United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M DUGGAN (of Counsel) Shacklocks Solicitors 19 The Ropewalk Nottingham NG1 5DU


 


JUDGE HAROLD WILSON: This has been the preliminary hearing of the proposed appeal by the original applicant concerning the decision of the Employment Tribunal. It is one of those rare cases where it is unfortunate that we cannot dispose of the entire of the matter.

The facts can be shortly stated. The applicant was a care assistant in a home for elderly, and frequently handicapped people, who started work there in July 1993. In June 1997, although still a relatively young woman, she suffered a severe stroke. After she had made a partial recovery from the stroke, she kept the respondents posted about her progress and, at all stages, said that she wanted to return when she was able to do so. Of course, the nursing staff in charge of the respondents' home were professional people who well knew the after affects of strokes, but did not know the latest provisions of the law concerning disabled people. With the best intentions in the world, as was accepted by the Employment Tribunal, they dismissed the applicant, the appellant before us, at the end of December on capability grounds.

At paragraph 15 of the decision by the Employment Tribunal it was stated:

"We hold that the employer has failed in the duty imposed under Section 6 [Disability Discrimination Act 1995] and has therefore discriminated against unlawfully the Applicant, not with malice, but simply by not actually at the time applying their mind to the checklist. We don't know whether the application [for paid physical help in her job] would have been granted or not. We are told more likely than not it would and we approach it on that basis."

The tribunal then proceeded to a quantification of compensation, and it is really that about which Mr Duggan, on behalf of the applicant, complains. We think he does so with reason, because the way in which it was approached, in our judgment, was quite clearly an error in law. We think that the matter should go forward for full hearing and argument on the following three questions:

(1) Whether the Employment Tribunal erred in law in failing to direct that medical evidence should be adduced by the parties in order to help the tribunal decide whether the applicant would be fit to undertake other employment.

(2) Whether the tribunal erred in law in failing to consider the true loss of earnings of the applicant arising out of the discriminatory acts, instead of arriving at a figure without any rational basis for the figure chosen.

(3) Whether the tribunal erred in law by failing to consider whether the appellant could have remained in employment and whether the respondents should have made a reasonable adjustment on that basis, and whether they, by reason of that failure, further erred in law by failing to consider quantum based on the applicant's ability to remain in the employment of the respondents.

We note that, spontaneously, the Chairman in this case had written to recognise that the matter really did need further consideration, and we applaud his frankness and candour in taking that course of his own initiative.

The matter, we think, should be Category A and should be heard by a tribunal chaired by the President, if at all possible. A time estimate of three hours is appropriate.