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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Arboshe v East London Bus & Coach Co Ltd [1999] UKEAT 877_98_1712 (17 December 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/877_98_1712.html Cite as: [1999] UKEAT 877_98_1712 |
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At the Tribunal | |
On 1 November 1999 | |
Before
THE HONOURABLE MR JUSTICE HOLLAND
MR D CHADWICK
MR P DAWSON OBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MS H MOUNTFIELD (of Counsel) Instructed By: Mr K Woodhouse Sheffield Law Centre Waverly House 10 Joiner Street Sheffield S3 8GW |
For the Respondents | MR I MACCABE (of Counsel) Instructed By: Mr D Wagstaff Messrs David Wagstaff & Co Solicitors 19 The Avenue March Cambridgeshire PE15 9PS |
MR. JUSTICE HOLLAND:
Introduction
The Facts
"7. By the date of that meeting Mr. Arboshe had been absent sick for 91 days and Mr Webster explained that sick leave could be extended only if there was a realistic chance of a return to work. Since it was apparent that Mr. Arboshe could not drive a bus, Mr Webster informed him of the vacancies then existing. One was a clerical post at the company's head office in Ilford, the other was a bus conductor. Mr. Arboshe's first language is not English and, although he has a very good command of the language, he did not consider that his linguistic skills were up to a clerical post. Mr. Arboshe had all the skills necessary to be a bus conductor but he turned down that possibility also. The reason he gave was that he did not feel well enough to carry out the duties of the post of conductor. It was, however, Mr Webster's perception that there existed another reason prompting the rejection of the offer. That was that the conductor post would pay some £85 gross per week less than the existing post of night bus operator.
8. Following the rejection of the only two alternatives available, Mr Webster informed Mr. Arboshe that in the circumstances he had no alternative but to terminate his contract on medical grounds with effect from 5th February 1997, with eight weeks notice being paid in lieu. There was then explained to Mr. Arboshe his right to appeal the decision to dismiss."
"Whilst I note that an Industrial Tribunal application has been lodged on behalf of Mr. Arboshe, this is purely in respect of time limits.
Mr. Arboshe was dismissed on medical grounds (Diabetes) on the 4th February last. He was offered an alternative job as a conductor, which he refused. At the time he was still feeling unwell and his insulin treatment had not reached any equilibrium. Had the offer been made when Mr. Arboshe was feeling better, he feels that he would have accepted the job.
Whilst I am aware that Mr. Arboshe did not exercise his right of appeal at the time, I would ask that consideration be given to a review of Mr. Arboshe's case in order that he can be given further opportunity to discuss the alternative employment of a conductor.
I am given to understand that Mr. Arboshe will be out of the country until 9th May next."
"Currently a vacancy does exist at Bow Garage therefore I suggest that Mr. Arboshe contacts Mr Webster, Operations Manager if he wishes to be considered for employment as a conductor."
The Tribunal
"13 Mr. Arboshe acknowledges that his diabetic condition precluded his employment as a bus driver. His case, in relation to his disability, is that the duty of the employer to make adjustments should have required him to extend the period of sick leave for a period of six months or, alternatively, to propose a suspension of the contract for six months. That would have given him time to adjust to such limitations as would exist by virtue of his insulin dependency and to make a proper and measured appreciation of the employment alternatives open to him."
14 We have considerable sympathy for Mr. Arboshe who, due to the onset of diabetes, has been prevented from carrying out a driving job, an activity which has formed the greater part of his working life. Both in relation to his responsibilities under the Disability Discrimination Act and in exercise of his statutory duty not to dismiss unfairly, the employer should consider the other options to dismissal open to him. Mr. Webster did that and he gave Mr. Arboshe notice of that fact that loss of the driving job was inevitable but that other employment options would be considered. Mr. Arboshe had the assistance of his union representative and we are satisfied that, if asked, Mr. Webster would have made more time available. He had no reason to doubt that Mr. Arboshe's decision, refusing both of the two alternatives put to him, was a settled one and indeed he believed that it owed as much to the loss of pay that would be entailed as to any perceived physical limitations. Mr. Webster's stance can be seen to be justified by Mr. Arboshe's failure to take advantage of the opportunity to appeal and his failure to respond to a subsequent invitation that a vacancy as a bus conductor remained open to him. This was a fair dismissal by reason of capability and Mr. Arboshe was dealt with no less favourably than would have been an employee in a comparable position but who did not have a disability. Accordingly both complaints are dismissed."
The Appeal
"(1) For the purposes of this Part, an employer discriminates against a disabled person if -
(a) for a reason which relates to the disabled persons disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and(b) he cannot show that the treatment is justified."
This Tribunal
a. By reference to Section 5(1) the Respondents did discriminate against Mr. Arboshe by comparison with the working bus driver: he was dismissed.
b. Can the Respondents show that that discriminatory treatment was justified per Section 5(1)(b)? Section 5(3) is pertinent: "..... for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial." Turning to the facts, to the extent that that treatment amounted to stopping Mr. Arboshe working as a bus driver, justification is readily available. It is not in dispute that his condition necessarily means the loss of his PCV licence. That is however not the end of matter. There then comes into play:
"Section 6(1) Where -
(a) any arrangements made by or on behalf of an employer .....
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of an employer to take such steps as it is reasonable in all circumstances of the case, for him to take in order to prevent the arrangements ..... having that effect.
(2) Subsection 1(a) applies only in relation to -
(a) arrangements for determining to whom employment should be offered ....."
It follows that unless the Respondents have taken such steps as are reasonable in all the circumstances of the case to mitigate the impact of the disability based loss of his PCV licence, they will not be able fully to justify the discriminatory treatment. By contrast, if they can show that they have fulfilled the Section 6 duty then they can show justification for the purposes of Section 5(1). Given the 'belt and braces' structure of the Act, the same result flows from:
"Section 5(2)For the purposes of this Part, an employer also discriminates against a disabled person if -
(a) he fails to comply with a Section 6 duty imposed on him in relation to the disabled person; and(b) he cannot show that its failure to comply with that duty is justified."
c. By this route the short point at the heart of the case is as to whether the Respondents can demonstrate fulfilment of their Section 6 duty; and the nub of the appeal is as to whether that point has been or can be resolved on the Tribunal's findings of fact - or whether remission for a rehearing is necessary. Before departing from the law we have not overlooked but see no point in reciting Section 5(4), (5) and Section 6(3). (4), (5) and (7). Suffice it to reiterate that the burden of proof has to be borne by the Respondents; if fulfilled then prima facie there is justification that is "material to the circumstances of the particular case and substantial."
Conclusions
Post Script