United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P O'BRIEN (of Counsel) 1 Stonecross St Albans Herts AL1 4AA
For the Respondent	MR M SUTTON (of Counsel) Messrs Osborne Clarke Hillgate House 26 Old Bailey London EC4M 7HW


 


JUDGE CLARK

1. This is an appeal by Mr Banyard, the Applicant before an Employment Tribunal sitting at Bedford (Chaired by Mr Jeremy McMullen QC) on 13 – 15 September 1999, followed by a day's deliberation in Chambers, against that Employment Tribunal's decision dismissing his complaint of unlawful disability discrimination. That decision was promulgated with extended reasons on 6 October 1999.
2. The facts are set out in detail and with clarity in the Employment Tribunals reasons. They may be summarised as follows. The Appellant was employed by the Respondent as a Financial Adviser from 13 February 1978 until his summary dismissal on 1 October 1998. The Respondent is a large and well known organisation engaged in the selling of financial products. Their activities and those of their sales people are subject to regulation by the Personal Investment Authority (PIA).
3. Amongst the requirements of the PIA, well known to the sales force and in particular this Appellant are

(1) That where a customer is seen at his home he must be left with 'point of sale' documentation by the sales representative, showing financial quotations made at interview by the representative and

(2) The representative is required to complete a form known as the Personal Financial Review (PFR) setting out the advice given to the customer.

4. The Respondents Employee Handbook provided for a procedure dealing with dismissal for, among other things, gross misconduct. That expression included falsification of documents.
5. As a result of an investigation carried out by the Respondent it emerged that on occasions the Appellant had failed to leave point of sale documentation with the customers and that there were discrepancies between the customer's true circumstances and information recorded on PFRs.
6. The Appellant already had an unsatisfactory disciplinary record, set out in paragraph 13 of the Employment Tribunal's reasons. Further disciplinary proceedings resulted in his summary dismissal on two grounds. First, that he had breached compliance requirements when completing the sales process and second that he had falsified client details on PFR's. An internal appeal against dismissal failed.
7. On his complaint of unfair dismissal and disability discrimination the Employment Tribunal found:

(1) Unfair dismissal. The dismissal was unfair, but, by a majority, the Employment Tribunal found that he was entitled to no compensation on the basis that had a proper investigation been carried out he would inevitably have been dismissed for the falsification offences and had, by that conduct, contributed to his dismissal to the extent of 100%. There is no extant appeal against those findings, the challenge to the unfair dismissal part of the decision having been dismissed at a preliminary hearing held before a division presided over by Mr Commissioner Howell QC sitting on 25 January 2000

(2) Disability Discrimination

(a) the Appellant was disabled within the meaning of Section 1 of the Disability Discrimination Act 1995. He was dyslexic

(b) although falsification of PFR's was not attributable to his disability, the first ground for dismissal, failing to leave point of sale documentation with the customers was. The Employment Tribunal found that to this extent the dismissal was related to his disability.

(c) however, that discrimination was justified for the reasons set out in paragraph 42 of the reasons

"The next question is whether such dismissal was justified. We have accepted the Respondent's keen attention to the regulatory regime. It is justifiable in our view for an employer in this business to adopt self-regulation and to submit itself to regulation by outside regulators. In so doing, it has to devise procedures and mechanisms for all its staff to follow. It does so in respect of its field sales team. If after training of the staff these detailed procedures are not adhered to the Respondent is exposed to risk of censure by the regulator and legal action by customers. The degree of tolerance in such a regime of people who fail systematically to observe the procedures is necessarily minimal. Further attention was specifically given to the particular case of the Applicant and his difficulties in following the procedures by reference to additional training and accompanied visits. We have held that reasonable adjustments were made to assist the Applicant in coping with the work. Since he could not follow the procedures, albeit as a result of his dyslexia, we find that reason. Both the Applicant's claim under the Disability Discrimination Act 1995 are therefore dismissed."

(d) that the Respondent had not failed to make reasonable adjustments under Section 6 of the Disability Discrimination Act

8. At the preliminary hearing the appeal was permitted to proceed to this full hearing on the first two grounds of appeal only set out in the Appellant's Notice dated 14 November 1999. It is therefore to those two grounds we must we must now turn.

Ground 1

9. Mr O'Brien submits that at paragraph 42 of their reasons the Employment Tribunal failed to carry out a proper balancing exercise between the interests of the disabled Applicant and the interests of the employer, to which I referred at paragraph 36 of my judgment in Baynton –v- Saurus General Engineering Ltd (1999) IRLR 604.

Section 5(1) of the Disability Discrimination Act provides: -

5(1)"For the purposes of this Part, an employer discriminates against a disabled person if: -

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified."

Section 5(3) provides: -

"Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."

10. We reject that submission. It seems to us, analysing the factors set out in paragraph 42 of the Employment Tribunals reasons as Mr Sutton has done, that the Employment Tribunal did take into account the impact on the Appellant of the need for the Respondent to ensure hat their procedures designed to comply with the outside regulatory requirements of the PIA were observed, including dismissal. Reasonable adjustments were made to assist the Appellant in coping with the work. The Respondent has shown that the reason for the treatment in question, that is the disability related reason for dismissal, was material to the circumstances of this particular case and was not just trivial or minor (Code of Practice – paragraph 4.6.).
11. In these circumstances we can see no ground here for interfering with the Employment Tribunal's finding on justification.

Ground 2

12. Mr O'Brien submits it was not open to the Employment Tribunal to find that the Respondent had made out the justification defence under Section 5(3) in circumstances where, at the time of the internal appeal hearing, Mr Champion, the appeals manager, had not carried out sufficient investigation into the effects of the Appellant's disability.
13. We cannot accept that proposition. Section 5(3) of the Disability Discrimination Act is not precisely analogous to the requirement under Section 98 of the Employment Rights Act 1996 that an employer can only rely on the reason for dismissal known to him at the time of dismissal. We see nothing in Section 5(3) which prevents an employer from raising the justification defence simply because he had not carried out sufficient investigation. Either he can justify the treatment or he cannot. For the reasons given under ground 1 of the appeal we are satisfied that the Employment Tribunal was entitled to conclude that this Respondent had satisfied the relatively low burden suggested by Lindsay J in H J Heinz Co Ltd –v- Kenrich (2000) IRLR 144, paragraphs 19 – 20. In these circumstances it follows that in our judgment the appeal makes out no error of law on the part of the Employment Tribunal and their decision must stand. The appeal is dismissed.