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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Groves v. Astrazeneca UK Ltd [2004] UKEAT 0232_04_2406 (24 June 2004) URL: https://www.bailii.org/uk/cases/UKEAT/2004/0232_04_2406.html Cite as: [2004] UKEAT 0232_04_2406, [2004] UKEAT 232_4_2406 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE BEATSON
MR B BEYNON
MRS J M MATTHIAS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR P DRAYCOTT (of Counsel) Instructed by: Messrs Thompsons Solicitors Acresfield 8 Exchange Street Manchester M2 7HA |
For the Respondent | MR N GRUNDY (of Counsel) Instructed by: Astrazeneca UK Ltd Legal Services Alderley House Alderley Park Macclesfield Cheshire SK10 4TF |
SUMMARY
Disability Discrimination
Insufficiency of reasons for conclusion that dismissal was justified under section 5 (1) (b) of the Disability Discrimination Act 1995. Whether employer was in breach of duty to assess Appellant as part of duty under section 6 DDA. Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 556 considered and distinguished.
THE HONOURABLE MR JUSTICE BEATSON
(1) rejecting his reasonable adjustments claim under the Disability Discrimination Act 1995;
(2) rejecting the disability claim itself; and
(3) limiting the Appellant's compensatory period to 6 months.
"…with a lot of encouragement, this gentleman could get fit enough to return to the workplace but the whole situation at work is obviously very difficult at present and is quite adversarial."
"…he could make a good recovery, regain his confidence and return to work. With this process even after injections is still likely to take in order of three months."
He also stated that:
"The longer he is on a waiting list, the longer he is out of work, the less likely his chance of returning to his former employment."
Dr Shackleton informed the Respondent of this prognosis.
The Reasonable Adjustments Appeal
"(1) Where -
(a) any arrangements made by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect."
"55 The parties agree and the Tribunal accepts that the applicant was, at the relevant time, a disabled person for the purposes of the DDA. Because of his disability, the applicant was at a substantial disadvantage in comparison with persons who are not disabled so that the respondent owed a duty to the applicant in accordance with subsections 6(1) and (2) of the DDA. The Tribunal therefore considered the steps that the respondent took to determine whether the respondent complied with its duty under section 6(1) of the DDA. In doing so, the Tribunal had regard to the matters set out in subsection 6(4) of the DDA and the related Code of Practice.
56. In relation to the alleged acts of discrimination during the applicant's employment with the respondent, these related to the failure of the respondent to make reasonable adjustments to enable the applicant's return to work or to continue in employment in any event. The respondent maintained contact with the applicant during his absence although these contacts were not always appreciated by the applicant. The respondent was concerned to ascertain the applicant's medical condition and the prospects for his return to work. Transport to and from meetings with the respondent's doctor were arranged by the respondent as the applicant had difficulty in travelling. However, it was not presented with any medical evidence to suggest that the applicant was fit for work whilst still in the employment of the respondent or the type of work that he might have been able to undertake if he had subsequently been fit to undertake any work. There were references to the possibility of the applicant working from home but these were not supported by medical evidence. In any event, the type of work that the applicant might have undertaken would have required regular visits to the Macclesfield site to check on processes and the procedures that were being followed. In these circumstances, the Tribunal did not consider that there was any adjustment that could be considered that could enable the applicant to undertake work of any type in any location. The Tribunal therefore finds that the respondent did not fail to comply with its duty under Section 6 of the DDA."
"26. The applicant saw Dr Shackleton on 8 March, 2002, and they discussed the possibility of the applicant returning to work on reduced hours. The applicant believed that he could work at a computer but Dr Shackleton did not accept this and informed Mr Jarvis that the applicant was "unfit for any form of employment". Dr Shackleton suggested that a further specialist option might be helpful. The applicant quoted Dr Shackleton as referring to him as being 'useless' in the context of his ability to work and the applicant took this to mean that Dr Shackleton did not consider that he was able to undertake any form of work."
"52. It is the unanimous finding of the Tribunal that the applicant was dismissed by the respondent on the ground of capability. The Tribunal also unanimously finds that the dismissal was unfair. However, the Tribunal further unanimously finds that if the applicant had been treated unfairly he would have been dismissed after a further period of six months in any event. At the time when the applicant was dismissed there was not any evidence to show when, if at all, the applicant would be fit to return to work… The decision to dismiss the applicant was taken in accordance with the appropriate policy operated by the respondent in relation to sickness absence. However, at the time of his dismissal, there were indications that the applicant might be fit to return to work after about six months and he was just starting a course of treatment. Whilst the respondent considered a second opinion was needed in respect of the applicant's medical condition, the report from the additional consultant did not include a prognosis. The Tribunal therefore considers that it was unreasonable to dismiss the applicant on the date when he was dismissed and that an employer acting reasonably would have allowed a further six months to elapse which would have allowed for a reassessment of the applicant's medical condition, including an assessment of the effect of the treatment, and time to consider the consultant's prognosis. Had this happened, the Tribunal unanimously finds that the applicant's condition would not have been found to have improved sufficiently that he would have been classed as fit to return to work and his dismissal would have occurred at that time."
The Disability Discrimination Appeal
"59. With regard to section 5 (1) of DDA, the Tribunal unanimously finds that the applicant was considered for dismissal because of or for a reason related to his disability. However, the Tribunal also unanimously finds that the respondent did not treat the applicant, for a reason which relates to his disability, less favourably than it treats or would treat others to whom that reason does not or would not apply. Whilst the dismissal of the applicant at the time that he was dismissed was unfair, there was no evidence to suggest that the respondent would have treated anyone else, whether suffering from a disability or not, who was subject to the same attendance policy as the applicant, in any different fashion to the manner in which it treated the applicant. Obviously this disregards those employees of the respondent who had the benefit of permanent health insurance as they are not considered by the Tribunal to be relevant in the circumstances of this case. The applicant was unfit for work and was dismissed, as the respondent saw it, in accordance with the respondent's policy and the respondent would have treated any person without a disability but unfit for work in the same manner. In any event, the Tribunal unanimously finds that the eventual dismissal of the applicant was capable of being justified and fair."
[Discussion]