Appeal No.	 EAT/315/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 May 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR A E R MANNERS
MR W MORRIS

MRS E SENIOR	APPELLANT

THE CRAFT COLLECTION LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT	

	JUDGE PETER CLARK:	This is an appeal by the applicant before the Leeds Employment Tribunal, Mrs Senior, against that tribunal’s decision to dismiss her complaints both of unfair constructive dismissal and disability discrimination brought against her former employer, the respondent, the Craft Collection Ltd, following a hearing held on 14th December 1999 and 26th January 2000. That decision, with extended reasons, was promulgated on 15th February 2000.

1.	By letter to the EAT dated 19th April 2000 the appellant’s representative, Mr Colin Moore of the Wakefield Centre for the Unemployed, has indicated that the appellant would not be attending or be represented at this preliminary hearing held today on grounds of expense. In these circumstances he asks us to consider the appeal on the papers for the purpose of determining whether any arguable point or points of law arise which ought to proceed to a full appeal hearing. That we have done.

Background

2.	The respondent carried on the business of assembling craft kits for use in needlework and tapestry. The assembled kits were then distributed by mail order. The company had 100 employees of which 41 were employed in factory-based positions and the remainder in customer service and clerical positions.

3.	The appellant, born on 3rd May 1940, was a long serving employee who commenced employment with the respondent on 9th October 1973. She was employed as a picker/packer, heavy manual work which involved pulling a trolley around the warehouse taking heavy items from shelves and placing them in the trolley.

4.	She developed a back condition following an injury at work. She had an acute onset of left sciatica on 23rd December 1995 leading to seven weeks off work. She again took sick leave from November 1998 until February 1999. When she returned to the respondent she said that she could not do her former work, having been advised that it was too heavy and would aggravate her back injury.

5.	On 2nd March 1999 the respondent received a letter from her general practitioner, Dr Hill, expressing the opinion that she was no longer capable of a standing up job but was more than capable of carrying out any work where she could remain seated most of the time.

6.	At the same time Mrs Hammond, Personnel Manager, received advice from the respondent’s insurers in a letter dated 11th March 1999 recommending that she should not go against Dr Hill’s advice and should consult him as to any other job which might be available for the appellant, and then to carry out a detailed risk assessment and provide proper training in the new job to the appellant.

7.	The respondent received written representations from the appellant’s trade union and held a number of meetings with the appellant, accompanied by her daughter. They identified a number of alternative positions for the appellant and put them to Dr Hill. He replied on 22nd April 1999 stating that none would be suitable for the appellant.

8.	By early September 1999 the position had still not been resolved. The respondent had written to Dr Hill on 3rd September seeking further clarification on the appellant’s fitness to perform certain jobs. Dr Hill was on holiday until October. The Appellant had, by letter dated 23rd August 1999, asked the Managing Director, Mr Bowskill to make a formal grievance and required a reply within seven days. The appellant’s letter was not answered within that timeframe. 

9.	Against that background the appellant’s representative, Mr Moore, wrote to the respondent on 7th September, enclosing a letter of resignation from the appellant in which she alleged constructive dismissal and disability discrimination.

10.	Mrs Hammond replied to the appellant on 9th September, setting out the position as she saw it and inviting the appellant to withdraw her resignation. She declined to do so.

The Employment Tribunal’s decision

11.	On the facts as found the tribunal concluded:

(1)	that the respondent was not in fundamental breach of the terms of the contract of employment when the appellant resigned on 7th September. Although the respondent was at fault in not replying within seven days to the appellant’s grievance letter, they were entitled to wait until they could find work which the appellant’s doctor was satisfied she could safely return to do. Their actions did not breach the necessary mutual trust and confidence to be implied into the contract of employment. She was not dismissed.

(2)	The appellant was disabled within the meaning of the s.1 of the Disability Discrimination Act 1995. She was treated less favourably for a reason related to her back injury, but such treatment was justified. Further, the respondent owed the appellant a duty to make reasonable adjustments. They had discharged that duty, but if they had not, such breach was justified.

The Appeal

12.	The following points are taken:

(1)	The tribunal erred in deciding that the unfair dismissal claim before considering the disability discrimination claim. We reject that submission. The tribunal were obliged to consider each claim separately; they raise different questions. Further, we cannot accept that the tribunal overlooked the history of the matter in determining whether the appellant had made out her case that the respondent was in breach of the implied term of mutual trust and confidence, and that the respondent’s failure to respond within seven days to the appellant’s grievance letter provided the ‘final straw’. All these matters were taken into consideration. The tribunal reached a permissible conclusion that the appellant had not been constructively dismissed on the facts. 

(2)	The tribunal failed to consider the respondent’s responsibilities under s.6 of the 1995 Act to make reasonable adjustments. We think that they did. 

(3)	There is a challenge to the tribunal’s findings on justification. It seems to us that this is a challenge on fact, not law. We can discern no error of law in the tribunal’s approach to the question of justification.

Conclusion

13.	We are not satisfied that this appeal raises any arguable question of law to proceed to a full hearing. Consequently the appeal must be dismissed at this stage.