United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A KINGSLEY (OF COUNSEL) (Instructed by) Messrs Khalique Kingsley Solicitors 115 Hoe Street London E17 4RX


 


JUDGE WILSON: This has been a preliminary hearing of the proposed Appeal by the original Applicant before the Employment Tribunal against their decision that her claims in respect of disability discrimination and unfair dismissal should be dismissed, although her claim in respect of breach of contract for unpaid sick pay succeeded as set out in the body of their decision.

1. The Appellant had entered a Notice of Appeal in layman's terms and states in the course of it that she proposes, if she can, to seek legal advice and help. In the event, that is what has happened and she has been represented today by Mr Kingsley of Counsel, who has remedied the defects of knowledge of which the Appellant, as a lay person, was well aware. He has outlined two proposed points and seeks leave to redefine the grounds of appeal.
2. The facts of the matter may be briefly stated. The Appellant is a senior nurse who had been employed by the Respondent Trust and sustained an injury in the course of her duties when she was moving a patient. In due course, she was dismissed on the ground of capability and brought her claim before the Tribunal. It was heard on 2 days in January of this year. The Tribunal's decision is an exhaustive consideration of the facts and the law which runs to 25 pages of A4 typescript.
3. Mr Kingsley submits that when one has regard to the findings to do with the Disability Discrimination Act which are set out in particular in paragraph 9(xviii), (xix) and (xxii) and paragraph 10(i), there is a fundamental misdirection. The Employment Tribunal, in finding that the Appellant was not within the terms of the Act because her disability had reduced to minor only before the 12 month qualifying period had expired, fell into error. They took that decision at a time, namely early March 1999, which was well within the 12 month period. But at that time, the disability certainly qualified under the Act and there was no indication when, if at all, it might improve. Therefore, says Mr Kingsley, it is arguable that at the time of the dismissal in March, because the Applicant was seriously disabled at that time, she was within the terms of the Act and therefore, the Employment Tribunal fell into an error of law in directing itself as it did.
4. Secondly, so far as the claim for unfair dismissal is concerned, Mr Kingsley relies upon the fact that it is clear from the decision that the Respondent Trust should have sought consultants' advice because that is what Dr Glenn said was required before he could advise the Trust about prognosis. The Tribunal came to a different conclusion and said that it was not necessary for that to be done. On the other hand, of course, it was known that the Appellant was being seen by a specialist. Mr Kingsley says that it is arguable that, particularly a Hospital Trust as an employer, should avail itself of consultant level advice about prognosis, particularly when it is contemplating a dismissal on the grounds of capability.
5. Thirdly and finally, the Tribunal has been concerned about the interpretation of the limits of the contractual right to sick pay which is expressed in paragraph 10(ii)(c) of the decision. This is a further point which Mr Kingsley adopts and seeks leave to argue in his Amended Appeal.
6. In our view, the matter should proceed to full argument on all three points. Specifically, the questions are phrased as follows:

I. Whether the Employment Tribunal misdirected itself in finding that the Appellant did not fall within the provisions of the Disability Discrimination Act because, at the time of dismissal, which was within the 12 month period, she was without question, seriously disabled, and whether in fact, because that decision was taken at that time, the Employment Tribunal fell into error.

II. Whether it was unreasonable for the Respondent Trust to proceed to a dismissal on grounds of ill health without the benefit of a consultant's view of duration and prognosis

III. Finally, whether the interpretation of the limits of the contractual right to sick pay, as expressed in paragraph 10(ii)(c) of the Decision, is correct.

7. On those three grounds we think the matter should proceed to full argument. We give leave for an Amended Notice of Appeal setting out those grounds to be substituted for the Appellant's Notice of Appeal. We are aware that there is a representative of the Respondent Trust present at this Hearing as an observer and we order that the Respondent shall have 14 days from the date it receives a copy in which to make representations, if it wishes, concerning the Notice of Appeal. We direct that skeleton arguments should be filed with the Tribunal and exchanged between the parties 14 days before the date set for the hearing of the Appeal.
8. We direct that the matter be placed in Category B with a time estimate of 3 hours.