United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


HIS HONOUR JUDGE PETER CLARK: This is an Appeal by Mrs Barker, the Applicant before the Nottingham Employment Tribunal, against that Tribunal's decision promulgated with extended reasons on 7^th August 1998 dismissing her complaints of unfair dismissal and disability discrimination.

The Facts

1. The Appellant was a long-standing employee of the Respondent having commenced employment in April 1996. At the time of her dismissal, effective on 5^th February 1998, she held the post of Senior Office Manageress working on a part-time basis, finishing at 3.30 pm. In August 1997 she suffered a fall, severely fracturing her right hip. She went off work never to return before the termination of her employment. Notice of termination was given on 7^th November 1997. During her absence the Appellant submitted medical certificates and whilst she was away, her work was absorbed amongst other members of staff in the office, such that the Respondent came to the view that her post was redundant. A letter to that effect was written to the Appellant on 8^th October 1997, making it clear that no decision as to her future with the Respondent would be made until full consultation had taken place.
2. On 23^rd October 1997 a meeting took place at the Appellant's premises between Mr Silk, Financial Director and Mr Moxon, a director. At that meeting which was recorded, the Applicant made it clear that on legal advice (she had consulted the Nottingham Law Centre) she would not say anything. The Respondent's position was explained, her duties were absorbed, there was a diminution in the requirement for employees as a result. No alternative position was available save for that of a junior, Nicholas Stacey, who was on a much lower salary.
3. In the absence of any contribution from the Appellant the meeting ended in the expectation that either the Appellant or her solicitor would contact the Respondent "probably next week". In the event, no such contact was made and on 7^th November 1997, Notice of Termination was issued. The Appellant was not required, given her lack of fitness, to attend work during the notice period expiring on 5^th February 1998. During the notice period the Appellant appealed to Mr Rubin, the Chairman of the Respondent. The appeal hearing took place on 3^rd December and by letter dated 10^th December Mr Rubin dismissed the Appeal.

Unfair Dismissal

4. The Tribunal found that the reason for dismissal was redundancy and that in all the circumstances dismissal was fair under Section 98(4) of the Employment Rights Act 1996. At this preliminary hearing there is no appearance by or on behalf of the Appellant. We are told that the Appellant herself is ill, due to a hip operation and is unable to travel to London. An earlier hearing in February was adjourned for that reason. The Appellant's representative, Ms Weston has asked us to deal with the case on the basis of the grounds of appeal contained in the Notice dated 11^th September 1998. No further written representations by way of a skeleton argument have been submitted.
5. Dealing first with the finding of fair dismissal, two points are raised. By letter dated 18^th May 1999 Ms Weston refers to an application made out of time on 10^th May 1999 to the Employment Tribunal for a review of the unfair dismissal decision on the grounds that a witness has now come forward to say that following the Appellant's dismissal, she was replaced by a new employee. Hence, it is said, the Appellant was not in fact, made redundant. By letter dated 14^th May the Tribunal replied referring to this preliminary hearing and stating that the matter can be left to the Employment Appeal Tribunal at this stage. It seems to us that we must determine whether the unfair dismissal appeal raises any arguable point of law to go forward to a full appeal hearing on the basis of the facts as found by the Tribunal at the original hearing. If a review out of time is allowed, it will then be for the Employment Tribunal to reconsider its earlier decision in the light of the new evidence. Secondly, the grounds of appeal against this part of the decision are that the decision was perverse in finding that a true redundancy situation existed, that full and fair consultation took place and that a fair selection procedure was utilised.
6. We are unable to accept that any arguable point of law is here made out for these reasons.

(1) On the Tribunal's findings of fact a redundancy situation did arise. The Tribunal was entitled to find that redundancy was the reason for dismissal on the evidence then before it. We make no observations on what the position might have been had the further evidence foreshadowed in the recent application for a review been before the Tribunal. That is an irrelevant consideration for us.

(2) It was open to the Tribunal to find that adequate consultation took place, particularly in circumstances where the Appellant, acting on advice, declined to comment at the consultation meeting and where no further contact was made by her side prior to notice being given on 7^th November 1997.

(3) The Tribunal was satisfied that by insisting on working part-time the Appellant precluded herself from being retained in a full-time capacity. Further, she was found to be incapable of doing the jobs of Barbara Bernard and Susan Owen, who had otherwise performed the selection pool.

7. In these circumstances, we dismiss the appeal against the finding of fair dismissal.

Disability Discrimination

8. The Tribunal found that the Appellant was not disabled within the meaning of Section 1 of the Disability Discrimination Act 1995. In reaching that conclusion the material findings were at para 5(vii) of the Tribunal's reasons. The Appellant suffered from a physical impairment affecting her mobility which affected her day-to-day activities. There was no finding that the effect was other than substantial, ie more than trivial. However, the Tribunal held that there was no evidence that the effect of the impairment was long-term. Schedule 1, para 2(1)(b) to the Act provides that "the effect is long term if the period for which it lasts is likely to be at least 12 months."
9. It is here that we think an arguable point of law arises fit to proceed to a full hearing. It is that the Tribunal appears to have concentrated on the question as to whether the Appellant will be fit for work during the 12 month period commencing in August 1997 instead of looking at the affect the impairment has on her day-to-day activities other than work. We also observe that no account appears to have been taken of the deduced affect of the impairment without medical treatment. In these circumstances, we shall allow the Appeal against the disability finding to proceed to a full hearing. Neither side has troubled to lodge a PHD form.
10. In these circumstances, we shall list the case for ½ day, category C. There will be exchange of skeleton arguments not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged at the same time with this Tribunal.