United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr D Martin (of Counsel) Instructed by Solicitors Russell-Cooke Potter & Chapman 2 Putney Hill London SW15 6AB


 


JUDGE COLLINS : This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at London North, their extended reasons having been promulgated on 19 October 1999. The case had been a substantial one before the tribunal. It occupied a total of six days, three in June and three in August. It was a claim for discrimination under the Disability Discrimination Act 1995.

1. There had originally been a claim for unfair dismissal but it was held that that claim was out of time. The case before the tribunal had alternative claims. One was that the appellant had been discriminated against in relation to her dismissal in May 1998 from her position as a Rehousing Officer employed by the respondent council. The other was a claim that she had been discriminated against by the failure of the Council to make reasonable adjustments pursuant to their duty under Section 6 of the Act. The tribunal rejected both of those complaints.
2. By her notice of appeal dated 7 December 1999, the appellant makes a number of criticisms of the reasons of the tribunal and the procedure before the tribunal. In relation to the claim for discrimination based on the dismissal, Mr Martin points out that in the judgment of the tribunal on this part of the case which begins at paragraph 10 they effectively deal with the respondents' decision to dismiss the appellant on the grounds of long term ill health as if they were considering a claim for unfair dismissal. their decision on this question set out in paragraph 15 is one they could have been expected to state in those terms had they been considering an application for unfair dismissal.
3. Mr Martin argues that because the legal tests in relation to unfair dismissal and disability discrimination are different, the tribunal should have expressly addressed itself to the provisions of Section (5)(1) and Section (5)(3) of the 1995 Act before deciding that it could dismiss her complaint that she had been unlawfully discriminated against on account of her disability in relation to her dismissal. He is correct in pointing out that the tribunal does not couch its decision in language of the 1995 Act.
4. It was put to Mr Martin during the course of his argument that the result would have been no different on that account. It was suggested that if the tribunal decided that the respondents acted fairly in treating Ms Fu's long term disability as a reason for dismissing her, that precluded any suggestion that she had been discriminated against under the 1995 Act. He points out in answer that there is a difference; in relation to unfair dismissal, the question is whether the employers acted fairly, whereas under the 1995 Act, the tribunal has to make its own objective judgment as to whether the treatment of the employee was justified, the reason being both material to the circumstances of the case and substantial.
5. It seems to us that it would be wrong to dismiss that argument at a preliminary hearing. It is one that is reasonably arguable and although it is not a first sight easy to see that a decision which has been made by an employer, which a tribunal after consideration has decided to be fair, is one which is nevertheless discriminatory, it ought be open to Mr Martin to advance that argument at a full hearing.
6. There is a subsidiary question raised in the notice of appeal. One of the reasons why the tribunal found that the employers had acted fairly in dismissing Ms Fu on the ground of her long term disability was that Dr McGrath, who at one time had worked for the respondents in their occupational health department, concluded that she had an underlying medical condition which meant that she was permanently incapable of carrying out any job for the respondents for medical reasons. Mr Martin contends that the tribunal should not have relied on Dr McGrath's evidence. The reason is that at an earlier directions hearing, he had been refused leave to call medical evidence on behalf of the appellant and the only terms on which he consented to the evidence of Dr McGrath being placed before the tribunal was that they would rely on him as a witness of fact only and not as a witness of expert opinion.
7. This matter is referred to paragraph 13 of the tribunal's reasons and it seems to us that at the least that there was some confusion between Mr Martin and the tribunal as to the terms on which Dr McGrath's evidence was to be admitted. Although we are ordering that this appeal to a full hearing in the relation to the Section (5)(1) discrimination point, this is a subsidiary ground which will have to be dealt with and as to which the Chairman's notes will be needed.
8. The other basis of the appellant's claim was in relation to reasonable adjustments. Her disability, which was not in dispute, was a result principally of injuries received after a series of unfortunate accidents, and questions of her mobility were at the top of the list. There were a number of specific matters which are listed on Page 2 of Mr Martin's skeleton argument which were put forward by the appellant as matters which should have been done by the respondents and which, had they been done, would have made it possible for her to do her work.
9. In our judgment it is arguable that the appropriate way for the tribunal to deal with these, was to address them one by one, saying which adjustments had been made and which not; and in relation to those adjustments which had not been made to explain why, by reference to s5 (4) of the Act, the reason for the failure was justified on the ground that it was both material to the circumstances of the particular case and substantial.
10. It does not appear at first sight that reasoning of that kind played a part in the tribunal's processes and accordingly it seems to us reasonably arguable that the claim based on a failure to make reasonable adjustments was simply not dealt with by the tribunal in accordance with the statutory framework. There is no reference to s5 and the justification provisions and there is no reference to the Code of Guidance. For all these reasons, we believe that this appeal should proceed to a full hearing.