United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	JOHN BOWERS QC Instructed by: Ms A Love Messrs Leo Abse & Cohen Solicitors 40 Churchill Way Cardiff CF1 4SS


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to identify the points of law which Mrs Stevens wishes to raise in a Notice of Appeal which has been filed in this case against the unanimous decision of an Industrial Tribunal held at Cardiff dismissing her complaint under the Disability Discrimination Act 1995 and under the Employment Rights Act 1996 for unfair dismissal.

We first of all comment that paragraphs 24 and 25 of the Industrial Tribunal's decision may, as far as they go, constitute a proper direction in law, subject to one point which will be mentioned in a moment. It would be right to pay tribute to the care which the Industrial Tribunal appear to have taken conscientiously to fulfil their duties under the legislation. However, their decision was given before they would have had an opportunity to consider a judgment of the EAT in Morse v Wiltshire County Council [1998] IRLR 352, that authority set out the sequence of questions which an Industrial Tribunal should consider when dealing with a complaint under the 1995 Act. The first ground of appeal therefore is that the Industrial Tribunal in this case did not properly observe the sequence of questions set out in the Morse decision to which I have referred. That seems to us to be an arguable point and one which reflects no criticism on the Industrial Tribunal for the reasons I have given.

The second point which Mr Bowers QC wishes to raise at a full hearing relates to the question whether the Industrial Tribunal have properly approached the question of reasonable adjustments to avoid dismissal. It may be, as Mr Bowers pointed out, that the Industrial Tribunal did not consider that the question of adjustments related to the potential dismissal of disabled people once in employment. That may be so having regard to the wording in paragraph 25 of the decision, but it seems to us arguable that their approach to the question as to whether they were entitled to conclude that the employers had attempted to make reasonable adjustments may be wrong in law having regard to the objective nature of the question at issue.

The third ground of appeal relates more generally to the question as to whether there was any or any sufficient medical evidence before the Industrial Tribunal to enable it to reach the conclusions it did. This issue seems to us to raise important questions as to the duty of the parties and of the Industrial Tribunal in a disability discrimination case relating to what medical evidence should be presented to the tribunal, and whether the Industrial Tribunal should ask for it and generally what their responsibilities are in relation to the material that they are provided with.

This is a potentially important case as it seems to us. Mr Bowers tells us that the appellant has been given Legal Aid. We would wish to have the appeal fully argued. I should indicate for the employer's benefit that no consideration has been given to the question as to whether the tribunal have in fact erred in law, and nothing which has been said in this judgment should imply to the appellant or to the respondent, that any view has been formed as to the prospect of success when the matter is fully argued.

The directions I therefore give in relation to this matter are that the case be listed as a Category P case or Category A depending upon my availability. It will last for a day. Notes of Evidence are not required. The respondents have indicated that they do not require the Notes of Evidence and I take that into account in reaching that decision. Mr Bowers has indicated that the last point in his Notice of Appeal is not being pursued and I am happy to make that plain in this judgment. I do not think it necessary that his Notice of Appeal should be formally amended. I hope that it is quite clear from the terms of this judgment, what the issues are which we will be considering at the full hearing of this appeal.