United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J LEWIS (of Counsel) Instructed By: Messrs Jaklyn Dawson & Meyrick Williams Solicitors Equity Chambers John Frost Square Newport Gwent NP20 1PN
For the Respondent	MR A FREER Legal Officer Instructed By: GMB National Legal Dept 22-24 Worple Road London SW19 4DD


 


JUDGE PETER CLARK:

1. The applicant before the Southampton Employment Tribunal, Mr Chandler, was employed by the respondent, Pedus, formerly Crystal Cleaning Co (UK) Ltd, from 11 September 1997 until his summary dismissal on 22 April 1998, as a general cleaner at a customer's site in Eastleigh, Hampshire. He is epileptic and, it is accepted, disabled within the meaning of section 1 of the Disability Discrimination Act 1995.
2. Following his dismissal he presented a complaint of unlawful disability discrimination to the Employment Tribunal on 22 July 1998. The application was drafted with the assistance of his trade union representative, Mr Stokes. His case was that in February 1998 his medication changed and as a result he had to take time off sick until the correct dosage was found. He claimed that once fit to return his manager at first would not allow him back to work. After producing a letter from his general practitioner he was allowed back, but the company's attitude towards him changed. They altered his hours of work and reduced his pay and when he complained he was dismissed. He claimed that his dismissal was by reason of his disability.
3. In their Notice of Appearance the company gave a quite different version of events. They claimed that the applicant was summarily dismissed for gross misconduct in using extreme verbal abuse and the threat of immediate physical violence towards his manager in the presence of another employee. His disability had nothing to do with his dismissal.
4. The matter came before a full tribunal chaired by Mr Neil Jenkinson on 14 December 1998. In their decision with extended reasons promulgated on 18 December 1998 the tribunal found as a fact that, contrary to the applicant's pleaded case, his rate of pay was not altered following his return to work, nor were his hours materially reduced. They therefore rejected his primary factual case.
5. Turning to the events of 22 April 1998 they found that an incident occurred between the applicant and his manager, Mrs Caddick. Mrs Caddick did not give evidence before the tribunal but the other employee referred to in the respondent's Notice of Appearance, a Mr Jarman, did. It was Mr Jarman's evidence that Mrs Caddick asked the applicant if he had done what she had asked him to do, to which he replied "I am not slogging my fucking guts out for the company". When Mrs Caddick pointed out that that was his job he became abusive and threatening towards her and Mr Jarman thought he was going to hit her. He then stepped in and told the applicant "You can't talk to the boss like that. She is only doing her job". Following this incident the applicant was summarily dismissed owing to his attitude and the lack of work and he was asked to leave the site.
6. The applicant gave a different account in evidence. He denied raising his voice. Although he allowed that he might have got a bit angry, he denied swearing, using abusive language or threatening Mrs Caddick.
7. Faced with this complete conflict of evidence the tribunal, by a majority, accepted Mr Jarman's account in preference to that of the applicant.
8. Pausing there it might be thought that that was the end of the applicant's case. The entire factual basis of his complaint had been rejected.
9. However, the tribunal, by a majority managed to uphold the complaint of disability discrimination. The majority reasoning is contained in paragraph 7 of their reasons, which reads as follows:

"7. The majority say that for those reasons although his rudeness was the ostensible reason for the dismissal, Mrs Caddick should have been aware that it was related to his disability as a result of the stress arising from their discussion on 22 April 1998. Therefore the dismissal, his detriment, was for a reason which related to his disability and that this was less favourable treatment than the Respondents would have given to others to whom that reason, namely epilepsy, does not apply."

10. The minority member could not agree with that reasoning. He concluded that since there was no medical evidence to show that the applicant's reaction on 22 April was as a result of his disability, the necessary causal connection between that disability and dismissal was not made out. Accordingly he would have dismissed the complaint.
11. The majority view prevailed and the tribunal went on to assess compensation at a total figure of £5,194.
12. Against that decision the company appealed.
13. It is convenient at this stage to refer to paragraph 6 (i) (a) and (b) of the amended grounds of appeal, which say:

"6. The grounds upon which this appeal is brought are that the employment tribunal erred in law in that

(i) having found that the Appellant was dismissed for rudeness ('… the ostensible reason …' – paragraph 7 of extended reasons) the tribunal's further finding that such behaviour on the part of the Respondent was related to his disability (epilepsy) was unsupported by evidence and was an inference to which the tribunal was not entitled to come for the following reasons:-

(a) there was no evidence to support the suggestion that the Respondent's misconduct was caused by stress: and/or

(b) there was no evidence to support the allegation that the alleged stress was due to the Respondent's disability."

14. The appeal came on for preliminary hearing before a division on which I sat on 15 June 1999. We allowed the appeal to proceed to a full hearing and on a subsequent occasion, on 1 December 1999, I gave a direction that the Chairman be asked to say, from his notes of evidence, whether there was any medical evidence connecting the applicant's behaviour on 22 April with his medical condition and its treatment and/or whether he was suffering from stress on that day as a result of his condition and/or its treatment. By a letter dated 16 December 1999 the Chairman replied to that enquiry in the negative. He said, having read his notes of evidence, that there is no reference to any medical evidence connecting the applicant's behaviour on 22 April 1998 with his medical condition and its treatment and no evidence as to whether he was suffering from stress on that day, as a result of his condition and/or treatment.
15. In these circumstances, at this full hearing, Mr Freer on behalf of the applicant concedes that he cannot resist the company's grounds of appeal at paragraph 6 (i) (a) and (b) which we have set out earlier.
16. In accordance with our usual practice, see J Sainsbury Plc v Moger [1994] ICR 800, we have ourselves considered the matter independently. We do not set aside the reasoned decision of an Employment Tribunal simply by consent of the parties.
17. In our judgment that concession is plainly right. The applicant failed to make out his case on the facts. The majority decision of the tribunal has no factual foundation at all. The causal connection between disability and dismissal simply was not made out. In these circumstances the tribunal decision cannot stand and must be set aside.
18. However, that does not end the matter. Mr Freer submits that the proper course is for this Employment Appeal Tribunal to remit the case to a fresh Employment Tribunal for rehearing. He submits that the Employment Tribunal majority fell into error by not raising with the parties the basis on which they found in favour of the applicant. He submits that the way to remedy that error is to remit the case so that the point on which the applicant succeeded on the last occasion can properly be dealt with, if necessary, with the benefit of medical evidence.
19. Mr Lewis opposes such a course. He submits simply that the tribunal's majority decision had no basis in the evidence. It was not the applicant's pleaded case and there was no finding of fact to support it. In these circumstances the company defeated the applicant's case on all counts. It would be wrong in these circumstances to allow him a second bite of the cherry in order to advance a quite different case.
20. It seems to us that Mr Lewis' submission is correct. We appreciate that having allowed this appeal it is open to us, either to affirm the tribunal's decision notwithstanding a misdirection in law, that option does not arise in this case or, if further findings of fact are necessary to remit the matter to the same or a different tribunal, or thirdly, to substitute a different finding for that of the original Employment Tribunal in circumstances where we find, as a result of the tribunal's misdirection, that the result was plainly and unarguably wrong: see Hellyer Brothers Ltd v McLeod [1987] ICR 526.
21. This is a case in our judgment in which the decision of the majority was plainly and unarguably wrong on the basis of the findings of fact made by the Employment Tribunal. On those findings there could only be one outcome and that is that the complaint was dismissed. In these circumstances we shall allow the appeal and so direct. The complaint of disability discrimination stands dismissed.