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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Campbell v. Department of Social Security [1999] UKEAT 442_99_2311 (23 November 1999) URL: https://www.bailii.org/uk/cases/UKEAT/1999/442_99_2311.html Cite as: [1999] UKEAT 442_99_2311 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LINDSAY
MR W MORRIS
MRS D M PALMER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
PRELIMINARY HEARING
Revised
For the Appellant | THE APPELLANT IN PERSON WITH THE ASSISTANCE OF MR HAINEY (OF COUNSEL) UNDER ELAAS |
Mr Justice Lindsay (President): We have before us, as a preliminary hearing, the appeal of Mrs Heather Campbell in the matter Campbell v the Department of Social Security.
"Mrs Croft telephoned Mrs Campbell on 26th June and suggested that she should return to work on a part time basis. Mrs Campbell indicated that this was not possible because she was unable to sit for longer than half an hour but when she was able to return she would like to go back to the Wandsworth Office but would also consider Battersea, Balham or Streatham".
"Dr Lavanchy of the Occupational Health Department certified Mrs Campbell as suitable for medical retirement on the grounds that she was suffering the disabling effects of somatisation. The Central Personnel Department wrote to Mrs Campbell on 23rd December 1997 advising her that her application to retire on grounds of health had been approved and that 31st January 1998 would be regarded as her last day of service and that sick pay pension rate would continue until that date. Thereafter there was no further correspondence".
"Mrs Campbell complains that the Respondent failed to make reasonable adjustments by transferring her to the Wimbledon Office or, latterly, to the Wandsworth Office to avoid the need for her to travel by train to Sutton, a journey which is exacerbated her allergies. In reaching our decision we noted that there were no vacancies at any relevant time at the Wimbledon, Wandsworth or indeed Balham, Streatham or Battersea Offices of the Respondent. It was clear to the Tribunal that Mrs Campbell was at a disadvantage in travelling to Sutton in comparison with people who did not suffer from allergies".
They continued in paragraph 30:-
"We next had to decide whether the Respondent had taken such steps as were reasonable in all the circumstances to prevent Mrs Campbell being disadvantaged. The only relevant provision of section 6(3) is section 6(3)(c) which refers to "transferring her to fill an existing vacancy". There were no vacancies.
We considered the provisions of paragraph 4.22 of the Code of Practice even if their had been vacancies, a transfer would have involved little benefit to Mrs Campbell because she was unfit to work at all material times".
Accordingly, what they decided in relation to disability discrimination was this:
"Nonetheless, although there is an obligation upon the Respondent to make reasonable adjustments, the obligation only extends to transferring Mrs Campbell to fill an existing vacancy and there were no such vacancies and any such adjustment would have had little benefit on Mrs Campbell as she was unable to work. It is therefore the unanimous decision of the Tribunal that the Respondent's have taken all reasonable steps and accordingly Mrs Campbell's complaint of disability discrimination fails".
"On 21st November 1997, Mrs Campbell's GP wrote to Debbie Allcock supporting ill health retirement and reporting that the psychiatrist to whom Mrs Campbell had been referred believed that it was quite unlikely that Mrs Campbell would be able to return to her full time employment which she had previously held"
Mrs Campbell herself had said, as it is held in paragraph 22:-
"Heather advised that she had started treatment for ME and asked about her transfer request but stressed that she still felt to ill to even take up a position PTMG next door".
"assigning him to a different place of work"
The Act does not require other persons to be dismissed in order to create vacancies and it must be remembered that section 6(7) provides, broadly speaking, that the disabled person cannot require to be treated more favourably than others.
As to that we have the Chairman's notes which, at our page 18, say on the point as follows:
"As Mrs Campbell correctly points out, when Mrs Campbell produced documents that she said the Respondent had placed on her table the previous day on the Wednesday, the chairman pointed out that the Tribunal did not have copies of these documents. Mrs Campbell did not seek to present the documents to the Tribunal. Mrs Campbell told the Tribunal that the documents had been placed on the table by the Respondent. The Respondent's representative disputed this. The Chairman pointed out that the Tribunal did not have these documents and without them, the matter could not be taken further. Mrs Campbell did not seek to present the papers to the Tribunal and when the Chairman suggested that she should continue with her submissions, she did so. The paragraph in the Affidavit relates to papers that the Chairman has no knowledge of, as the Tribunal will show the documents, and Mrs Campbell then continued her submissions. The Chairman could not form a view on the documents as she did not see them".
"There is no evidence before this Tribunal of any breach of Mrs Campbell's contract of employment by the Respondents. If there was such a breach Mrs Campbell has waived it by applying for medical retirement and appealing against the refusal of medical retirement. Indeed, she never appealed against the decision that she should be medically retired, if indeed, that was then her position".
A little later the Tribunal continued:- "Nonetheless, there is no evidence of any breach of contract of employment by the Respondent".
We also discussed which office she would like to transfer to. She said that she would like to go to the Wandsworth Office but would also consider Battersea and Balham or Streatham. I contacted the Personnel Section covering these offices during July but was informed that there no vacancies and staff were, in fact, being offered flexible early retirement. This was due to a surplus of staff at that time.
On the 28th July 1997 I telephoned Heather to inform her that I had made enquiries regarding transfer and there were no vacancies in the offices to which she wished to transfer .
Its is my opinion following the observations and discussion with Heather that she is unlikely to be able to return to work in the foreseeable future. Heather now agrees with this and appeared realistic about her future prospects.
Always my doctor and consultant said that I was fit for at least part time work as long as my disability was accommodated first, ie., I got a transfer near to my home.
But, in consequence of that, so long as no suitable transfer could be made, and none could, Mrs Campbell, on her own argument, was unable to work and, in any event, we have already cited the Occupational Nurses' view that seems to go beyond that.
"Prior to the hearing, a request by Mrs Campbell for a witness order against Dame Ann Bowtell was refused by the duty Chairman who was not Miss Lewzey. At the beginning of the first day of the hearing, Mrs Campbell renewed her request for a witness order against Dame Ann Bowtell who is the permanent secretary of the DSS and the Tribunal refused to grant a witness order against Dame Ann Bowtell as it was satisfied that she would not be able to give evidence on matters that were relevant to the issues before the Tribunal. This was not a matter of bias towards the Respondent and against Mr Campbell".
So that matter is dealt with and we cannot say that there is an error of law involved in that area and, of course, there was no appeal against that refusal of the witness summons at the time.
Arrangements had been made at the Tribunal to facilitate her condition during the hearing (including a mattress for her to lay on in the court room), neither Mrs Campbell nor her carer made any complaints about the lack of facilities, or that the conduct of the hearing was having an adverse effect on the health of the Applicant.
He continues:
I also take great exception that this Applicant makes such serious and unfounded allegations against the Tribunal Chairman who showed the Applicant courtesy, concern as to her disability and gave her the advice and support normally given to Applicants who are not represented.
Mr Foskett supplies a detailed time timetable for the hearing and he adds:
The Chairman also advised her that should she need a rest/break at any time, she must tell us, and it would be granted.
He says:
I believe that it was between this period (2.00 pm and 3.45 pm) that I noticed Mrs Campbell had closed her eyes. I brought this to the attention of the Chairman, who immediately asked Mrs Campbell if she was alright; she replied that she was, and that she often concentrated with her eyes closed, also if Mrs MacDonald felt that she was overdoing it she would advise her to ask for a break.
A little later:
Day 3. The Chairman asked Mrs Campbell if she was alright to continue. She said that she was.
Both sides summed up their case. Mrs Campbell at the end of her summing up addressed us by thanking us and expressing the view that the Tribunal hearing was a good therapy for ME
and finally:
At all stages of the hearing The Chairman was very considerate and helpful, at no time was she rude or shouting at the Applicant, at no time did she favour the Respondent to the Applicant.