United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW HENSHAW (Solicitor) Instructed by: Ms R Bastin Legal Advisor - Disability Discrimination The Disability Law Service 39-45 Cavell Street London E1 2BP
For the Respondents	MR M SUTTON (of Counsel) Observing on behalf of the Respondents


 


MR RECORDED LANGSTAFF QC: This case comes before us by way of preliminary hearing in an intended appeal against a decision of the London (South) Employment Tribunal which was promulgated on 14th February 2000. The tribunal had heard evidence for five days in September 1999 followed by a day in Chambers on 15th October 1999. In their reasons they dismissed Dr Mowat-Brown's claims in respect of discrimination on the ground of disability, in respect of unfair dismissal, in respect of redundancy and of breach of contract.

1. This appeal raises issues in relation to the first two of those. There is no appeal in respect of the Employment Tribunal's determination so far as redundancy is concerned. There was an intended appeal in respect of the allegations of breach of contract. Upon more mature consideration the grounds of appeal are not pursued.
2. So far as unfair dismissal is concerned, the question is one of the impact of what is said to be a misstatement and misapprehension of the evidence by the Employment Tribunal.
3. The background was a reduction in the teaching hours of Dr Mowat-Brown, who had been employed on a succession of fixed-term contracts. The reduction was from .55 FTE (full-time equivalent) to .2.
4. The Employment Tribunal concluded that the reduction was fair and fairly carried out. Part of the reasoning relates to whether or not there was a teaching commitment which would be required of Dr Mowat-Brown which extended to and only to .2 FTE. Considerations arose as to whether or not the figures upon which this anticipated demand was based were accurate. The tribunal dealt with those concerns in paragraph 17 and in the last sentence of that paragraph say this:

"We do not consider that the Respondents were under a duty to the Applicant to check the data from which the working documents had been compiled and, in any event, the Applicant did not raise any concerns about the accuracy of the figures."

5. Before us, Mr Henshaw has argued that the last part of that sentence was false because the evidence he suggests of Mrs Collinson in cross-examination accepted that Dr Mowat-Brown had indeed raised concerns. Accordingly, the case is potentially one in which an employee seeking to establish a continuation of a teaching pattern is faced with an employer saying "we only require you for two days or .2 FTE", says to the employer "if this is the case that cannot be right these figures must be wrong", and the employer replies "so what, that is it". If that very crude approximation reflects the flavour of what happened, then there may be some importance in this part of the tribunal's reasoning. It seems to us that it probably has to be set in the context of several other findings which the Employment Tribunal also made in respect of the same issue, and that this requires the full consideration of this Appeal Tribunal at a hearing at which the respondents can be represented. Accordingly, though not without some hesitation, we are prepared to regard this point as arguable.
6. So far as the claim in respect of direct discrimination is concerned, we gave leave at an early stage in this preliminary hearing, for an amendment to the Notice of Appeal. The amendment alleges that it was not until the respondents' closing submissions that any question was raised as to whether Dr Mowat-Brown in fact suffered a disability within the meaning of the Disability Discrimination Act 1995. In the light of those closing submissions, the Employment Tribunal, having examined a report by Dr Peter Bane, concluded that he did not. They concluded that he did not because, on the basis of what Dr Bane said, they took the view that Dr Mowat-Brown, although he had multiple sclerosis did not have a progressive condition which was "likely to result in his having" an impairment which produced a substantial adverse effect on his normal day-to-day activities. Dr Bane had not been cross-examined. That gives rise to the question of whether the proper procedure for dealing with the employer's submission was adopted in the Employment Tribunal and whether, as is indicated in the Notice of Appeal, Dr Mowat-Brown would have been in any position to call evidence of his own to challenge that evidence or to require that the evidence of Dr Peter Bane as to prognosis be given orally, particularly in the light of the different interpretations that a medical report might give rise to. It also gives rise to the question of whether the Employment Tribunal were entitled upon a fair reading of the medical report to come to the conclusion which they did, and it further gives rise to a difficult point as to what requires to be proved under paragraph 8 of Schedule 1 to the 1995 Act. It is the submission of Mr Henshaw that once one establishes that a condition is properly to be classified as a progressive condition and, therefore, it will, by definition, progress and produce worse effects upon the individual, that it is inevitably likely to result in an impairment such as referred to in the paragraph. That submission and the way in which it relates to the wording of paragraph 8 seems to us to require the further consideration of the Employment Appeal Tribunal.
7. Accordingly, on those grounds, having indicated a little of our reasoning for the assistance of the Appeal Tribunal when it comes to determine the appeal, we think that this is a matter which should properly be heard by a full tribunal.
8. We consider that the case will take more than half a day but less than a full day, therefore, four hours should be allowed; that the Chairman's notes of the evidence given on 10th September 1999 given by Mrs Collinson should be provided and are necessary to resolve the issues that arise in respect of unfair dismissal. We will of course expect skeleton argument from both sides to be provided no later than two weeks in advance of the full appeal. The case is to be listed as Category B.