England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL AN THE EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Lindsay: President)

		Royal Courts of Justice Strand London WC2 Thursday, 7th March 2002

Thursday, 7th March 2002

1. LORD JUSTICE BUXTON: This is an application for permission to appeal, and we have to remind ourselves, in view of the course that the submissions have taken, that it is in fact an application for permission to appeal against an order of the Employment Appeal Tribunal made on 16th October 2001. The matter before the Tribunal was an appeal against a decision of an Employment Tribunal, the decision in which was sent to the parties on 5th January 2001. That Tribunal had sat, we are concerned to note, over a period of six days. Permission to appeal against the decision of the Employment Appeal Tribunal was refused on paper by Mummery LJ, and it is renewed to this court.
2. As the grounds of appeal stood until this morning, effectively the only basis upon which complaint was made of the decision of the Employment Tribunal, and of the decision of the Employment Appeal Tribunal to object to the appeal to it, was that the decision of the Employment Tribunal had been inadequately reasoned. This morning, however, there was delivered to the court a draft additional ground of appeal which made complaint on a different basis, that is to say that the Employment Tribunal had erred in law in a particular respect. Mr Cavanagh QC, who has entered the case today, has appeared before us to support that ground. We have permitted it to be examined before us, and examined in detail it has been, despite what we need scarcely point out is the manifest inconvenience of its only emerging this morning. We wish to make it quite clear that we do not consider that the additional ground was encompassed by the original grounds of appeal; and we are not surprised, therefore, that we do not have the advantage of any view expressed upon it by the Employment Appeal Tribunal. With those preliminary observations we must explain what the case is all about.
3. The applicant, Mr Parsons, was dismissed by his employers, Deltron Components Ltd, on 25th October 1999 after what the employers maintained was a redundancy process. He complains of that, and also in respect of discrimination under the provisions of the Disability Discrimination Act, firstly in respect of less favourable treatment than he received whilst in employment and also in respect of his dismissal constituting less favourable treatment under that Act.
4. Because of the way in which the application before us has progressed, it is necessary to say something of the facts that were found by the Employment Tribunal. We have already indicated the length of time that the hearing before the Tribunal took up. The Tribunal had the benefit of hearing evidence not only from the applicant and from another former employee of the respondent company, but also (and more particularly) from two very senior executives of the company who had been engaged in dealing with Mr Parsons when he was in employment. We will be forgiven for not setting out the background structure of the employment relationship, but go straight to what was found about the way in which Mr Parsons had been treated.
5. Mr Parsons was engaged in the sales operation of the respondent company. The two persons most directly concerned with dealing with him were Mr David Buckley, the sales and marketing manager of the company, and Mr Robert Davis, its managing director. Mr Parsons' disability is that he is blind. It was in connection with the way in which he was treated in that connection that the Employment Tribunal made findings, at considerable length. We summarise some of those as set out in paragraph 12 of the determination.
6. The Tribunal found that the lead for the attitudes and behaviour within the respondent company came from Mr Davis, and that his approach was

"one of regular use of strong expletives, direct statements to members of staff and liberal comments about other people, whatever their circumstances".

7. Although the company had harassment and other policies set out in its own documents, the Tribunal made a finding of fact that Mr Davis, the managing director, himself did not observe those policies.
8. The Tribunal heard Mr Davis give evidence that he had heard expressions used by other employees in regard to Mr Parsons, such as "Blind Pugh" and "Blind Bat", yet did not consider it a matter on which he would even consider taking action under the policy and to give directions to members of the staff. In those circumstances the Tribunal found that it was virtually impossible for Mr Parsons to raise any reasonable complaint about the way in which he was treated.
9. The Tribunal made findings not only about Mr Davis's lack of concern about the treatment of Mr Parsons, but also about his treatment of him himself. They found this at paragraph 12(l):

"...the tribunal finds as a fact that on occasions Mr Davis referred to the applicant generally and directly using words that could only been interpreted as abusive of his disability and therefore his lack of ability in certain circumstances such as not seeing something that Mr Davis deigned to make comment about."

10. There was an incident in which Mr Davis or Mr Buckley were found by the Tribunal to have made fun of the applicant, in embarrassing and humiliating circumstances in front of customers, on the grounds of his disability.
11. So far as the question of Mr Parsons leaving the company is concerned, as we have said, this was purportedly done by the employers on grounds of redundancy. How the difficulties allegedly that the company found itself in should be dealt with in terms of deployment of staff were, we have to say astonishingly, left to be determined by Mr Parsons himself. He suggested three options, two of which were not likely to be amenable to his employers. They eventually concluded that the situation that they were faced with was one in which Mr Parsons could be considered in a pool of his own so far as eligible employees were concerned. The Tribunal found this at paragraph 12(y) of its determination:

"With regard to the pool for selection, although another person in the department did ultimately leave employment, that person being Sarah Jarvill, she was not considered as part of a pool for selection. The applicant was considered for his position entirely on his own. The submissions on behalf of the respondents were that rarely though it may be, this was a unique situation where a pool of one could properly be considered. Bearing in mind the fact that the respondents maintained that they were having to consider restructuring the sales and marketing department as a consequence of the distributorship agreement the tribunal does not find that the pool could only be limited to one person when the re-structuring was supposedly based on a review of the whole department."

12. They rejected Mr Buckley's claims that he had been considering other options. They concluded, first, that the situation had not been one of redundancy; second, there was no appropriate consultation; and, third, that there had been no attempt to find alternative employment. They were therefore unanimous in paragraph 19 that Mr Parsons had been unfairly dismissed.
13. They then had to proceed to consider the disability discrimination questions. So far as the treatment within employment was concerned, the Tribunal found this at paragraph 21:

"... the tribunal has found on the facts that the applicant has been subjected to treatment and comment that clearly would not have been given to or allowed against a person who did not suffer from the applicant's disability or indeed any disability at all. Therefore the requirements of Section 5(1) of the DDA ... is satisfied on the findings of fact of the tribunal in respect of the treatment received by the applicant as a result of his disability..."

14. The difficulty from the respondent's point of view is that no attempt was made to justify the treatment already outlined in this judgment, because their case was that there was no such treatment at all, as the Tribunal noted in paragraph 22.
15. They then turned to the matter of which, as we understand it, Mr Cavanagh now principally makes complaint, that is to say the finding that the employee's dismissal was an instance of less favourable treatment arising from his disability. The complaint about that conclusion is this. Mr Cavanagh rightly takes us to sections 4 and 5 of the Disability Discrimination Act 1995 and points out that in section 4(2)(d)

"It is unlawful for an employee to discriminate against a disabled person-

...

(d)by dismissing him or subjecting him to any other detriment."

16. And the definition of discrimination in section 5(1)(a):

"... an employer discriminates against a disabled person if-

(a)for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply".

17. The complaint of the way in which the Employment Tribunal went about its work is that they failed to make findings as to whether the treatment of the respondent was "less favourable treatment" and, more particularly,

"erred in law in holding, at paragraph 26 of its Decision, that because the Respondent's disability was a factor in his treatment, therefore the treatment must have been less favourable treatment than would have been afforded to a person who was not disabled".

18. That, if it was the case, says Mr Cavanagh, was an error because it did not properly respect the guidance given by the House of Lords in Glasgow City Council v Zafar [1998] ICR 120, where at page 123 H Lord Browne-Wilkinson said this in respect of a case of discrimination on racial grounds:

"Although, at the end of the day, section 1(1) of the Act of 1976 requires an answer to be given to a single question (viz. has the complainant been treated less favourably than others on racial grounds?), in the present case it is convenient for the purposes of analysis to split that question into two parts - (a) less favourable treatment and (b) racial grounds - as did the Second Division."

19. Mr Cavanagh's complaint in the new ground of appeal that we have already set out is that this Tribunal treated it as a rolled up question, and therefore assumed that, because Mr Parsons had been treated less favourably in other respects, the dismissal itself was on grounds of his disability; and he reminds us of the proper approach to these questions as set out by Neill LJ in this court in King v Great Britain China Centre [1992] ICR page 516, as cited with approval in the Zafar case by Lord Browne-Wilkinson at page 125.
20. We turn, therefore, to how the Tribunal itself approached this. In paragraph 24 it says that, having found the applicant's dismissal was by reason of redundancy, it then has to consider whether a potential explanation or reason of less favourable treatment was due to admitted disability. The Tribunal continued in these terms:

"Here the tribunal adopts the process of inference as it would in all other discrimination cases (race and sex), ie, the principles set out in King v Great Britain China Centre. Whilst recognising that the burden of proof in respect of these matters rests entirely with the applicant, and always does so, the Tribunal must ask whether on the face of the primary findings of fact there are matters that could give rise to an inference that would require a tribunal to look to the respondents for an explanation. If that is the case then the tribunal must look to see whether the respondent's explanation is in any way inadequate or unsatisfactory; indeed if an explanation is given as to such matters at all. If it is so inadequate or unsatisfactory or no explanation is given then it is open to the tribunal to draw an inference of discrimination. Those principles the tribunal find applicable here also in the case of the test of less favourable treatment and of the provision of Section 5(1) of the DDA."

21. It then continued in paragraph 25:

"Looking at this matter in that light therefore on the primary facts the tribunal is satisfied (given the burden of proof that rests upon the applicant) that there are answers that are required from the respondents to explain why it is they did not identify and select the appropriate pool; did not identify and properly look at the reorganisation; did not properly consult with the applicant when appropriate, in the way that it was appropriate and to the extent that was appropriate; and did not properly consider the reorganisation proposals that were put forward by the applicant as a result of the respondent's request."

22. It then points out that there was no satisfactory explanation, in particular from Mr Buckley, the executive who was responsible for this, as to why the employment situation was dealt with in the way that it was.
23. Having set out those facts and having set out in extensive detail the attitude that this company had towards this gentleman on the grounds of his blindness, the Tribunal said this in paragraph 26:

"Given those circumstances therefore, and given the failure of the respondents to satisfactorily or adequately provide explanation, it is open to the tribunal to raise an inference that the reason that the applicant was so selected for redundancy had, as one of its reasons, if not its principal reason, the less favourable treatment arising as a result of his disability. On the facts and given the circumstances the tribunal is satisfied that the applicant's disability was a factor and therefore resulted in less favourable treatment of the applicant in those circumstances."

24. Mr Cavanagh said that those two sentences were inconsistent with each other. We simply do not understand that submission. What the Tribunal was saying, in my judgement, in clear terms, is that the applicant's disability was a matter which caused the employer to treat him less favourably than otherwise he would have done, the less favourable treatment in this respect being the dismissal. The single question referred to by Lord Browne-Wilkinson in Glasgow City Council v Zafar in the passage we have the already cited was therefore answered by this Tribunal. In answering it, it took the steps required in King v Great Britain China Centre. We cannot see any ground for saying on the face of this very detailed decision that there was any error of the type that Mr Cavanagh complains of.
25. So far we have not referred at all to the decision from which this appeal is sought to be brought, that is to say not that of the Employment Tribunal, but that of the Employment Appeal Tribunal. That is because the matters which we have so far dealt with were not ventilated in the court below.
26. The matter that was ventilated in the court below, and which was understood by this court to be the only basis of appeal until this morning, was the complaint that inadequate reasons had been given by the Tribunal for its finding, that there had been unfavourable treatment on grounds of disability. The Employment Appeal Tribunal dismissed that contention in robust terms, and so will I. I trust that enough was said in the earlier part of this judgment to demonstrate that this Tribunal went in detail into the evidence of this case and made a series of findings, I have to say of the most serious sort, against this company. They showed beyond a peradventure that this employee had been discriminated against in a far-reaching and humiliating way. Having made those findings, it was unnecessary for the Tribunal supererogatorily to go on and say that found that what had happened to this claimant was on the basis of his disability, or that it was relying upon this detail or that in the deplorable history that it had already set out.
27. Industrial tribunals are industrial juries. In this case, in view of the complaints that are made, it is perhaps fortunate that the Tribunal set out its findings in such detail. But it should not be necessary for a tribunal in a case as clear as this one to be forced into the detail that this Tribunal was forced into, and for its findings then to be pursued both in the Employment Appeal Tribunal, which hears appeals on grounds of law only, and in this court.
28. Permission to appeal to this court should not have been sought in this case. Permission having been rejected by Mummery LJ, the application should not have been renewed in court and I would dismiss it.
29. LORD JUSTICE LATHAM: I entirely agree.
Order: Application dismissed.