United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR SIMON CHEETHAM (of Counsel) Instructed by Messrs Ingram Winter Green Solicitors 26-28 Bedford Row London WC1R 4HE


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a preliminary hearing the appeal of Tiny Computers Ltd in the matter Mr T C Steele v Tiny Computers Ltd. On 11 November 1998 the Employment Tribunal received Mr Steel's IT1 and the complaint that he made was "failure to supply a P45 written reasons for dismissal, disability discrimination". He gave as the end date of his employment 25 September 1998. In his more detailed specification of his complaint he said, as item 3:

"I have [been] discriminated for being hard of hearing and the Sales Director gave authority for a senior sales staff to sack me."

and also he said:

"I was dismissed for supplying illegal software but it proved my innocence and was unaware of what I posted."

1. Plainly this was no ordinary disability discrimination case and the IT3 that the employer put in on 1 December 1998 made that clear because what they say at their item 6 is:

"Mr Steel was summarily dismissed for supplying an illegal pirated copy of Microsoft Office Small Business Edition to a customer."

and that aspect of things was developed in the IT3 and also the IT3 mentioned that there had been no earlier complaint of disability. What they say at their item 8 is:

"Mr Steele has not made any member of the personnel team or his line managers aware of any discrimination until after his dismissal. Therefore to enable a thorough investigation more specific information must be supplied."

For example, they say, when did the discrimination occur and so on. We do not need to go into that.

2. On 4 December 1998 a Chairman directed that there should be a preliminary issue on the sole question, it would seem, of whether Mr T C Steele was a person with a disability within Section 1 and within the provisions of the Schedule to the Disability Discrimination Act 1995, as to which one needs to bear in mind what Section 1 says, namely:-

"… a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."

Hearing is mentioned in the Schedule; see Schedule 1 paragraph 4(1)(f).

3. The wisdom of separating out a single issue of that kind may be doubted. There is at least a possibility that evidence on other parts of the case is likely to touch upon whether Mr Steele had any impairment which has a substantial effect which is long-term, and which related to his ability to carry out normal day-to-day activities. All too easily one can get to a situation in which, looking only at the single question, a Tribunal might decide it otherwise than it would have decided it had they heard the whole case together. There is, at any rate, in our minds, real doubt as to the wisdom of separating out a single issue of this kind. But that was what was done; that is water under the bridge.
4. Today Mr Cheetham of Counsel, who appeared below, cites from the decision of the Tribunal their paragraph 8. There, the Tribunal said:

"The Applicant has not worn a hearing aid for at least two years. The Applicant can hear normal speech only when there is little or no background noise. The Applicant practises lip reading. He must lip read in order to understand speech, and can therefore only communicate when the other person is speaking directly facing him, and he when has an unobstructed view of their lips. Without either the ability to lip read or without the person speaking clearly to him the Applicant is unable to hear normal speech. So long as the appropriate conditions exist the Applicant has no difficulty hearing speech."

5. Mr Cheetham adds a reference, taking in from paragraph 9:

"The Applicant had no difficulty hearing speech, whilst he worked for the Respondent Company, since that was not a noisy environment."

and also paragraph 10:

"The Applicant described that typically, he was unable to hear, for example if he was sitting on a bus which was running or if somebody spoke to him on a busy street with traffic noise in the background and called him from behind. Other than this, his hearing did not have more than a medium effect on his normal day-to-day activities."

6. Mr Cheetham urges that that paragraph 8 is inconsistent with the evidence that was given. As to that, his Skeleton says this:

"This finding is wholly inconsistent with the following evidence given by the Applicant:

(1) He has no difficulty using the telephone "on a normal line" and much of his work now and with the Respondent involved use of the telephone.

(2) He did not wear – and he did not need to wear – a hearing aid when employed by the Respondents, nor does he need to wear a hearing aid in the extremely noisy environment in which he now works, nor in his day-to-day life."

7. Mr Cheetham also alleges that the evidence included Mr Steele in turn saying:

"The Applicant also gave evidence that he "copes well" with his current employment, making only minor adjustments."

The Skeleton Argument put in by Mr Cheetham also complains of what appears to be a rather summary, or inadequate, response. In his paragraph 11 Mr Cheetham in his Skeleton says:

"The Applicant answered a Tribunal member's question, as follows:

Q: If you weren't looking at me, could you hear me?

A: Not really.

It appears that the Tribunal's findings are based entirely upon this response. Yet this wholly ignores everything else that the Respondent said in evidence."

8. Against that challenge it is, in our view, not possible to take the argument further without the Chairman's notes to see whether there really is a position in which paragraph 8 of the Tribunal's conclusions, in particular, were inconsistent with the evidence given by Mr Steele or on his behalf.
9. So what we do at this stage is adjourn the matter generally for the Chairman's notes of Mr Steele's evidence and indeed of any other evidence that bears upon the question of disability or nay. When the matter returns to the EAT the EAT will need also to see whatever documents were put in by either side. There was a reference in paragraph 2 of the Extended Reasons to "the following documents", and those will be necessary to be put in and, if there are other documents that were laid before the Employment Tribunal, they too, should be sent up to the EAT when the matter is restored. But all we do at this stage is adjourn the matter for the Chairman's notes and the supply of the documents. The Chairman should be invited to comment upon Mr Cheetham's Skeleton Argument and, in the light of this judgment, all we do therefore is adjourn generally for that purpose.