United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B UDUJE (of Counsel) Instructed by: Legal Services Northamptonshire County Council PO Box 104 County Hall Northampton NN1 1AW


 


JUDGE D PUGSLEY

1. This is a troubling decision and we are here only to see if there is an arguable point of law, and we hasten to add that whilst we are concerned about aspects of this case, we do not wish in any way for any view we have expressed to be taken as saying and deciding more than whether there is an arguable point of law.
2. May we just say this: Skeleton Arguments are extremely helpful, not least of which because they enable a Tribunal to concentrate on the merits of the arguments without the need to note them, but we do consider there is a propensity, and I say this with full authorisation, as expressing the views of the members who sit more frequently than I do, to allow Skeleton Arguments to subsume within them, what the grounds of appeal are, so it is not clear, on looking at the papers, what the exact issue is. In this case, buried within the amended grounds of appeal, we give leave for those to be preferred, is a real issue.
3. The particular circumstances of this case can be very briefly narrated. Ms Doughty was employed by the County Council effectively, through a Respondent company as a Careers Officer. She began in 1996 to suffer from serious back pain and was admitted for some treatment to hospital in November 1996. The company were anxious to retain her services, and its Chief Executive, at that stage Mr Morris, made active enquiries as to the adjustments that could be made to retain her services. Mrs Tansi Harper took over the role of Chief Executive in April 1998, and Mrs Harper met with Ms Doughty in June of that year and the Applicant took the opportunity of bringing up and explaining the issue of her disability. By August Ms Doughty was not in a position to carry out work on a full time basis and thereafter never returned to full time office work. Under the Respondent's sick pay scheme, Ms Doughty commenced sick pay in August and, following the normal public sector schemes, full pay for six months reduced to half pay for a further six months, with an entitlement to sick pay expiring around 23 August.
4. The position is this: that by the August, Ms Doughty was going to be in a difficult position. She was, as the Tribunal found, dismissed on 6 July:

"The result of that dismissal letter was that Ms Doughty became entitled to full pay for the period of her notice period rather than the half pay she had been entitled to, under the sick pay regime. And that letter was the required trigger to enable the Superannuation Fund to pay Ms Doughty retirement benefits she wanted. Had Ms Doughty not been dismissed, but remained on sick leave, she would have received no pay whatever from the end of August. Nor would she have been entitled to a pension at that stage, she was only 45. Ms Doughty would only acquire a pension and retirement lump sum if she were compulsorily retired on grounds of ill-health. Accordingly the effect of the dismissal was to improve Ms Doughty's financial position."

5. The Tribunal, in paragraph 6(29) explained how they had been puzzled why it was necessary to dismiss Ms Doughty. But Mr Hakes who explained to them the complexities of the County Council Local Government Pension Regulations pointed out that under this particular public sector pension scheme the ill-health provisions could only be activated if there were a formal dismissal. It is not true, it seems, of other pensions such as a teacher's pension fund, which permits an agreed resignation.
6. There were, and this is relevant to other parts, no restrictions on re-employment of an employee who had been dismissed on the grounds of ill-health, as long as the employee did not return to the same job. It was acceptable to return to a different job, or similar work, as long as it was for a lesser working week.
7. It seems from the Tribunal's findings of fact that no explanation of this position, in clear terms, was given to Ms Doughty. The Tribunal find at paragraph 11 of their decision:

"It is evident from the facts that we have found, that the dismissal was an inevitable part of a process to which both Ms Doughty and the Respondents had agreed."

They go on to find that there was not full and informed consent, and they said there was a degree of confusion, in the Applicant's mind, as to the Respondent's intention. If we may say so, with respect to the arguments put to us, there seems to us one central arguable point of which all are subsidiary matters. If an employee agrees that they will be dismissed and there are, of course, a plethora of authorities with the position of those who volunteer for redundancy, if a person agrees that they should be dismissed in terms of triggering a pension benefit they would not otherwise get, is that a ground for saying that the dismissal can be unfair, within the provisions of Section 98(4)?

8. Secondly, when one considers the disability discrimination legislation, are you being treated less favourably, if it is something that you yourself seek, in order to improve, what must have been for Ms Doughty, a bleak financial future. Now, we want to make it clear, we consider that point is arguable, and it is an important issue. It is right to say the Tribunal make certain findings of fact as to what preceded the activation of the superannuation scheme and are critical of the Respondents in the way they went about it.
9. What we think is arguable is whether the Tribunal adequately explain how it comes about that, on their own findings of fact, a matter which the Applicant employee agreed to, could be a matter which was a detriment for the purposes of the discrimination Act which was unjustified, and something which was unfair, when the intention was to increase the Applicant's financial well-being.
10. We do consider that is arguable. If we may say so, and this is the view of us all, we do think that the central feature of that proposition could be spelt out in a few, clear grounds of appeal to which the Skeleton Argument could then be addressed, rather than a wide ranging criticism of ambits of the decision, which it is not easy for Tribunal Members and Chairman to follow.
11. The issue on liability is, we consider, an arguable one within the ambit. Now we give leave on that central issue, and we think that many of the arguments in the grounds of appeal are relevant there too, but we would like, if we may say, put in clear terms following from that, because that is, in our view, the fundamental issue to which all other is subsidiary.
12. The second matter about which complaint is made is the finding by the Tribunal that the award of £4000. It is said that the Tribunal erred in law on the process alternative that the decision was so unreasonable as to be perverse. The error of law, it is said is this: the Tribunals have to have regard to section 8, not section 3 as the grounds of appeal said, and it said that Tribunal did not consider all the circumstances, in particular what is said, the fact that the Tribunal seemed to have taken into account that the Respondents did not apologise between the liability decision and the remedy. We think that the way in which the Tribunal have couched its decision does raise arguable grounds as to whether or not it is proper to take into account that fact that between a liability and a remedy hearing there is no apology, and for it to make its findings, without reference to the correspondence that took place earlier, in particular in the context of this case, the letter of 12 August 1999 where there does seem to have been an apology where it says:

"I am sorry that sections in the letter you received recently caused you distress"

13. We wish to make it clear, as I say, that we think these are arguable grounds. There is within the decision of the Tribunal matters, no doubt, that the Respondents could and would wish to rely on to argue that the decision is justified. We therefore give leave that within 28 days of the amended grounds of appeal, within the ambit of this decision, clarifying what is the main and central ground on which we give leave on both matters.

Half a day, Category C. No order for Chairman's Notes.