United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P EDWARDS (of Counsel) WELLERS Tension House Tweedy Road Bromley BR1 3NF
For the Respondent


 


JUDGE CLARK

1. The Appellant Miss Bryce, has been continuously employed by the Respondent since 2 October 1972.
2. On 19 March 1999 she presented a complaint of unlawful disability discrimination against the Respondent. The material allegation was that the Respondent had operated a continuous policy of not promoting her on grounds of her disability. Specifically, she alleged that she had not been promoted to the post of Home Arranger on grounds of her disability. That was a claim under section 5(1) of the Disability Discrimination Act 1995. By their Notice of Appeal the Respondent denied less favourable treatment under section 5(1). They did not raise the defence of justification. It was common ground that the Appellant was disabled for the purposes of section 1 of the Act. She suffered from a form of intermittent but long-term depression.
3. The substantive hearing of that complaint took place before an Employment Tribunal at Ashford (Chairman: Mrs Valerie Cooney) on 11-12 October 1999.
4. By a reserved decision promulgated with extended reasons on 18 November 1999 that Employment Tribunal found that she had been less favourably treated within the meaning of section 5(1)(a) of the Act, but then went on to consider the question of justification under section 5(1)(b) and 5(3) of the Act.
5. We are told by Mr Edwards, who appeared below, that the question of justification arose in this way

Following completion of the evidence the Respondent's representative, a solicitor Mr Hine, first addressed the Employment Tribunal in closing. Mr Edwards then followed on behalf of the Appellant and in passing mentioned to the Employment Tribunal that the issue of justification was not live in this case. In his reply, Mr Hine then raised an argument on justification. Objection to that point being raised at such a late stage in the proceedings was taken by Mr Edwards, but the Employment Tribunal ruled that justification was an integral part of a complaint of unlawful disability discrimination and ought to be considered. The evidence was not re-opened and our impression at this preliminary hearing is that the matter was dealt with incompletely in submission as well as there being the difficulty that no evidence was led or cross examination directed to that issue during the course of the hearing.

6. The Employment Tribunal found that the defence of justification was made out and dismissed the complaint. Against that decision the Appellant now appeals.
7. We have had the advantage of a detailed skeleton argument prepared by Mr Edwards, and amplified in oral submissions. Dealing first with the procedural complaint mentioned above, we think that this point is arguable and ought to proceed to a full hearing. For that purpose we shall direct that the Appellant or her adviser lodge an affidavit within 28 days of today's date setting out the Appellant's account of what happened at the close of the hearing before Mrs Cooney's Tribunal, so far as the issue of justification was concerned. A copy of that affidavit will then be provided both to the Respondent who may put in an affidavit in reply within a further 21 days and for the comments of the Chairman, Mr Cooney.
8. In addition to that procedural point Mr Edwards has satisfied us that the further points identified in his skeleton argument based on the grounds of appeal in the Notice of Appeal are also arguable and therefore the appeal will proceed as presently constituted. We give this further direction. At paragraph 28 of the Employment Tribunal's reasons they say this

"The Respondent's case for saying that there is justification consisted of asking us to look at what the Respondent's regards as the essential attributes of an employee carrying out the duties of a Home Adviser. These are set out at paragraph 13 above and there is consistent evidence from Mr Aldridge, Mrs Oakford and Mrs Daws that, from their observations, the Applicant did not possess those attributes and therefore she could not carry out those duties satisfactorily."

9. There is a blunt challenge to those findings of fact; Mr Edwards tells us that Mrs Daws, the most recent Line Manager responsible for the Appellant gave evidence to the contrary effect. In order to test that argument we shall direct that the Chairman be asked to provide her notes of the evidence given before the Employment Tribunal by all those 3 witnesses, that is Mr Aldridge, Mrs Oakford and Mrs Daws.
10. Finally we shall direct that this case be listed for 1 full day category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with this Employment Tribunal at the same time.