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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ocs Cleaning Midlands & North Ltd v. Rivers [2001] UKEAT 972_00_1601 (16 January 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/972_00_1601.html Cite as: [2001] UKEAT 972_00_1601, [2001] UKEAT 972__1601

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APPEARANCES

 

For the Appellant	MR C A BARR Group Human Resources Manager In person


 


JUDGE COLLINS

1. This is the preliminary hearing of an appeal against the decision of an Emploment Tribunal sitting at Shrewsbury whose extended reasons were promulgated on 10 July 2000.after a hearing which had taken place on 13, 14 and 22 June 2000. The decision of the Tribunal was that the Respondent Mrs Rivers had been dismissed by reason of redundancy and that the dismissal was unfair in all the circumstances in the case.
2. They held that she had not been dismissed by reason of her disability which was deafness but that she had been discriminated against because of her disability in relation to a meeting which had taken place on 22 September 1999 with the Manager Mrs Marshall for the purposes of discussing the redundancy situation.
3. It has been intimated to us this morning that notice has been given of a cross appeal. Mr Cawley has been present on behalf of the Respondent as an observer and the cross appeal is directed to the question of whether or not the Tribunal was correct in deciding that Mrs Rivers was not dismissed by reason of her disability. But we have not had to consider that this morning.
4. Mrs Rivers was employed as an administrator by OCS Cleaning Midlands & North Ltd; her employment had commenced in 1974. In 1999 there is no doubt that there was a redundancy situation, and on 22 September a meeting took place. The Respondent was employed at the Stoke on Trent Office and was asked to attend a meeting with Mrs Marshall, the regional director at Manchester and was accompanied to that meeting by Mr Evans who was the Branch service Manager at Stoke.
5. Unfortunately, it appears that Mr Evans was not asked to sit in on that meeting, which would have been a sensible course. Also, although Mr Barr, the Group Personnel Manager who has conducted this case before us as he conducted it before the Tribunal was actually present at the Manchester office shortly before this meeting, he was not invited to take part in the meeting with Mrs Rivers or asked to give Mrs Marshall any advice.
6. The meeting took place and according to the evidence of Mr Evans which was given to the Tribunal, and which is summarised in his statement he drove Mrs Rivers back to Stoke after the meeting. She openly discussed the contents of the meeting and he believed that she was fully aware of the contents.
7. Of course, as a matter of fact, it is difficult to know whether Mr Evans' belief that she was fully aware of the contents of the meeting can be correct unless Mr Evans also knew what Mrs Marshall was saying what had happened at the meeting, and what Mrs Rivers had understood. Because of her hearing impairment Mr Evans cannot possibly be secure in his belief that her understanding was correct.
8. But the ground of appeal in relation to this particular point is that the Tribunal nowhere discussed Mr Evans' evidence or give any reasons for rejecting it. But what they did decide at paragraph 9 of their reasons was whether the arrangements made by Mrs Marshall for the meeting of 22 September placed Mrs Rivers at a substantial disadvantage in comparison with persons who were not disabled. And they say this:

"Her ability to understand what was being communicated was severely compromised. Mrs Marshall knew the circumstances of the applicant's condition at the time. It should have been obvious to her that she could not simply conduct the meeting for all practical purposes in the same way as she conducted a meeting with someone who could hear her properly without placing the applicant at a severe disadvantage."

9. And they set out a number of very simple ways in which Mrs Marshall could have redressed the disadvantage which Mrs Rivers was under. But they say:

"The only adjustment she made was to sit rather closer to the Applicant than she might otherwise have done."

10. The Tribunal took a very dim view of the way Mrs Marshall responded to what she knew was a serious disability on the part of Mrs Rivers. The point that is made to us is that Mrs Marshall thought she had done enough and that the Tribunal failed to take account of the evidence of Mr Evans. So far as Mrs Marshall's views are concerned the Tribunal appears to have rejected her subjective view as to the steps which she took as being reasonable. They disagreed and thought they were unreasonable.
11. The conduct of Mrs Marshall during the meeting cannot be judged by evidence given afterwards of what Mr Evans thought Mrs Rivers had understood and has no relevance whatsoever to the reasonableness of Mrs Marshall's adjustments judged at the outset of or during the meeting. Therefore it does not surprise us that the Tribunal made no mention of it. In retrospect it might have been better if they had mentioned the evidence of Mr Evans and explained why it did not affect their ruling.
12. In our judgment the decision of the Tribunal on the disability discrimination point was a question of fact and there is no reason to suppose they misdirected themselves to the extent that a point of law can possibly be said to arise.
13. The next point which is raised relates to the unfairness of the dismissal. On 29 September, a week after the meeting, Mrs Rivers wrote to Mrs Marshall and included in her letter the following:

"I find I am unable to accept your offer of working in my current role for this Branch on a part-time basis and very, very reluctantly have to accept the redundancy as offered."

14. Mrs Marshall replied on 30 September and appears effectively to have accepted the letter from Mrs Rivers as bringing the matter to an end. The Tribunal took a different view. They said in paragraph 10 of their reasons that at the date of Mrs Marshall's letter, 30 September, there was still 12 weeks to go before the Applicant would leave. They took the view that Mrs Marshall simply did not comply with a reasonable obligation to continue searching for alternative full time employment for Mrs Rivers. They say:

"Mrs Marshall's contact with the Applicant concerning her redundancy effectively concluded with her letter of 30 September. The search for alternative work which Mrs Marshall did conduct appeared to be perfunctory in the extreme. She spoke to people with whom she happened to have immediate contact. She put nothing in writing. She did not ask the Applicant to set out the kind of work she would be prepared to contemplate and/or to outline her skills and experience, or to identify the areas to which she would and would not consider relocating."

15. It seems to us it was perfectly within the Tribunal's realm of decision making to conclude that Mrs Marshall had not taken steps which any reasonable employer would have taken to accommodate an employee who had been with the company for 25 years. And it does not seem to us that there is any material on which we can possibly conclude that the Tribunal had misdirected themselves in law by failing to accept that Mrs Rivers' letter of 29 September had wrapped up the redundancy point. It plainly had not wrapped up the redundancy in the Tribunal's view and in our judgement that was a question of fact and one to which they were entitled to come.
16. So, in our judgment there is no substance whatsoever in this appeal, no reasonably arguable point of law and we dismiss it.