United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER DOUGHTY (of Counsel) Instructed by: Messrs Knight & Co Solicitors 2-4 Leigh Road Eastleigh Hampshire SO50 9F11


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us, by way of a preliminary hearing, the appeal of Penelope Anne Rowden in Rowden v Dutton Gregory, Solicitors. Today Mr Doughty appears for Mrs Rowden, as he did below.
2. The history of the matter is this: that on 12 August 1999 Mrs Rowden presented an IT1 for unfair dismissal, wrongful dismissal, unlawful discrimination contrary to the Disability Discrimination Act and unlawful deduction of wages.
3. The allegations that she made included that she had been employed as a secretary at the Eastleigh office of the Respondent firm from 13 September 1993 to 21 May 1999. She said that she had worked as a secretary to a partner, Mr Bolwell; she alleged that she was bullied by him, that eventually she was switched to being secretary to a different member of the firm, but, she said, Mr Bolwell continued to be unpleasant to her, or about her. She said in her paragraph 15:

"15. On 30 April 1999, the Applicant went to see her General Practitioner and was signed off work for fourteen days due to depression. On 14^th May 1999, the Applicant's General Practitioner gave the Applicant a second sickness certificate for depression..

16. On 22^nd May 1999, the Applicant received a letter terminating her employment without notice, in respect of her alleged conduct. The Applicant denies any such conduct and/or that such conduct could amount to gross misconduct. The Respondent failed to provide any warnings and failed to implement its disciplinary procedure. The Applicant was not given an opportunity to be heard or a right of appeal.

17. In the circumstances the Applicant contends that she was unfairly dismissed."

And going on, she said:

"19. Further or in the alternative, the Applicant contends that the Respondent is in breach of contract"

And that is specified.

4. Then she alleges unlawful deduction of wages, and in her final paragraph, she says:

"21……..the Applicant contends that her depression amounted to a disability within the Disability Discrimination Act 1995, as it had a substantial adverse effects on her ability to undertake day to day activities as she was unable to concentrate and was a condition that had lasted for 12 months or more. The Applicant contends that she was discriminated against on the grounds of that disability in that she was dismissed and the Respondent failed to discharge its duty to make reasonable adjustments to her workplace."

5. On 6 September 1999 the employer responded with its IT3. It was alleged that she had caused concern by reason of her repeated absences due to sickness: 25 days off from January 1995 to April 1996; that she had not previously mentioned that her work was detrimental to her health; they said:

"7…….At no time, prior to 27 July when the Applicant commenced work for Mr Plested, did she allege that she had been bullied or intimidated by Mr Bolwell"

and she had been taking, they said, excessive cigarette breaks. They said:

"14. The Applicant then 'went sick' on 30 April 1999 due to depression, the blame for which she attributes to Mr Bolwell. Mr Bolwell had not been in the office for the 3½ days prior to the Applicant's departure. In the half day that he had been in the office he had asked the Applicant for assistance in putting together an urgent trial bundle but the Applicant had refused and Mr Bolwell had been forced to call upon the assistance of a trainee solicitor from the Respondent's Winchester office!"

And then they say:

"16. At this point the Applicant had taken 13 days sick in 1997 and 20.5 days sick in 1998".

6. Her position then, they said, came to be reviewed. She had refused reasonable instructions; she had, they said, sabotaged work and, cumulatively, they said, all this amounted to gross misconduct.
7. That was the attack and the defence that went off to a four day hearing at the Tribunal at Southampton under the chairmanship of Mr C. E. H. Twiss between 17 March 2000 and 28 June 2000. Both sides were represented by Counsel.

The decision was sent to the parties on 26 July 2000 and it was that the Applicant was unfairly dismissed; the Respondent discriminated unlawfully against her, contrary to the Disability Discrimination Act 1995; the Applicant's claims for wrongful dismissal and unlawful deduction of wages were found proved.

8. One might, against that background, have expected the solicitors to be appealing, but it is Mrs Rowden who appeals and the Notice of Appeal from Mrs Rowden was received on 4 September and it is concerned with the Tribunal's failure to find discrimination under section 5(1) of the Disability Discrimination Act. Section 5(1) says:

"(1) For the purposes of this Part, an employer discriminates against a disabled person if -

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified."

9. As to disability discrimination, the Tribunal note in their paragraph (2)

"It was formally conceded before the hearing that the Applicant had been disabled within the meaning of the Disability Discrimination Act since 3 July 1995"

10. We need not look at the whole period of Mrs Rowden's employment but the Tribunal made some important findings in relation to the end of her employment, they said:

"(15) On 30 April 1999, the Applicant went sick and presented a sick note to the Respondents the following day recording that she was absent because of depression.

(16) In a memorandum of 30 April 1999, Mr Bolwell reported to Mr Bowden that he was appalled to learn that morning that the Applicant had been signed off for two weeks with depression and that she was accusing him of being the cause. He went on to recount to Mr Bowden a number of complaints about the Applicant and her work and told him of the incident of the previous Tuesday (27 April). He said that he had instructed Mrs Marsh to make a full investigation, but irrespective of the outcome of that investigation he thought the firm should be looking very long and hard at the Applicant's employment contract."

11. The employer purported to have five separate types of shortcoming that it had found in relation to Mrs Rowden, and, as we mentioned earlier, their case was that, taken together, those justified a dismissal. This was recorded by the Tribunal as follows:

"(17) A meeting of the Executive Committee of the Respondent firm took place on 20 May 1999. The actual minute of the meeting as it relates to the discussion of the Applicant's employment is extremely brief, but it was accepted that a note written to Mr Broad by Mr Bolwell of 20 May 1999 accurately reflected the decision of the Committee. It recorded that it had been decided to dismiss the Applicant on the following grounds"

And then it sets out at (a) to (e) the various grounds: consistent poor time-keeping; abuse of smoking privilege; deliberate sabotage of Miss Smith's typing; refusal to carry out instructions; excessive sick leave, and it then points out that a letter of dismissal was drafted, giving as reasons for the dismissal all the matters referred to by (I think it must be) Mr Bolwell in his memorandum.

12. The employer's argument had been that the disability which was conceded (although it is not mentioned in terms, it was presumably depression) may have been the trigger for the collection and then the deployment of those grounds (a) to (e) but was not the reason for dismissal. The Tribunal says:

"7……..It was Mr Dineen's case"

and Mr Dineen was appearing for the solicitors' firm ….

" that the reasons for the dismissal were those given in the memorandum of the Executive Committee on 20 May and in the dismissal letter. The absence from work for depression, of which the Respondents only became aware when they received the medical certificate on 30 April or 1 May, was, he said, merely the trigger"……

And the Tribunal underlines the word "trigger"

……"which set in train a series of events which lead to her dismissal: it was not the reason"

and they underline the word "reason" …..

….."for dismissal. What caused the absences to be a reason for dismissal was their unacceptable total quantum. If the only absence had been that starting due to depression on 30 April 1999, absence would not even have featured as a reason for dismissal."

13. Mrs Rowden's Counsel argued that an inference needed to be drawn as to disability and the dismissal. Mr Doughty said, in the Tribunal's paragraph 12:

"12………….He reviewed the facts in the case and submitted that we were entitled to draw an inference that the reason the Applicant had been dismissed was a reason relating to her disability; indeed, he suggested that it was the only reasonable conclusion to draw".

14. In paragraph 17, the Tribunal deal with section 5(1) of the Disability Discrimination Act and they say this:

"17. Dealing first with Section 5(1) discrimination, it was suggested that there were primary facts from which it was appropriate for us to draw the inference that those primary facts derived from disability discrimination on the part of the Respondents. We found ourselves unable to agree with that submission. Addressing ourselves carefully to the precise wording of Section 5(1)(a) we come unhesitatingly to the conclusion that the dismissal of the Applicant and, indeed, any other detriment to which she was subjected, were not related to her disability but to the matters referred to in the letter of dismissal. We believe that there was little or no justification for the assertions in the letter of dismissal or in Mr Bolwell's memorandum that preceded it, but whatever the merits of those reasons for dismissal, they were not related to her disability."

15. It may that that approach is simplistic; even the employer's own argument had accepted that the medical certificate as to depression was a trigger which set in train the events that led to the dismissal. But for the depression, there would, it would seem, have been no trigger. Arguably Mr Bolwell would not have reported as he did, and Mrs Marsh would not have been required to investigate, but for that trigger, which was causally linked to the depression, would the train of events leading to dismissal have occurred?
16. The leading case that may give guidance is Clark v Novacold [1999] IRLR 318, reported in May 1999. It is not an easy case to digest; it may prove that it gives no assistance; it is, in any event, unmentioned by the Tribunal below. But we would not feel confident in a view that it suffices for a Tribunal to look only at the ostensible collected reasons for a dismissal, where dismissal is the detriment said to have been suffered, without looking into the reason why those ostensible reasons had come to be collected. The fact that the Tribunal found little or no justification for the ostensible reasons given for the dismissal, can, it seems to us, only encourage an Employment Tribunal to go further back in causation and to find, rather than the unjustified reasons, what the true reasons might have been.
17. We recognise that the drawing of inferences in this area is chiefly, perhaps wholly, a matter of fact see - Clark v Novacold at paragraph 53 - but we do see it as arguable, and, of course, at this stage that is all we are concerned with that there was an error of law on the Tribunal's part in its looking only at the ostensible reasons, which, in any event, it found had little or no justification and not to have gone further back in time and in causation.
18. Accordingly, we allow the Notice of Appeal to go, in full, to a full hearing. We estimate half a day, and Category A. Mr Doughty has raised the question of Chairman's Notes; it may be that they become desirable but that question is better considered when both sides - both the solicitors and Mrs Rowden - have focused on what the issues at the full hearing need to be, and whether Chairman's Notes are necessary, after all. With those directions, we allow the matter to go to a full hearing.