United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TODD (Solicitor) Messrs Hopkin & Sons Solicitors Eden Court Crow Hill Drive Mansfield Nottinghamshire NG19 7AE


 


JUDGE PETER CLARK: This is an appeal by Mr Bayton, the applicant before the Nottingham Employment Tribunal, against that tribunal's decision dismissing his complaint of disability discrimination against his former employer, Saurus General Engineers Ltd.

The appeal raises two issues. First, whether the tribunal selected the correct comparator for the purposes of deciding whether the applicant received less favourable treatment under s. 5(1)(a) of the Disability Discrimination Act 1995; and secondly, whether the tribunal correctly approached the defence of justification raised by the employer under s. 5(1)(b) and s. 5(3) of the Act.

As to the question of comparator, the tribunal following the approach of an Employment Tribunal in the case Clark v Novacold compared the applicant with a long-term absentee who was not disabled with the meaning of the Act. That comparison was upheld by this tribunal on appeal in Clark v Novacold [1998] IRLR 420. Two points are made about that, the first is that it is understood that Clark v Novacold is going to the Court of Appeal. This is a new employment protection piece of legislation, very much in its infancy, and it cannot be said with absolute certainty that the comparison made in that case will necessary hold. Secondly, Mr Todd seeks to pray in aid a decision of this tribunal on which I sat, British Sugar Plc v Kirker [1998] IRLR 624. It has been suggested by some commentators that there is a difference in approach to the question of the comparison under s. 5(1)(a) in the cases of Clark and Kirker. Speaking for myself, I am not convinced of that, but plainly that is a matter which ought to be argued.

Turning to the question of justification. We accept of course by analogy with the sex and race discrimination legislation that the question of justification is normally a question of fact for the Employment Tribunal. However, Mr Todd submits that here the Employment Tribunal has failed to take into account a relevant factor when considering the issue of justification, namely that the applicant's receipt of statutory sick pay had ended on 12th September 1997 so that by the time of his dismissal on 30th January 1998 he was no longer in receipt of any pay from the respondent. Mr Todd submits that there is no indication that the tribunal has carried out the balancing exercise, that is to say between the detriment to the applicant on the one hand of being dismissed, and the lack of any prejudice to the respondent by retaining him on the books, particularly in circumstances where on the evidence he was due to attend his consultant for an examination some five days after the date of dismissal.

The Notice of Appeal does not at present spell out the applicant's argument on justification. Mr Todd has indicated, subject to obtaining Legal Aid, that he intends to instruct Counsel to argue the case on behalf of the appellant. It is no disrespect to Mr Todd when we say that these are difficult and to some extent new issues and we think it is a case in which the services of Counsel would be of assistance, not only to the appellant, but to this tribunal which ultimately hears the appeal. Accordingly we shall allow sufficient time for Counsel to be instructed to consider an amended Notice of Appeal.

The directions are for the appellant to have 42 days in which to file a draft amended Notice of Appeal to be marked for my attention, and on receipt of that draft amended Notice I will consider granting leave to amend. The appeal will be listed for four hours, Category B. There is no requirement for Chairman's Notes of Evidence. There are no further directions at this stage.