Lane Group plc and anor v Farmiloe EAT/0352/03/DA
An employer’s decision to dismiss a disabled person, who as a result of a skin condition was unable to wear protective footwear, was not discriminatory. The dismissal was an inevitable consequence of the employer’s absolute duty to comply with health and safety legislation.
Facts: Mr Farmiloe (“F”) worked as a warehouseman for Lane Group plc (“LGP”). F suffered from psoriasis. In 1996, following a risk assessment, LGP adopted a policy whereby everyone working in the warehouse was required to wear safety footwear. Due to his medical condition, F could not wear ordinary safety footwear. An exception was therefore made – F was allowed to wear his own shoes. In 2001, a further health and safety investigation was carried out at LGP’s premises by North Somerset Council (“NSC”) during the course of which NSC’s Senior Health and Safety Officer, Ms Bartlett (“B”) learned that F did not wear either protective footwear or headwear due to his skin condition. B told LGP that this exception could not continue. LGP in turn told F that he must wear protective footwear in the warehouse, otherwise he could not continue working in that area. LGP consulted its occupational health specialist to assess whether appropriate footwear could be provided so as to comply with LGP’s health and safety policy whilst not making F’s condition any worse. Occupational health advised that the standard safety footwear was not appropriate for F, that he required special protective shoes and, if the matter could not be resolved, alternative employment should be sought. Attempts to find suitable footwear were exhausted. No alternative positions within the organisation existed which did not require the wearing of personal protective equipment (“PPE”). F was dismissed with effect from 22 March 2001. He appealed against his dismissal, contending that: (1) LGP should make adjustments to its health and safety policy; and (2) it should approach NSC to obtain an exception in special cases. LGP indeed approached NSC – its response was that even if LGP had no policy requiring PPE to be worn in the warehouse (which it did), it would carry out an inspection. If it determined there was a risk of damage to feet, it could serve a notice requiring that appropriate PPE be worn. Further, any employee refusing to wear PPE could be guilty of an offence, there were no appropriate provisions under the relevant health and safety legislation whereby the employee or employer could “opt out”, an employee’s medical condition could not exclude the use of PPE, and if PPE could not be worn by an employee, he or she could not work in the relevant area. F’s appeal against his dismissal was therefore unsuccessful. F complained to an employment tribunal of unfair dismissal against LGP and of disability discrimination against both LGP and NSC. The employment tribunal failed to make a finding on either unfair dismissal or on the claim brought under section 5(1) of the Disability Discrimination Act 1995 (“the DDA”). However, it upheld F’s claim under section 5(2) of the DDA, stating that “the object of health and safety legislation is to protect individuals and not to discriminate against them”. Its principal finding was that LGP ought to have carried out an individual risk assessment in relation to F, balancing the risk involved in his not wearing PPE against the disadvantage he would suffer by losing his job – in so failing there had been a failure to make reasonable adjustments under section 6 of the DDA. It also found that NSC had aided LGP to do an unlawful act. Both LGP and NSC appealed to the EAT.
Decision: The EAT found that the sole object of health and safety legislation is to protect individuals’ health and safety. Analysing the PPE Regulations, it was clear that these were relevant only where the risk to health and safety could not be adequately controlled by other means. The evidence from the tribunal had shown that working in the warehouse involved a risk of injury to feet that could not be adequately controlled by other means. As such, the PPE Regulations imposed an absolute duty on F to ensure that suitable PPE was provided and to take all reasonable steps to ensure that it was being used. The EAT rejected the tribunal’s finding that the employer was obliged to carry out an individual risk assessment. The PPE Regulations made no provision for the balancing exercise which had been referred to by the tribunal. While the employer’s duty to make reasonable adjustments applied – this entailed attempting to find suitable PPE for F, and if that was not practicable, looking for suitable alternative employment for him – LGP had undertaken both of these tasks and had found that neither option was possible. Accordingly, the only option remaining to LGP was to dismiss F. Given that there were no further adjustments that could have been made by LGP, section 5(2) of the DDA had not been breached. The EAT further held that section 5(1) of the DDA had not been breached - section 59 of the DDA specifically states that acts done in pursuance of any other enactment or statutory instrument , such as health and safety legislation, are not unlawful under the DDA. In any event, the EAT found that the employer had fulfilled the justification defence under both section 5(1)(b) and 5(2)(b) - it had to comply with the requirements of health and safety legislation and the requirements of NSC. Finally, the EAT considered whether there was a common law duty to dismiss an employee who wished to carry on working notwithstanding that his working conditions were, to the employer’s knowledge, making the employee’s medical condition worse. The EAT referred to the decision in Coxall v Goodyear Great Britain [2002] IRLR 742, where it was held that there may be cases where an employer is under a duty at law to dismiss the employee in order to protect him or her from danger. The EAT went further, finding that where an employer cannot comply with the PPE Regulations, it will be in breach of its common law duty of care if it continues to employ that individual in breach of the Regulations. In these circumstances, assuming the employer has explored all other avenues, it will be obliged to dismiss him or her. The EAT therefore dismissed F’s complaint of disability discrimination against LGP under both sections 5(1) and 5(2) of the DDA. As NSC could not therefore be liable to F under section 57(1) of the DDA, the case against it was also dismissed. The complaint of unfair dismissal was remitted to a fresh tribunal.
Comment: Lane Group v Farmiloe is an important decision in that it examines the inter-relationship between different forms of protection afforded to employees, in particular the provisions of the Disability Discrimination Act 1995, health and safety at work legislation, and the employer’s common law duty of care. This common-sense decision will provide comfort to many of our member companies who are confronted with precisely this type of dilemma – where a disabled employee wishes to continue working in a role but cannot do so without putting him or herself and/or the employer in breach of health and safety provisions. As Judge Peter Clark stated at the end of the judgment “Section 59 DDA makes clear that health and safety legislation takes precedence over the protection against disability discrimination provided that all reasonable steps have been taken to accommodate the particular needs of the individual worker”. That said, employers should not underestimate the importance of undertaking a full and proper risk assessment in relation to employees who are disabled or likely to be disabled – see Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566.
Roberts v West Coast Trains Ltd [2004] EWCA Civ 900
No dismissal took place in circumstances where an employee was at first instance dismissed for gross misconduct, but where that sanction was substituted on appeal with a demotion, in circumstances where the contract continued in the intervening period with retrospective effect.
Facts: Mr Roberts (“R”) was employed as a chef by West Coast Trains Ltd (“WCT”). Following a disciplinary hearing for alleged misconduct, he was dismissed on 6 November 2001. On 8 November 2001, R gave notice of his intention to appeal. In the meantime, however, and before the outcome of that appeal was known, he submitted a claim of unfair dismissal to the employment tribunal. R’s ET1 was received by the employment tribunal on 5 February 2002. On 6 February 2002, R’s internal appeal hearing took place. On 8 February 2002, WCT wrote to R, stating that the outcome of the appeal was to reduce the punishment of dismissal to a demotion to customer service assistant, that the period between 6 November 2001 and 6 February 2002 would be treated as suspension without pay, and asking him to return to work on 11 February (he had requested to take leave in the interim). R then had some time off sick, and ultimately never returned to work. By August 2002, he was treated by WCT as having resigned (though he in fact never did). R pursued his claim for unfair dismissal. The tribunal concluded at a preliminary hearing that R was not in fact dismissed. R’s appeal to the EAT was unsuccessful – it held that demotion on the decision of the appeal body involved neither termination of the existing contract, nor entering into a new contract between R and WCT. Rather, the decision on appeal gave effect to a different sanction than had been applied at first instance. The EAT held that the decision of the appeal body had retrospective effect, so that R was to be treated as if he had never been dismissed in November 2001. R appealed to the Court of Appeal.
NEWS IN BRIEF
EAT confirms that the “without prejudice” rule applies only where the parties can properly be described as in dispute
In BNP Paribas v Mezzoterro [2004] IRLR 508, the EAT has considered the status of “without prejudice” communications. Without prejudice or “off-the- record” communications are often used by employers as a means of arriving at a settlement with an employee. Where the “without prejudice” rule genuinely applies, such communications between the parties are covered by legal privilege and are not therefore admissible in subsequent proceedings. In this case, an employee raised a grievance as to how she was being treated on her return to work following maternity leave. Subsequently, she was called into a meeting by her employers on a so-called “without prejudice” basis, during the course of which it was suggested that it was not viable for her to return to her old job and a redundancy package was discussed. In the EAT’s view, the so-called “without prejudice” rule applies only where the parties can properly be described as being in dispute at the time of the discussions. The meeting here did not concern a “dispute” to be settled between the parties – that a grievance has been raised does not of itself mean that there is a dispute. The employee was therefore able to adduce evidence from that meeting. Furthermore, the EAT held that even where the “without prejudice” rule would normally apply, there is an exception where exclusion of the evidence would cloak “perjury, blackmail or other unambiguous impropriety”. Here, it was held that remarks alleged to be discriminatory should be treated as “unambiguous impropriety” – as such, they cannot therefore be protected by the “without prejudice” rule in subsequent legal proceedings. Roberts v West Coast Trains Ltd [2004] EWCA Civ 900
Just and equitable for discrimination complaint to be considered out of time where applicant had received incorrect advice from her solicitor
In Chohan v Derby Law Centre [2004] IRLR 685, the EAT considered the issue of when it is “just and equitable” for a tribunal to consider a discrimination complaint outside of the three month time limit. Here, the applicant, herself legally trained, was incorrectly advised by her solicitor as to when that time limit began to run under the Sex Discrimination Act 1975. The EAT held that incorrect advice, or the existence of an implied case against negligent solicitors, should not defeat an applicant’s contention that the claim ought to be heard.
Court of Appeal considers Part-time Workers Regulations for first time
In order to succeed in a claim under the Part-time Worker Regulations, a part-time worker must identify an appropriate full time comparator. In Matthews v Kent & Medway Towns Fire Authority [2004] IRLR 697, the Court of Appeal has considered the issue of what constitutes the “same or broadly similar work” for these purposes. In the Court’s view, retained and full-time fire-fighters do not do the same or broadly similar work. As a fact it had been found that both full-time and retained fire-fighters fight fires and respond to other emergencies, but that full-time fire-fighters also carry out additional job functions including educational, preventive and administrative functions. Having made this finding of “measurable additional functions”, the Court found that the employment tribunal was entitled to conclude “on that ground alone” that the full time fire-fighter has a fuller wider job than the retained fire-fighter, and that the two groups were not therefore engaged in the same or broadly similar work. As many full-timers carry out significant additional duties to part-timers, this case is likely to make it difficult in practice for part-time workers to bring a claim under the Regulations.
Narrow interpretation of reasonable time off to take action necessary in consequence of the death of a dependent
Under section 57A(1)(c) of the Employment Rights Act 1996, an employee is entitled to “take a reasonable amount of time off during . . . working hours . . . to take action which is necessary . . . in consequence of the death of a dependant. In Forster v Cartwright Black EAT/0179/04/DM, the EAT has held that time off work for grief following a bereavement does not fall within the scope of this provision. By contrast, the making of funeral arrangements, registering the death, applying for probate where appropriate and being interviewed by the probate office will be covered. The EAT concluded its decision with the following message “ . . . though it is to be expected that the death of a dependant will produce sadness, bereavement and unhappiness, the [provision] was not intended to introduce the right to compassionate leave as a result of a bereavement.”
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