Mr Talbot’s failure to apply for an internal vacancy or job vacancy list, his expression of intent to the Occupational Health Psychiatrist in July or August 2002, that he wished to be trained to do computer work and the absence of a request for re-engagement in the Originating Application.

26.	It seems to us that these matters go to quantum.  They do not go to liability and in those circumstances it is, as it seems to us fully open to the Respondent to argue all of these matters at the remedies hearing when its seeks to persuade the Employment Tribunal, as to the correct level of compensation.

27.	We finally say this.  The Employment Tribunal went out of its way to give some very sensible advice and guidance to the parties.  This matter will now be remitted for a remedies hearing at the Employment Tribunal.  Having regard to the indication given by the Employment Tribunal both sides will need to consider very carefully the level of compensation that Mr Talbot is likely to receive.

28.	We would strongly urge the parties to enlist the services of ACAS in an attempt to produce a negotiated settlement for this dispute because we would be most reluctant to envisage a situation in which the parties go to a further hearing without at least having made the most strenuous efforts to settle this matter by agreement, and we draw attention to the fact that the services provided by ACAS are free.