United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr. P.K.Thompson, solicitor Dibb Lupton Alsop Birmingham
For the Respondent


 


JUDGE COLLINS :

1. This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at Leeds whose extended reasons were promulgated on 12 November 1999. By their decision the tribunal dismissed the respondent's claim that she had been dismissed by reason of redundancy but upheld her claim that she had been unfairly dismissed and that she had been discriminated against within the meaning of the Disability Discrimination Act 1995. They adjourned the case for remedies to be considered.

2. A number of criticisms are taken in the Notice of Appeal dated 24 November 1999. The most immediate are a failure to take into account the code of practice, a failure to direct themselves properly as to the test under s.5(3) as to when discriminatory treatment is justified and a failure to have proper regard to the well established authorities dealing with when an employer may dismiss any employee who has been long term ill.

3. The brief history is that the respondent Mrs Sampson is now 59 years old. She worked for Abbey National in Bradford from 10 October 1977 until 19 December 1998 as a Customer Service Advisor in the Deeds Department. There was a reorganisation in May 1997,which coincided with her being off work for stress and hypertension and what was described as figure dyslexia. She never returned to work thereafter.

4. According to the tribunal the appellants took a good deal of trouble to monitor her health and to see whether or not there was any chance of her returning to work. She was offered according to paragraph 2(e) of their reasons a total of 3 jobs, one of which she did not feel she could do and both parties subsequently agreed was inappropriate. But it is also said that 2 other posts were offered to her which she felt were not comparable in status or interest. In any case the medical evidence seemed to suggest that from May 1977 until the date of the hearing she had never recovered to the state where she was likely to be able to return to work. I refer to paragraph 2(h) of the reasons where it said that medical reports indicated a deteriorating picture. The tribunal noted that the appellants had found that the most recent consideration involved a search within the Bradford area for a job with no requirement for numerical competence but none had been located.

5. It was accepted that for the purposes of the tribunal hearing that Mrs Sampson had a disability which had a substantial and long-term adverse effect on her ability to carry out normal day to day activities. The discrimination which she relied upon was her dismissal. The tribunal looked at the disability discrimination case first, made a decision and then made a decision in relation to the unfair dismissal which for practical purposes followed automatically from their decision under the 1995 act.

6. We think that the tribunal may have failed to distinguish adequately between the two different claims. In relation to the claim for unfair dismissal they said that there was no good reason or cause to dismiss because the underlying truth was that her absence was due to a disability. It needs no citation of authority to establish that if someone is long term sick and there is no evidence that they are likely to return to work, provided the employers carry out a proper procedure and investigation there are entitled to treat that as a reason for dismissing the employee. So it is not easy to follow the reasoning of the tribunal in relation to that.

7. The other matter, on which Mr Thompson, who appears for the Appellants rely, relates to the 1995 act claim. An employer can justify treatment which would otherwise be discriminatory if he can show first the reason and second that, the reason is material and substantial. In this case, the employers admit and accept that they dismissed Mrs Sampson because of her long term ill health. It follows that if she had not been sick and in long term ill health they would not have done it. Therefore it is prima facie discriminatory; they argue it is justified because first, the medical evidence suggested that there was no realistic prospect in the foreseeable future of her returning to work and second, because all possible alternative employments that had been offered to her had been rejected.

8. It seems to us that are arguable that the tribunal did not analyse those reasons adequately in terms of the act and their decision that she was discriminated against under the act is potentially flawed for that reason. All that is necessary for us today is to say that we regard these matters as reasonably arguable and the matter must proceed to a full hearing.