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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> London Borough of Hammersmith & Fulham v. Farnsworth [1999] UKEAT 461_99_3006 (30 June 1999) URL: https://www.bailii.org/uk/cases/UKEAT/1999/461_99_3006.html Cite as: [1999] UKEAT 461_99_3006 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE JOHN ALTMAN
MR A E R MANNERS
MR P M SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellants | KAREN TICKNER (of Counsel) London Borough of Hammersmith & Fulham Legal Services Division Town Hall King Street Hammersmith W6 9JU |
JUDGE JOHN ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London North, over three days in December and January 1998 and 1999, in which the unanimous decision of the Tribunal was that the Respondent had been discriminated against by reason of her disability and the matter of compensation was adjourned.
"In view of her medical history I am concerned that she may be liable to further recurrences in the future. If such a recurrence were to occur her performance and attendance at work could be affected."
As a result, the Appellant, through their Personnel Officer, Ms Findlay, wrote to the Respondent:
"Unfortunately, I have been unable to obtain satisfactory medical clearance and it is with regret that I am now withdrawing the provisional offer of appointment."
"We then considered whether both Respondents were aware of Ms Farnsworth's disability."
The ground of appeal is that the Tribunal erred in finding in effect, that the requisite knowledge was actual or constructive. In paragraph 22 after reviewing the evidence, the Tribunal found:
"We find, as a fact on the evidence, that both Respondents either knew or should have known, upon making proper enquiries, of Ms Farnsworth's disability."
They dealt with the Respondents separately. Dr Cooper they found had the medical history, and knew of the hospital treatments over the years, and found as a fact, in paragraph 20, that Dr Cooper was fully aware of the disability.
"In any event [the report from Dr Cooper to them] clearly refers to a possible medical problem."
"There was no reason to presume that Ms Farnsworth's attendance would not have been first class"
and in paragraph 23, which preceded it, so far as the Local Authority was concerned, the Tribunal found that there was no reason to suppose that her attendance would be poor. It is suggested that there was no evidence to support that. But it seems to us that that is simply a form of words and would involve a too minute attack upon the choice of language if it formed the basis of an argument on the point of law. It is quite clear at the beginning of paragraph 26 that the Employment Tribunal asked itself the correct question in the following terms:
"We considered whether the first Respondent was justified in withdrawing the offer of employment to Ms Farnsworth."
And we find that they went on to make a finding in appropriate terms:
"We do not find, as a fact, that they were so justified."
"Both respondents made the assumption that Ms Farnsworth's attendance would be poor."
And later on in the paragraph they said:
"The assumption as to her poor attendance at work would not have been made if she had been an applicant with a good past medical health history."