United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR C SAMEK (of Counsel) Messrs Clarkes Solicitors Great Western House Station Road Reading Berkshire RG1 1JX
For the Respondent	MR T ALLOWAY (of Counsel) Messrs Shuttani-Paul Solicitors 33-35 South Road Southall Middlesex UB1 1SW


 


JUDGE PETER CLARK: This is an appeal by the respondent employer before the London (South) Employment Tribunal sitting on 11th and 12th February 1999 against that tribunal's reserved decision promulgated with extended reasons on 12th March 1999 upholding the applicant, Mrs Jangra's complaints of both unfair dismissal and disability discrimination.

The facts

1. The respondent carried on business preparing airline meals for British Airways. It employed about 2,200 people at two sites at Heathrow Airport.
2. The applicant commenced her employment with the respondent on 26th September 1988. She was a general hand in the tray set department. She worked on conveyer belts, placing items onto aircraft meal trays.
3. On 12th May 1996 she suffered what on the face of it was a trivial accident. She hit the middle finger of her right hand against the edge of a metal strip. That caused a small cut. She washed the cut and put on a plaster and then resumed work. Later during that shift she experienced pain in her arm.
4. As a result of that incident she developed full-blown Sudeck's Dystrophy involving her neck and right arm. Between May 1996 and February 1997 she worked only 40 days. After 24th February 1997 she did not return to work prior to her dismissal on 18th September 1997.
5. She first returned to work after the accident on 6th November 1996. In January 1997 she asked her supervisor to be put onto coffee trays and that request was ignored.
6. On 12th May 1997 the company doctor wrote a report suggesting that the applicant's symptoms were hysterical in origin. She then saw her head of department, Mr Edwards on 10th June 1997 to discuss a possible return to work on light duties. That interview was adjourned pending receipt of a report from her general practitioner.
7. On 4th July her GP, Dr Patel, reported to the company doctor. In that report he said:

"This right-handed patient continues to have significant pain in whole of her right arm and significant swelling and pain of right little finger. She has been seen by consultant orthopaedic surgeon at Hillingdon Hospital who suspects Sudeck's Dystrophy. I have also referred her to Professor Maini at Charing Cross hospital for second opinion. She has tried various Ndaids, analgesics, local rubs and multiple complimentary therapy without success. I do not anticipate her to return to work in the near future. She is still currently under hospital physiotherapy and acupuncture."

8. On 31st July the applicant met again with Mr Edwards. She was still unable to give any firm, clear estimate as to when she might return to work. Even then she contemplated only a return to light duties. Mr Edwards decided to refer the matter up the line.
9. On 9th September the applicant, accompanied by her union representative Mr Grewal met with Miss Mason of human resources and Mr Dowling, who was substituting for Mr Edwards.
10. The applicant's position was summarised in a letter from Mr Dowling of that date. She felt able to return to work part-time on light duties. She could work on child meals or coffee trays on a full-time basis.
11. Mr Dowling consulted her supervisor and it was determined that the best option would be for her to work on the club belt, starting on a part-time basis and then increase her working week by one day each week, working alternative days. She would then be assessed by the company doctor after one month and would then be expected to be capable of returning to her normal work pattern. Should that not be the case, the matter would be passed over to a senior manager for further consideration.
12. On 15th September the applicant saw the company doctor. He still could not find any medical basis for her complaints. He observed that on her own account she would only be fit for limited duties.
13. On 16th September the applicant telephoned the respondent to say that she was unable to return to work as she was in pain again. Miss Mason then telephoned her to say that she should attend a meeting to be held on 18th September.
14. On 18th September, Mr Leslie, Deputy Unit Manager and Miss Mason met with the applicant and Mr Grewal. The applicant now had a two-week certificate of unfitness for work. She told Mr Leslie that she was awaiting an EMG test. Mr Leslie noted her problem, which had lasted for 16 months and adjourned the meeting for about 30 minutes. On his return he expressed the view that she had been off work for 16 months; was clearly unable to perform her duties because of her limitations; could not lift or carry anything of even small weight, and could not even shake his hand because of the pain. He had to make a decision as to her capability to perform the function of her job or any other job. He did not dispute her illness. The respondent had attempted to bring her back to work on a light duties programme and she had been unable to do so. He therefore decided that the proper course was to terminate her contract of employment based on her incapability due to ill health. In making that decision, he recognised that she had been employed for a very long time and he encouraged her to re-apply for a position with the respondent if she could demonstrate her fitness. The decision to terminate her employment took effect immediately and she received eight weeks pay in lieu of notice plus outstanding annual leave or lieu days payment.
15. Following her dismissal the applicant launched an internal appeal on 6th October 1997. Thereafter six appeal hearings were appointed by the respondent and cancelled by the applicant between 28th October and 17th February 1998. On 2nd March 1998 she attended an appeal hearing with her representative but declined to proceed on that occasion.
16. The next appeal hearing took place on 28th April 1998 before Mr Tombs. It was adjourned to consider the possibility of her working at Heathrow, subject to a medical report.
17. On 19th May 1998 her GP reported that the applicant was continuing to show symptoms and suggested that she could be tried on a rehabilitation programme but he was not sure how it would work out.
18. On 20th July she saw Dr Davies, a consultant occupational physician. He examined her and looked at her medical records. In a report dated 23rd July he noted that a diagnosis of Sudeck's Algo-Dystrophy had been made. Various treatments had been tried, including physiotherapy and drug regimes but these had not resulted in any improvement. During the past three months her symptoms had worsened; her right knee was now affected. She was unable to use her right arm for any activities. Having examined her he concluded that the prognosis of a full recovery must be guarded in view of the time which had elapsed since the original injury; he did not think that she would be fit for full duties for at least three to six months. She may be permanently unfit.
19. Following correspondence with solicitors who sought to represent the applicant at the reconvened appeal hearing, a course rejected by the respondent as being contrary to their procedures, the appeal was finally reconvened before the Finance Director, Mr Munck on 5th November 1998. He had not previously been involved in the matter. The applicant did not attend on that day, but Mr Munck proceeded to consider the appeal. He rejected it and notified the applicant of that fact by letter dated 10th November.

The Employment Tribunal decision

20. Unfair dismissal

It was common ground that the respondent had a potentially fair reason for dismissal, capability. The question for the tribunal was whether the respondent had acted reasonably under s.98(4) of the Employment Rights Act 1996.

As to that question they found:

(1) that the dismissal hearing held on 18th September 1997 had been convened far too hastily. They rejected the respondent's reason for that, namely that senior managers were unusually busy at the time because of a merger. Secondly, they held that the applicant ought to have been sent a letter making it clear that she was being invited to a meeting at which the termination of her employment was possible so that she would be prepared for it. Thirdly, there was no need to make a final decision at that meeting. The decision to dismiss was, in these circumstances, unfair.

(2) that the appeal procedures did not cure the defects of the dismissal procedures.

21. Disability discrimination

The tribunal found:

(1) that the applicant was a disabled person within the meaning of s.1 of the Disability Discrimination Act 1995 ['DDA'] at the date of dismissal. The disability from which she was suffering was Sudeck's Dystrophy. Although the question of disability was put in issue before the tribunal, that finding is not challenged in this appeal.

(2) that s.5 DDA created two separate bases for a discrimination complaint. S.5(1), less favourable treatment and s.5(2), failure to comply with a s.6 duty to make suitable adjustments. Both are subject to the employer's defence of justification. That analysis is not controversial.

(3) The provisions of s.6 apply to dismissal cases. That proposition was based on the EAT decision in Clark v Novacold [1998] IRLR 420. It has since been disapproved by the Court of Appeal in Novacold [1999] IRLR 318. Mr Alloway does not seek to uphold that misdirection. Accordingly the appeal against the tribunal's finding of a breach of s.5(2) DDA succeeds by concession.

(4) Faced with a conflict of judicial authority in the EAT between Novacold and British Sugar v Kirker [1998] IRLR 624, the tribunal chose to follow the approach in the latter case on the question of comparators for the purposes of s.5(1) DDA. The tribunal directed themselves that the question was whether the applicant was less favourably treated than other employees where the reason for her treatment – a reason related to her disability – did not apply to those other employees. Answering that question the tribunal found that the respondent discriminated against the applicant by dismissing her. The dismissal was for a reason which related to her disability and was less favourable treatment than of others to whom that reason did not or would not apply. S.5(1)(a) read with s.4(2)(d) had been satisfied. They went on to make a similar finding under s.5(2), but as indicated under (3) above that alternative finding is not supported in this appeal.

(5) Justification The tribunal found (extended reasons, paragraph 33) that the issue of justification was essentially an issue about dismissal being treated as the only course open at the time. "It is therefore an issue of the timing of the dismissal". They found that there was no evidence to justify the respondent's failure to wait at least a week or two after 18th September to see what would happen. Alternatively, she could have been given notice instead of summary dismissal with pay in lieu of notice so that the respondent retained her in employment for eight weeks and rehabilitation during her notice period could have been attempted. The respondent, the tribunal found, failed to discharge the burden of making out the justification defence.

The appeal

22. By way of background we record the following. The substantive Notice of Appeal was lodged on 12th April 1999. Prior to that Notice being lodged the tribunal directed that a remedies hearing take place. Against that direction the respondent successfully appealed (EAT/473/99). This substantive appeal was then permitted to proceed to a full hearing by Judge Levy QC and members on 19th July 1999. Thereafter the applicant failed to enter a Respondent's Answer as directed and she was debarred from defending the appeal by order of the Registrar dated 9th September 1999. An appeal by the applicant against the Registrar's Order was allowed by the President, Lindsay J on 7th February 2000. Hence this full inter partes appeal hearing before us today.

The substantive appeal

23. Unfair dismissal

Mr Samek, on behalf of the respondent, does not challenge the tribunal's finding of procedural unfairness at the initial dismissal stage (reasons paragraph 35). His submission in this part of the appeal is directed to the tribunal's finding at paragraph 36 that the appeal procedures did not cure the defects of the dismissal procedure.

24. It is well established that in determining the overall fairness of a dismissal it is appropriate to look not simply at the dismissal itself but also any internal appeal. West Midlands Co-operative Society v Tipton [1986] ICR 192.
25. The question as to when and in what circumstances an internal appeal can remedy any procedural defects at the dismissal stage was carefully considered, by reference to the old natural justice cases, by Wood J giving the judgment of the EAT in Whitbread & Co PLC v Mills [1988] ICR 776. The conclusion there reached was that such defects may be cured provided that the appeal is of a comprehensive nature, in essence a rehearing and not a mere review (795B). On the facts of that case the EAT held that the appeal was not a rehearing, but a review of what had already occurred with an opportunity to the applicant to make representations. It did not cure the earlier procedural defects.
26. On the other side of the line falls Sartor v P & O European Ferries (Felixstowe) Ltd [1992] IRLR 271 CA. There, the applicant was dismissed for stealing teabags. She then appealed internally. That appeal involved a rehearing of the evidence and an opportunity for her to state her case. The Court of Appeal held that procedural flaws at the dismissal stage were cured by the rehearing on appeal. (See per Ralph Gibson LJ, paragraph 27; Farquharson LJ, paragraph 53.)
27. In the original grounds of appeal Mr Samek attacked the tribunal's conclusion at paragraph 36 of their reasons on the ground of perversity. However, with our permission, Mr Alloway being a position after an extended short adjournment to deal with the point, he amended his Notice to add a further ground, that the tribunal had failed to give any or any adequate reasons for their conclusion that the appeal did not cure the procedural defects at the dismissal stage.
28. We see the force of that submission. Indeed, there really is no answer to it. The tribunal's conclusion is baldly stated; there are no material findings of fact as to the nature of the appeal procedure, was it to be a rehearing or simply a review? Was the applicant given a proper opportunity to state her case at the hearing fixed for 5th November 1998? How did Mr Munck approach his task?
29. In these circumstances we are driven to conclude that the respondent does not know, from the tribunal's reasons as a whole, why it lost on this critical point. See Meeks v Birmingham District Council [1987] IRLR 250. That is, in our judgment, a fatal flaw. The decision on unfair dismissal cannot stand in these circumstances.
30. Disability discrimination

We have already indicated that, by concession, the tribunal's finding that the respondent was in breach of s.5(2) DDA in dismissing the applicant cannot stand. That finding is accordingly set aside.

31. Thus the argument centres on the tribunal's finding under s.5(1) DDA. That involves consideration of two points taken by Mr Samek:
32. Less favourable treatment

We have earlier observed that in deciding this case on 12th March 1999 the tribunal preferred the approach of the EAT in Kirker to that in Novacold on the comparator question. On 25th March 1999 the Court of Appeal delivered judgment in the Novacold appeal [1999] IRLR 318. In giving the leading judgment of the court, Mummery LJ, at paragraph 52, posed two questions under s.5(1)(a).:

(1) was Mr Clark dismissed for a reason which relates to his disability?

(2) If so, did Novacold treat him less favourably than they would treat others to whom that reason would not apply?

33. As to the first question there was there, as in the present case, no dispute but that the applicant was dismissed for a reason related to his disability.
34. In answering the second question the Court rejected the comparison suggested by Morison J below, that is, with someone off work for a similar amount of time, but for a reason other than disability. Instead, the Court adopted a formulation similar to that in Kirker, followed by the Employment Tribunal in this case. The reason for the applicant's dismissal relates to her disability; it does not apply to others who are capable of performing the job.
35. Mr Samek submits that the tribunal fell into error by failing to make a factual finding that the respondent would have treated other employees, who were not disabled, differently from the applicant. We cannot accept that submission. As Mr Alloway points out, not only would a fit person not have been treated in the same way as the applicant, that is by dismissing her, but on the tribunal's findings even those with incapacitating medical conditions were accommodated on rehabilitation programmes (reasons, paragraph 31).
36. Accordingly we proceed to the real issue in this part of the appeal, Justification.
37. Justification

Having found less favourable treatment under s.5(1)(a) DDA it is then for the employer to show that that treatment is justified, s.5(1)(b).

38. By s.5(3):

"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."

S.5(5) provides:

"If, in a case falling with subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty."

S.6 deals with the duty of the employer to reasonable adjustments. But we should also refer to s.53(6) DDA which provides:

"If any provision of a code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question."

39. The relevant provision, it seems to us, in the Code of Practice issued under s.53(1)(a) of the Act is to be found in paragraph 6.21, headed 'Termination of employment'. It states:

"6.21 Dismissal … of a disabled person for a reason relating to the disability would need to justified and the reason for it would have to be one which could not be removed by any reasonable adjustment."

Then two examples are given:

"It would be justifiable to terminate the employment of an employee whose disability makes it impossible for him any longer to perform the main functions of his job, if an adjustment such as a move to vacant post elsewhere in the business is not practicable or otherwise not reasonable for the employer to have to make.

It would be justifiable to terminate the employment of an employee with a worsening progressive condition if the increasing degree of adjustment necessary to accommodate the effects of the condition (shorter hours or work or falling productivity, say) became unreasonable for the employer to have to make."

40. The question of justification under s.5(1)(b) was considered by Mummery LJ in Novacold. There, the Employment Tribunal, upheld by the EAT, found that the less favourable treatment of Mr Clark by Novacold had not been shown to be justified under s.5(1)(b). That finding was set aside on the ground that the tribunal had overlooked paragraph 6.21 of the Code. The point was remitted for reconsideration by the original Employment Tribunal.
41. Further guidance, since Novacold, on the issue of justification is to be found in the EAT decisions in Baynton v Saurus General Engineers Ltd [1999] IRLR 604 and H J Heinz Co Ltd v Kenrick [2000] IRLR 144.
42. In Baynton we drew attention to the need for a balancing exercise between the interests of the disabled employee and the interests of the employer (paragraphs 36-38). I also took the opportunity to set out the statutory sequence for considering the question of justification in a s.5(1)(a) case (Baynton, paragraph 26).
43. Turning now to the present case, it is quite clear that the tribunal have not had regard to:

(1) the material and substantial test under s.5(3);

(2) the interrelationship between the s.6 duty to make adjustments and justification under s.5(1)(b) provided for in s.5(5);

(3) the balancing exercise between the interests of employee and employer;

(4) the Code, and in particular paragraph 6.21.

44. Instead the tribunal has answered the justification question simply by reference to the timing of the dismissal. Mr Alloway submits that that is sufficient. We disagree. It may be a relevant factor, it is not determinative. It cannot be a way of short circuiting the statutory steps to which we have referred.
45. In these circumstances we have concluded that this part of the tribunal's decision is also flawed and cannot stand.

Conclusion

46. We shall allow this appeal in part and remit the following questions to a fresh Employment Tribunal for rehearing:

(1) given that the respondent has shown a potentially fair reason for dismissal, capability, but that the dismissal was procedurally unfair in the manner found by this Employment Tribunal at paragraph 35 of the reasons, did the internal appeal cure those defects so as to render the dismissal fair overall?

(2) given that the respondent discriminated against the applicant by reason of her disability by dismissing her, contrary to s.5(1)(a) DDA, has the respondent shown that their treatment of her, the dismissal, was justified under s.5(1)(b), bearing in mind the matters to which we have earlier referred?

47. One final point on justification. We invited argument from counsel as to the time at which justification must be judged. Mr Samek submitted that it was open to the Employment Tribunal to view the matter up to the date of the final internal appeal hearing, taking into account what had transpired meanwhile. Mr Alloway contended that it must be viewed as at the date of the discriminatory act, that is the dismissal. We have concluded that Mr Alloway's submission is correct. There is no true analogy with unfair dismissal law, but we think that the question here is more analogous to the reason for dismissal (see Devis v Atkins [1977] IRLR 314) rather than its reasonableness (see Tipton). This is a summary dismissal case; where dismissal is on notice the relevant date is the effective date of termination of the contract.