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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Khan v Royal Mail Group Plc [2007] UKEAT 0480_06_0512 (5 December 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0480_06_0512.html Cite as: [2007] UKEAT 0480_06_0512, [2007] UKEAT 480_6_512 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR M CLANCY
MR R WORTHINGTON
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | No appearance or representation by or on behalf of the Appellant |
For the Respondent | MR RICHARD GREGORY (Of Counsel) Instructed by: Messrs Hammonds Solicitors 2 Park Lane LEEDS West Yorkshire LS3 1ES |
SUMMARY
DISABILITY DISCRIMINATION
Reasonable adjustments
The Tribunal dismissed a disability discrimination claim, holding that the employers had not failed to make reasonable adjustments to accommodate the employee who suffered from asthma. The EAT dismissed the appeal and held that this was plainly a justified conclusion on the facts.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
The background
"Following your referral I saw this man on 8 January 2004 in Brighton. His asthma is much improved but recently he has been troubled with sinusitis. This is settling and I am happy that he returns to his usual delivery work on 12 January without restriction. Asthma is a chronic medical condition for which action under the DDA could be appropriate. At present, none is needed. In our conversation he asked if there was any administrative/computer work available in Brighton or Chesterfield. He says he has previously worked in this field. I do not know how he finds out about vacancies in these areas. No further appointment is required as a routine with EHS."
The law
"3A(1)For the purposes of this Part, a person discriminates against a disabled person if …
(a) for a reason which relates to the disabled person's 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 in question is justified."
"Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."
"Where –
i. a provision, criterion or practice applied by or on behalf of an employer, or
ii. any physical feature of premises occupied by the employer,
places 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 provision, criterion or practice, or feature, having that effect."
"If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty."
The Tribunal's analysis.
"2. Examples of such treatment include, in summary:
i. Refusal by Mr Beard of Mr Khan's requests to be put on light/indoor duties while allowing others to do so;
ii. Refusal by Mr Beard to refer Mr Khan to EHS and delay of referral until August 2003;
iii. Refusal by Mr Beard to accept Mr Khan's concern that the vents he was working under aggravated his asthma;
iv. Mr Beard giving Mr Khan an unjustified first stage disciplinary warning;
v. Failure to pay Mr Khan while he was unable to come to work;
vi. Dismissal.
- Examples of such treatment include, in summary:
a. The examples at paragraph 2;
b. Failure to alter Mr Khan's hours of work;
c. Failure to assign Mr Khan to a different place of work;
d. Failure to train Mr Khan to allow him to move to a new area;
e. Failure to provide other supervision and support
And where old s5(2) applies was that failure justified under s5(4)?"
"In respect of the failure to alter Mr Khan's hours of work, the Tribunal note that the Royal Mail, through Mr Singh and Mr Waterman, offered Mr Khan the opportunity to return to work on a rehabilitation basis. Mr Khan's response was a simple refusal. Although Mr Khan stated in an e-mail dated 29 November 2004, that he would be willing to return to work once he was recovered, the Tribunal is satisfied that, at that stage, Mr Khan had no real intention of returning to work with the Royal Mail.
Mr Khan complains of a failure to assign him to a different place of work. The Tribunal rejects this complaint. Within the Brighton office it was not possible to assign Mr Khan to work in any area where he would not have been in contact with the vents which apparently caused him problems. There were, in any event, no vacancies in any administrative roles for him to carry out in the area. He was offered the opportunity of working in other areas in other offices. He refused those offers. The Tribunal therefore rejects that part of Mr Khan's complaint.
Mr Khan complains of a failure to train him and allow him to move to a new area. We have heard evidence that Royal Mail was cutting jobs. There were no administrative jobs available in the Brighton office. There were a limited number of roles to be performed of an administrative nature in the Book Room. There were no vacancies available in the front office. In any event, the front office would have meant that the Claimant was still in contact with the vents. The Tribunal is not satisfied that the Royal Mail did fail to allow Mr Khan to move to a new area. We do not consider that it would have been reasonable to require Royal Mail to train Mr Khan in respect of another role, which as yet remains unidentified, in some other part of their organisation."
The grounds of appeal
The first ground of appeal.
The second ground of appeal.
"There is a close relationship between (disability related discrimination and failure to make reasonable adjustments form of discrimination). Section3A(6) provides that treatment can only be justified under subsection (1) if it would have been justified even if the employer had complied with any duty to make reasonable adjustments. It follows that logically it makes sense to consider the question of reasonable adjustment disability discrimination first. This was made clear by Lord Rodger of Earlsferry in the case of Archibold v Fife Council [2004] ICR 954, para 32."
The submission here is that the Tribunal failed to adopt that approach. They considered the question of disability related discrimination prior to focusing on the issue of reasonable adjustment.
The third ground of appeal.
Disposal