United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	In person
For the Respondent


 


JUDGE COLLINS:

1. This is an appeal against the decision of an employment tribunal sitting at Liverpool. Its extended reasons were promulgated on 20 April 1999. The tribunal decided that the appellant was not discriminated against on the grounds of his disability, which was dyslexia.
2. By his Notice of Appeal dated 26 May 1996, if I may summarise, the appellant complained that he was given insufficient consideration at the hearing having regard to his disability, that he was refused the opportunity to call medical evidence, that the tribunal did not direct the respondents to produce further evidence and in sum, that their decision was perverse. Today Mr Lee has represented himself with the assistance of Mr Basu from ELAAS in the capacity of McKenzie friend. He has represented himself in a courteous and dignified manner which has been helpful to us in our consideration of his appeal. This is a preliminary hearing and it for us to decide whether or not there is a reasonably arguable point of law to justify the appeal proceeding to a full hearing.
3. The case was commenced by an originating application presented on 8 August 1997. It had a somewhat chequered procedural history. The respondents had submitted that the complaint was out of time and on 30 March 1998, an employment tribunal consisting of a chairman sitting alone dismissed the appellant's complaint on the ground that it was out of time. That decision was reviewed and reversed on the ground that it was arguable that the dismissal itself amounted to discriminatory conduct. The hearing eventually took place before a different chairman.
4. The essential history is that respondents employed the appellant at a residential special school for statemented children at secondary level. He was employed as Head of Care and member of the senior management team at salary in excess of £20,000. He has been registered disabled since 30 June 1994, his disability being dyslexia with scotopic sensitivity syndrome. His employment began on 15 April 1996 and ended on 18 July 1997 as a result of a letter signed by him on 9 April 1997 accepting voluntary redundancy, which he claims was signed under duress. The essential case made by the appellant, both before the tribunal and before us, is that he was subjected to a campaign of harassment by at least 8 members of the staff, who were determined to oust him from his position of Head of Care. The Headmaster of the school, who had particularly great authority, either connived at or condoned that campaign of harassment which arose either directly or indirectly from his disability.
5. Mr Lee has pointed out to us that the school was in turmoil during the course of his employment, as a result firstly of an adverse OFSTED inspection and secondly as a result of the arrest of a former member of staff for abusing children in his care. Mr Lee suggests that the atmosphere at the school was so tense and pressured that it was one where discrimination against persons with disability was likely to flourish.
6. The tribunal accepted that the appellant had a disability within the act and set out the twin nature of his complaints; that he was subjected to direct or indirect harassment because of his condition; that the respondents failed to comply with their obligation to make reasonable adjustments under s6 Disability Discrimination Act 1995. In paragraph 17 of their reasons, they set out the essential complaint being made but in paragraph 18 say:

"This evidence (that is the appellant's evidence) was wholly at odds with the testimony given on behalf of the Council and it was the latter testimony that we accepted…

We concluded that, from a very early stage of his employment, Mr Lee had caused considerable difficulties with his staff. He frequently treated them in a wholly unacceptable and inappropriate way, the consequence of which was that they reported him to Mr Gleave…

These problems culminated in a "petition" received by Mr Gleave on 8 November 1996, setting out specific and serious allegations of personal and professional misconduct against Mr Lee and signed (or "p.p.'d) by a number of his colleagues…We believe those allegations were well-founded and cast serious doubts on Mr Lee's ability to carry out his job roles satisfactorily."

7. From either late 1996 or early 1997, Mr Lee was on leave and did not return to work. The tribunal summarise their decision in paragraph 33 by repeating Mr Lee's case of persecution; their decision appears at paragraph 34; it is that the appellant did not receive less favourable treatment but that the school bent over backwards to accommodate him; that the difficulty which arose between him and other members of the staff was: -

"Wholly as a consequence of Mr Lee's actions."

8. Mr Lee has made a number of criticisms of the conduct of the hearing. He says that if the hearing had been conducted in a different way, the tribunal might not have come to the decision, which it did. In particular, he refers to the fact that as many as 8 people made complaints against him but only 3 of those complaints were communicated in terms to him and ventilated before the tribunal. It is his case that if the other 5 had been before the tribunal, a different picture might have emerged.
9. It is difficult to follow this argument. Mr Lee conceded that the respondents must have brought forward their 3 most striking complaints against him and it could be argued that the respondents acted responsibly by not bringing forward their other 5. But if the others had been brought forward and were not strong and had been rejected them, the 3 which they accepted would have remained. It does not seem to us that there is any substance in that complaint. He also complained that he had not been able to bring forward medical evidence. But as I have indicated it was nearly 2 years from the date of the originating application before the substantive hearing took place and the appellant had had plenty of time to bring forward such medical evidence to the tribunal as he required.
10. In our judgment the decision of the employment tribunal that the appellant was not discriminated against directly or indirectly because of his disability was a decision which they made entirely on the credibility of the evidence and we see no point of law that emerges.
11. I now turn to consider the other aspect of the case; that the respondents failed to make reasonable adjustments under ss5 and 6 of the 1995 Act. The appellant told us and we have no reason to doubt, that he is able to address himself with help and support to the paperwork which must necessarily flow across the desk of somebody, in the position of Head of Care and a member of a senior management team at a residential school. But his case before the tribunal was that arrangements should have been made to give him support; some of those are identified in paragraph 36 of the tribunal's reasons. In relation to this part of the case, we are concerned that the reasons given by the tribunal do not reveal that they addressed the specific difficulties which the appellant had having regard to his degree of dyslexia, the specific questions of paperwork and support where adjustments might have been of assistance and the specific steps which the employers did take.
12. While it might be said that in paragraph 39 they set out their conclusions in a very compressed form we do have a certain unease that paragraphs 36 to 40 compress the evidence and the reasoning to such a degree that it is impossible to have complete confidence that all the issues were correctly addressed. For those reasons we think that the question of whether or not the respondents made reasonable adjustments amounts to a reasonably arguable point of law which justifies the case proceeding to a full hearing on this issue only.