United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JONES (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK: By an Originating Application dated 18 May 1998, the Appellant, Mr Wiggett, claimed that he had been unfairly dismissed and discriminated against for a reason relating to this disability by his former employer, the Respondent Holgran Limited.

His complaints came before an Employment Tribunal sitting at Leicester on 6 July and 1 September 1998. By a majority the Tribunal found that he had been unfairly dismissed, but unanimously rejected his claim of disability discrimination. Against that latter finding he now appeals.

Today he is represented by Mr Sean Jones of Counsel under the ELAAS pro bono scheme. Mr Jones has put before us three submissions in support of the appeal.

We say at once that we do not regard the second and third submissions which deal with the employer's knowledge and the finding at paragraph 12 that the decision to suspend the Appellant from fork lift truck driving was a sensible precaution taken on Health and Safety grounds whilst proper medical advice was sought and was lifted immediately such advice was found to be positive, said to be a perverse finding of justification for the purposes of the Act, as raising arguable points of law.

The point with which we are particularly concerned is the first submission, which focuses on paragraph 13 of the Tribunal's Extended Reasons. There the Tribunal refer to the decision of this Tribunal in Clark v Novacold Ltd [1998] IRLR 420, Mr Justice Morison presiding in concluding unanimously that the Applicant was not treated less favourably under section 5(1) of the Disability Discrimination Act 1995 as a non-disabled employee with a similar record to the Appellant would have been dismissed by the Respondents. We are aware that the decision in Clark v Novacold is presently being considered by the Court of Appeal. We think the right course in this case is to stay the appeal, pending the outcome of the Court of Appeal deliberations in Clark v Novacold. Once that judgment is to hand, I shall give further directions for the disposal of this appeal. That is to say either it will be relisted for a preliminary hearing and it will then be a matter for the Appellant whether he wishes to pursue the appeal in the light of the Court of Appeal's decision in Clark v Novacold or alternatively, I shall direct that the case proceeds to a full appeal hearing on the comparator question raised in paragraph 13 of the Tribunal's reasons. In those circumstances the appeal is stayed.