Veitch Penny LLP - Exeter | Crediton, Devon

Case

Lane Group plc & Another v Farmiloe
Employment Appeal Tribunal - (24th November 2003)

Issues

(1) Unfair dismissal
(2) Disability discrimination
(3) Health & safety

Facts

Mr Farmiloe was employed in 1999 as a Warehouseman for the Lane Group in Bristol. For a number of years he had suffered with the skin condition psoriasis, which meant that he was limited in the type of footwear he could wear at work. Some years previously, the employer had adopted a policy that all persons working in its warehouse had to wear safety footwear but, the ordinary protective boots supplied by his employer exacerbated the condition on his feet. An exception was made for Farmiloe and he was permitted to wear his own shoes in the warehouse.

In October 2001, the arrangement came to the attention of the Senior Health & Safety Officer with the local authority, as the employee was not wearing protective footwear or headwear in the warehouse due to his condition. The Officer informed the employer that the exception could not be made. It was agreed that the employee would be suspended on full pay whilst a solution was looked into. The employer was unable to find any alternative footwear. As no alternative employment could be located, the employee was dismissed on 15 February 2002.

The employee appealed against the decision in line with the employer’s grievance procedure. The employer confirmed their decision on the basis that health & safety procedures could not be opted out of.

Mr Farmiloe made a claim of unfair dismissal and disability discrimination against both the employer and the authority. At first instance, the Tribunal found in Mr Farmiloe’s favour but the decision was appealed by both the employer and the authority. They argued that the Tribunal had been incorrect in its assessment of the employer’s duties under the Personal Protective Equipment at Work Regulations 1992.

Decision

The appeal would be allowed.

There are clear hazards in the warehouse which necessitated the wearing of protective footwear. There was no other way in which the employee’s feet could be protected. The regulations based an absolute duty on the employer to make sure that suitable personal protective equipment was provided and was required to take all reasonable steps to ensure that such equipment was used. Failure to do so was a criminal offence. In turn, a corresponding requirement was placed on the employee to use the equipment provided to him.

In this case, the employer had fulfilled its duty to make reasonable adjustments under Section 6 of the Disability Discrimination Act. There had been by mutual consent, no alternative employment available to the employee and consequently dismissal was the only appropriate response. As the employer would have been breaching Health & Safety Legislation by continuing to employ Farmiloe, it was in effect, obliged to dismiss him. The disability discrimination complaint was dismissed and the employee’s complaint of unfair dismissal was remitted to a fresh tribunal for re-hearing.

Comments

This case is of importance as it provides employers with guidance on the interaction between an employer’s duties under health & safety regulations and under disability discrimination legislation.