Susan Archibald V. Fife Council
| Jurisdiction | Scotland |
| Judge | Lord Hamilton,Lord Macfadyen,Lord McCluskey |
| Date | 09 December 2003 |
| Docket Number | XA12/03 |
| Court | Court of Session |
| Published date | 09 December 2003 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION XA12/03 | |
| Lord Hamilton Lord Macfadyen Lord McCluskey
| OPINION OF LORD HAMILTON in Appeal to the Court of Session under section 37 of The Employment Tribunals Act 1996 by SUSAN ARCHIBALD Appellant; against FIFE COUNCIL Respondents: _______ |
Act: O'Brien, QC, D O'Carroll; Drummond Miller, W.S.
Act: O'Neill, QC, Sharpe; P Robertson (for Fife Council)
9 December 2003
Background
[1]The appellant was employed by the respondents as a road sweeper Grade 1 throughout the continuous period from May 1997 to 12 March 2001. She was engaged initially on a six-month seasonal contract but thereafter on a full-time basis as one of some 150 manual workers engaged in refuse collection, the cleaning of public toilets, road sweeping and similar tasks. In April 1999 the appellant had a spinal anaesthetic for a minor surgical procedure which resulted in a very rare complication of severe pain over her heels; as a result she was unable to walk. This medical misfortune rendered her unfit to continue her work as a road sweeper.
[2]In accordance with their Attendance Management Guidelines the respondents sought and obtained medical advice as to the prospects of the appellant being fit to return to work. Steps were also taken to explore whether suitable alternative employment might be offered to her by them, including in other departments within their organisation. With the assistance of information provided by officials of the respondents the appellant over a period of many months applied for over 100 alternative posts within the respondents' various departments. In none of these applications was she successful. Her principal difficulties during that period were that, initially being confined to a wheelchair and later requiring sticks to assist her mobility, she was unable to meet the physical demands of the posts applied for or the environmental constraints in which they were to be performed. In addition, as a road sweeper, she was on industrial Grade 1 and all the alternative posts for which she applied were posts on which the lowest grade (known as APT&C Grade 1) was, in terms of basic salary, marginally higher than industrial Grade 1. The result was that in terms of the respondents' redeployment policy the appellant invariably required to undertake competitive interviews. A further problem which she apparently faced was that, coming from an industrial background and attempting to obtain alternative work in an office environment, she received (or in any event perceived that she received) less favourable treatment at interview, notwithstanding that she had during her absence from work undertaken a number of computer and administration based courses in an attempt to equip herself with the appropriate skills to work in an office environment.
[3]Meantime the respondents continued to seek and obtain information about the appellant's medical position and her fitness for work. By letter dated 10 July 2000 it was reported to them that she remained unfit for work as a road sweeper but that she was fit for work of a sedentary nature; the view was expressed that she was a disabled person within the meaning of the Disability Discrimination Act 1995. The search for suitable alternative employment continued. At one of several meetings concerned with furthering that search, the appellant's Trade Union representative expressed the view that the appellant ought not to have to go through competitive interviews. This view, it seems, was not shared by the respondents. Ultimately at a meeting held on 12 March 2001 the respondents' responsible officer expressed the view that, on the basis of medical advice obtained, the appellant would be unable to return to work as a road sweeper in the foreseeable future, that the respondents' redeployment procedure had been exhausted and that, having regard to the length of the appellant's absence and the needs of the service, he now had little alternative other than to dismiss her on the grounds of capability. By letter dated 19 March 2001 that position was confirmed and the appellant advised that her employment with the respondents would terminate with effect from 12 March 2001. She was also advised that she had a right of appeal against that decision. She exercised that right but the appellate body (a sub-committee of local councillors) refused her appeal. She subsequently obtained, on a part-time basis, other posts with the respondents.
Proceedings before the employment tribunal
[4]The appellant thereafter presented to an employment tribunal a complaint in which she maintained (1) that she had been unfairly dismissed by the respondents and (2) that, as a disabled person within the meaning of the Disability Discrimination Act 1995, she had been discriminated against by them. Her contention that she had been unfairly dismissed was rejected by the employment tribunal; that aspect of her complaint was not pursued further and nothing more need be said about it. Her contention that she had been unlawfully discriminated against by the respondents was stated, in the relative complaint form, as being "in the way that they sought redeployment opportunities for me". That was particularised before the employment tribunal as a complaint that she should not have been in competition for alternative employment with the respondents if she was able to show that she was able to perform the duties and responsibilities of the alternative post in question.
[5]Before the employment tribunal the respondents conceded that the appellant was a disabled person within the meaning of Section 1 of the 1995 Act, in respect that she had a physical impairment which made it impossible for her to carry out her work as a road sweeper. The appellant did not contend that she had been unlawfully discriminated against within the meaning of section 4(2) (as read with section 5(1)) of the Act by the respondents dismissing her; although she had been treated, for a reason relating to her disability, less favourably than others who were not so disabled, it was not disputed that that treatment was in all the circumstances justified. Her contention was that the discrimination which had occurred fell within that described in section 5(2), namely, that the respondents had failed to comply with a section 6 duty imposed upon them in relation to the appellant and they could not show that their failure to comply with that duty was justified. The employment tribunal, having considered various authorities (including Morse v Wiltshire County Council [1998] IRLR 352) and reviewed the evidence before them, concluded in effect that the respondents had not failed to comply with any section 6 duty imposed on them and, in any event, that any such failure was justified. They said -
"As we have said, it was the [appellant's] principal complaint in relation to her case under the 1995 Act that the respondents had failed to make reasonable adjustments for her in terms of section 6 of that Act. That, as Morse says, requires the tribunal to consider whether the respondents could reasonably have taken any of the steps set out in paragraphs (a) to (l) of section 6(3) of the 1995 Act and the only step which was argued here was that set out in paragraph (c) of section 6(3) namely 'transferring him to fill an existing vacancy ...'".
The employment tribunal then summarised the appellant's attempts to obtain alternative employment and continued:-
"During the course of her answers to the tribunal, the [appellant] quite fairly indicated that when she failed to obtain any of the sedentary posts for which she applied, she did not think that it was anything to do with her disability but rather that 'they' did not look past the fact that she was a road sweeper. As we understood the argument made on the [appellant's] part it was to the effect that as a disabled person, she should not have been required to undertake competitive interviews but section 6(7) of the 1995 Act provides, reading short, that:
'... nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others.'
and, as we have said, the respondents' policy was that if applying for a job at a higher grade than the person's existing grade, then competitive interviews were required. Since we were not addressed, on behalf of the [appellant] on any of the other steps set out in section 6(3)(a) to (l), we do not intend to consider them except simply to observe that on the facts before us, there were no other steps, with the exception of the possibility of transferring the [appellant] into another post, which the respondents could reasonably have made in relation to the [appellant].
Finally, if, contrary to the views we have just expressed, these respondents did indeed fail to comply with the section 6 duty, we then require to consider whether the respondents have established that their failure is justified which, on the basis of what Morse says, means deciding whether it has been shown that the reason for the failure to comply is both material to the circumstances of the particular case and substantial in accordance with section 5(2) and (4). We have set out earlier the observations of the Employment Appeal Tribunal in that regard in [various authorities] and had we required to reach this stage, which we do not, we would have been satisfied that the respondents' failure to take the step of transferring the [appellant] to fill an existing vacancy was justified on the basis of the policy of competition to which we have earlier referred. In all these circumstances, we do not consider that the respondents have unlawfully discriminated against the [appellant] by reason of her disability and, since we have already held that the [appellant's] complaint of unfair dismissal fails, this whole application falls to be dismissed".
Proceedings before the Employment Appeal Tribunal
[6]The appellant...
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