United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS TESS GILL (of Counsel) Instructed By: Messrs Eversheds Solicitors 11-12 Queen Square Bristol BS1 4NT


 


MISS RECORDER SLADE QC:

1. This is the preliminary hearing of an appeal against the finding of an Employment Tribunal of unlawful discrimination contrary to the Disability Discrimination Act 1995.
2. The Tribunal found that the Appellants had discriminated against Miss Filmer under the Disability Discrimination Act, Section 5(2) and Section 5(1).
3. The Applicant before the Tribunal worked as a sales person. It was not in dispute before the Tribunal that she suffered from a disability, namely reactive depression of a psychotic nature.
4. The facts briefly stated, as found by the Tribunal, are these. A verbal warning was given her by her manager, Mr Hardwick. The sanction of the verbal warning was set aside on appeal.
5. The Applicant before the Tribunal was led to believe by her manager, Mr Hardwick, that she was to be interviewed on 3 March 1998 for a new position and that that interview was to be conducted by Mr van der Westhuyzen. She attended for what she thought was to be a job interview. When she saw Mr van der Westhuyzen he told her that she was not going to be interviewed for that particular job. She was considerably upset by what had occurred on 3 March. She rang Mr Hardwick at home and there was a dispute about what was said by the Applicant during the course of the conversation. Mr Hardwick alleged that she had threatened him.
6. As a result of that telephone call the Applicant was suspended and the employer's disciplinary procedure was initiated. In the meantime the Applicant informed Personnel that she had been preparing a harassment complaint. On 10 March 1998 the first meeting in the disciplinary procedure was held and was adjourned.
7. By letter dated 13 March the Applicant raised the procedural problem which the Employment Tribunal considered was very largely the nub of the whole proceedings before them. In that letter the Applicant made it clear that she wished to have her harassment complaint heard at the same time as the disciplinary proceedings. She made it clear in the letter that her employer's failure to allow her to pursue the harassment complaint against her manager was causing her further psychological damage.
8. The position adopted by Johnson & Johnson at that point and thereafter appears to be this, that according to their procedures where there is a disciplinary procedure being followed no grievance relating to the same or similar matter will be heard. The employers took the position that, since they regarded the harassment complaint as a grievance against the very same person who had initiated the disciplinary proceedings against the Applicant, the two matters could not be considered together by reason of their own procedure. They refused to consider the Applicant's complaint at the same time as the complaint against her.
9. The disciplinary proceedings were adjourned. The Applicant was not well enough to attend the adjourned hearing and the position continued to be as stated until the Applicant's employment was eventually terminated by notice given on 12 March 1999 expiring on 7 May 1999.
10. The Employment Tribunal found that the employers ought to have realised that the Applicant was suffering from a disability from the beginning of 1999. The reason why they adopted that point in time was that in a letter of 11 January 1999 the Applicant had written certain matters which were indicative of a disturbed mind. Having concluded that the employers had been alerted to the fact that the Applicant had a disability, the Tribunal went on to conclude that "arrangements" under the Disability Discrimination Act, Section 6 could be wide enough to include arrangements for termination of employment and also to include matters relating to the conduct of disciplinary proceedings.
11. The Tribunal concluded that the Applicant was under a substantial disadvantage in the disciplinary procedure and that her disadvantage was made worse by the employer's refusal to deal with the harassment complaint at the same time as the disciplinary proceedings.
12. The Tribunal recorded steps that the Applicant suggested could have been taken by her employers. The Tribunal appeared to have relied upon two principal matters in concluding that there had been a failure to make reasonable adjustments. First, the matter of failing to hear the grievance or harassment complaint at the same time as the disciplinary proceedings. Secondly they concluded that the employers could have taken a different view of the threat allegedly made by the Applicant on 3 March 1998 in determining whether or not there should have been a dismissal. On that basis the Tribunal concluded that the employers had failed to make reasonable adjustments. They went on to consider whether there was also discrimination against the Applicant under Section 5(1) and concluded on much the same basis and material that there had been.
13. We consider that all the grounds of the Notice of Appeal disclose arguable points of law. Accordingly we are of the view that this is an appeal which is fit to go forward to a full hearing.