United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	JILL BROWN (of Counsel) Messrs Bindman & Partners Solicitors 175 Gray's Inn Road London WC1X 8QF
For the Respondents	TIMOTHY GRACE (of Counsel) Instructed by: Mr R C Hall Messrs Richard C Hall & Partners Crown Buildings 121a Saughall Road Blacon Chester CH1 5ET


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the unanimous decision of an Industrial Tribunal held at Leeds which awarded the appellant, Mr Buxton, the total sum of £7,627.50. All but £500 of that award was compensation for the unfair dismissal; the £500 was for injury to feelings under the Disability Discrimination Act 1995 [The Act].

The facts giving rise to Mr Buxton's claims against his former employers, Equinox Design Limited, may be shortly stated.

The respondents are a medium sized company [60 employees] engaged in the business of making Exhibition stands. The applicant, who was born in 1950, was employed by them from October 1991 until the date of his dismissal in March 1997.

In 1994 the applicant was diagnosed as suffering from Multiple Sclerosis [MS] in 1994. By September of 1995 the applicant was having some difficulty with the more physical aspects of his work as an exhibition craftsman, and lighter duties, in the form of a job of joiner, essentially based in the employers' factory, was found for him. He was required to go to exhibition sites only rarely. In the latter part of 1996, the respondents began to consider whether this situation could continue indefinitely, and they were concerned about his ability to continue at work. Accordingly, they sought guidance from the applicant's consultant as to prognosis. Thereafter a meeting took pace between the applicant and his employers and the outcome, described by the tribunal as surprising, was that the applicant should contact his consultant to clarify his report, which he did.

There was an accident at work in which the applicant suffered a minor injury: a cut thumb whilst operating a band saw. From that time until the effective date of termination, the applicant was on sick leave, the employers having insisted that he take time off work. On 30 January the employers wrote again to the consultant seeking a "detailed analysis of Mr Buxton's capabilities for their liability insurers." Because of another accident not involving the applicant, the employers were the subject of a Health and Safety Executive investigation. The applicant's accident was reported to the Executive by the employers. The Executive noted Mr Buxton's disability and the papers were referred to Dr Gaubert of the Employment Medical Advisory Service [a department of the HSE]. With permission, she reviewed the applicant's medical files and met with the applicant. She wrote to the employers setting out her understanding of the position. It was her conclusion that:

"While Mr Buxton's condition has so far progressed relatively slowly, it is difficult to make accurate predictions about his condition over the next few years. I think it unlikely that his condition will return to normal. Mr Buxton realises that his work rate has slowed and that the time may have come for some decisions to be made about his future. I have suggested that he attend the Jobcentre for advice on -re-training.

I do not think that Mr Buxton's recent accident with a band saw related to the MS but it has highlighted the need for a re-assessment of risk both to himself and others. You have already taken sensible steps to reduce risk. There are no other suitable jobs for Mr Buxton and indeed the nature of the work means that there are inherent risks in the general environment which cannot be reduced such as wires, cables, wood panels on floors etc.

I have not obtained any further information from Mr Buxton's Consultant nor his general practitioner. I feel that a decision about Mr Buxton's working future will certainly need to be taken within the next year and my own feeling is that re-training is better discussed sooner rather than later. I would suggest that you have a further meeting with Mr Buxton to finalise issues."

The Industrial Tribunal found that in response to that letter the respondents acted promptly and called a meeting for the applicant to attend on 26 March 1997. The applicant was not prepared to resign nor was he willing to accept the suggestion of re-training, which would have involved him in leaving his employers' service.

"The respondent's managers in response and in some haste and without consideration decided that the only course of action open to them was to dismiss the applicant."

The Industrial Tribunal noted that Dr Gaubert had not imposed any deadlines or issue any prohibition on the applicant continuing to work. She had suggested a re-assessment of risk which was not undertaken and it was upon this letter that the respondents took their decision to dismiss. The Tribunal concluded that at the dismissal meeting the employers proceeded on the assumption that if the applicant was not prepared to agree to re-training, which involved him leaving, he would simply be told that he would have to go.

"This is, in effect, what happened. This cannot be a satisfactory basis for the dismissal on capability grounds."

Having concluded that the dismissal was unfair they turned to the position under the Act. They noted that the only reason for the applicant's treatment was his disability and that such treatment was not justified. In reaching that conclusion the Tribunal said this:

"The medical reports, although they raised concerns about the applicant's continuation of work, stated that the applicant could continue in his present team working environment with support of colleagues. The applicant had worked for in excess of 12 months in the post provided by the respondents. He appeared to be able to continue in that post. The respondents however took a decision to prevent that continuing. There was no measure of the applicant's functions in the workplace undertaken on an objective basis, but the respondents appeared to have believed he was less able to cope with day to day tasks. None of the reasons can be termed as substantial within the terms of the subsection. The respondents did not carry out the risk assessment suggested by Dr Gaubert. They did not measure objectively the suggested reduction in the applicant's capability. The Respondents have accordingly failed to make out the justification defence. For all these reasons the Tribunal's conclusion is that the applicant was unfairly dismissed and that the respondents discriminated against the applicant on the grounds of his disability."

The question of remedies was adjourned for a subsequent hearing. There is no appeal against the liability decision.

Following a remedies hearing, the Tribunal made the award which is the subject of this appeal. On this appeal, there were effectively only two points in issue:

1. On the evidence were the Tribunal entitled to conclude that the period of future loss should be one year from the date of Dr Gaucher's letter?

2. Was the award of £500 for compensation for injury to feelings one which fell within a legitimate bracket or could it be described as manifestly erroneous such that the EAT should interfere with it?

This statement of the issues conceals an underlying point of some difficulty, namely the practice and procedure, and duty of Industrial Tribunals when considering awards under the Act.

At present, compensation for unfair dismissal is 'capped' at around £12,000; whereas an award for unlawful dismissal contrary to the Act is uncapped. The potential worth of a claim under the Act is considerable; yet the Tribunal's practice and procedure is not entirely well suited to the determination of issues of fact which, as here, may hinge upon disputed medical opinion. There is no provision in the Rules for an exchange of schedules detailing the losses claimed and admitted; there is no express power to order a stay if an applicant declines to be medically examined if reasonably called upon by the other party to do so. Without proper directions, there is a real possibility of trial by ambush leading to significant awards.

This appeal raises the question as to the duty, if any, of a Chairman to take a lead in suggesting what evidence the Tribunal might find of assistance. If an unrepresented party fails to adduce the right evidence, may the tribunal simply conclude that a particular point has not been proved? In this case, the burden of proving loss was on the applicant: he was unrepresented. There was no oral evidence from any doctor called by either party. On the issue of prognosis, the tribunal was given no help in the medical reports before it. Yet, having regard to their findings on liability, the crucial issue for them was to decide, on a balance of probabilities and an assessment of the chances, what would have been the outcome of the risk assessment had the employers carried one out. It was the lack of such an assessment which rendered the dismissal unfair and defeated the defence of justification under the Act. If the assessment would have confirmed the employers' view as to the applicant's capabilities, then the compensation would be limited; but if they concluded that probably the assessment would have shown that the employee could have continued, then the compensation would be more substantial. Neither party helped the tribunal on this issue. Although expressing favourable views about the progression of his MS, the applicant's own doctors gave no prognosis nor did they have any first hand experience of what the applicant's work involved. Dr Gaubert, on the other hand, knew precisely what was involved in the job from a health and safety point of view, but perhaps, had less experience of the way in which MS will or might progress, having regard to the applicant's age, his progress so far and statistics relating to MS sufferers more generally and how they progress.

With the benefit of hindsight, it would have been better if, in this case, some directions had been given to enable the parties to define the compensation issues with the assistance of the Chairman. The crucial issue was for what period the future loss should be calculated. The answer to that question depended upon the Tribunal seeking to answer the important question: what would have been the risk assessment if one had been carried out. On that question they were not given the assistance they needed. The Tribunal must have concluded in their decision on quantum that Mr Buxton was bound to lose his job, fairly and justifiably, following such assessment had it been carried out within the year after Dr Gaubert's report. They were entitled to take account of how his condition had developed and the optimistic reports from the consultants. On the other hand, a factory where there are band saws in operation is likely to be a risky place for anyone whose dexterity is in issue, and Dr Gaubert's advice on the question would be valuable. If she said that in her opinion the applicant was unable safely to perform his duties, then the tribunal might well have been able to conclude that the loss period was the one year. Having criticised the employers for dismissing the applicant before they knew, as opposed to assuming what the assessment would show, it may be said that the Tribunal itself fell into the same error.

We can see considerable force, therefore, in the submission that there was no evidential basis for the Tribunal to limit the compensation to one year. However, we reject the appellant's submission that the tribunal should, on the basis of the evidence before it, have concluded that the period was unlimited in time. Such a submission lacks any good sense as it is reasonably clear that the question of Mr Buxton's future capability to work with dangerous machinery must be in question. It was submitted to us that the Industrial Tribunal were entitled to reach the conclusion which they did, on the basis of the limited material before them. If an applicant does not offer the tribunal convincing evidence as to the future then the tribunal is not required to 'hunt around' for evidence or suggest that more evidence should be adduced. The tribunal must make its determination on the basis of the material which the parties choose to present to it. In this case, therefore, the appellant should not be given another chance to improve his case.

This is not, we think, the occasion to try and indicate where the line is drawn between a purely adversarial process and the function of an Industrial Tribunal which has something of an inquisitorial role, in addition. The dividing line is best left to the Tribunals themselves and it is the EAT's experience that good sense is almost invariably shown in the way they deal with cases. That said, it is important, we think, that Tribunals are especially alert to problems that may arise in remedy hearings after a finding of unlawful discrimination. What one might describe as the relatively brief and informal hearing on remedy appropriate in unfair dismissal cases may not be appropriate where the compensation is uncapped. In the former category of case, the judgment and experience of the Lay Members may be especially important in relation to the state of the job market in the locality, and the potentiality for the applicant obtaining new employment, and thus, the tribunal may not be assisted by much, if any, evidence. But where the case involves unlimited compensation, it will often be the case that the remedies hearing should involve the parties in careful pre-preparation under the management of the tribunal. For this purpose, directions may be required involving, amongst other things, an exchange of statements of case and any witness statements. Currently there is a proposal that the limit on compensation for unfair dismissal be removed. If that were implemented, in due course the President of the Industrial Tribunals might well wish to consider what new procedures should then be introduced. Meanwhile, in discrimination cases, the remedy hearing will require careful judicial management. In disability cases, a medical expert might be required if the parties have been unable to agree the evidence. In most cases this should be unnecessary, but where it is necessary, then special consideration should be given to fixing the hearing to accommodate a busy professional witness.

On the appeal itself, we have come to the conclusion that the Tribunal's finding that the period of loss should be one year was not a finding which could be made on the evidence before it, since it involved making a finding as to the outcome of a risk assessment in the context of a disease which has variable effects on those who suffer from it. This was a case where the tribunal needed to receive assistance from the consultants and from Dr Gaubert. That evidence could be in writing or oral. Without such assistance the Tribunal was not in a position to say what the outcome would be. Therefore, we consider that this issue should be referred back to the same Industrial Tribunal for them to consider. Before doing so, it will, no doubt, wish to have a directions hearing so that questions of evidence and so on can be discussed.

As to the appeal against the award of £500 for injury to feelings, we are satisfied that there is no ground in law for us to interfere with the Tribunal's decision. The appellants sought to argue that such a figure was inevitably too low in a disability case where the ability of a disabled person to get another job was less good than a person dismissed for race or gender reasons. Whilst this may be true, the tribunal is seeking to compensate a person for an injury to feelings, where such is proved. Each case will depend upon its own facts. This was a judgment which the tribunal were well entitled to make for the reasons given in their decision.

Accordingly, this appeal will be allowed to the extent indicated and the matter remitted back to the same tribunal for further consideration in accordance with this judgment.