United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANTONY WHITE QC (One of Her Majesty's Counsel) Instructed By: Messrs Ford & Warren Solicitors Westgate Point Westgate Leeds W Yorks LS1 2AX


 


JUDGE A WAKEFIELD:

1. This is an ex parte preliminary hearing of an appeal by Hoyer (UK) Ltd against a decision of an Employment Tribunal sitting at Bristol, by which it was found that the Appellant had discriminated against the present Respondent (who had been the original Applicant) Mr Steven Capaldi, for a reason related to his disability and that they had unfairly dismissed him. The grounds of appeal relate to each of these findings.
2. As regards disability discrimination, it is argued that the Employment Tribunal erred in law in refusing to consider the defence of justification raised by the Appellant and did so on the basis of the decision of this Employment Appeal Tribunal in Quinn v Schwarzkopf Limited [2001] IRLR 67. That decision is, it is argued, in conflict with an earlier decision of the Employment Appeal Tribunal in British Gas Services Limited v McCaull [2001] IRLR 60 which was not cited to the court in Quinn, and which has since been preferred by this Appeal Tribunal in the case of Greater Manchester Fire and Civil Defence Authority v Bradley in a judgment given on 27 April 2001, not yet reported.
3. The crucial finding as to the Appellant's not being entitled to raise justification is contained in paragraph 3 of the Decision, immediately following a citation of the Quinn case. What the Tribunal said was:

"At all material times up to the finding by the Tribunal that the applicant was a disabled person the respondents denied that the applicant was disabled and called evidence from its own medical practitioner in support of this position. It is demonstrably clear, therefore, that the respondents did not at any time consider whether or not its actions were justified because they did not recognise that the applicant was disabled. It is not, therefore, open to the respondents to claim justification and it follows that the three substantial elements required by the Act are all established, namely:

(1) The applicant was a disabled person.

(2) He was treated less favourably for a reason relating to his disability.

(3) The respondents cannot show that their action was justified."

4. In our view the question of whether the Employment Tribunal were entitled and right so to find is reasonably arguable and this ground of appeal must proceed to a full hearing.
5. The other ground of appeal is the alleged failure of the Employment Tribunal, when considering unfair dismissal, (a) to make any proper findings as to the reason for the dismissal, (b) to resolve crucial disputes of fact which impacted on the issue of fairness of the dismissal nor (c) support by findings of fact, two conclusions adverse to the Appellant. In paragraph 9 of the Decision the Employment Tribunal said:

"The applicant's complaint that he was unfairly dismissed rests almost wholly on lack of consultation. During the course of her evidence Miss Duke admitted that her telephone conversations with the applicant during his sickness absence related to the progress he was making and when he expected to be fit to return to work. She specifically admitted that there was no discussion whatever about his continued employment or that there was a prospect that it may be terminated. Whatever the truth of the matter, there was certainly no dialogue which could properly be termed 'consultation'. The respondents say that this was, at worst, a procedural failure and that the probability was that the applicant would have been dismissed after a reasonable consultation period. We do not accept this argument. In our view the respondents' conduct throughout this matter relating to the applicant's injury was fundamentally flawed at virtually every stage and exhibited a most disquieting lack of caring and compassion by a very large employer in this age. We find that the applicant's dismissal was unfair and, for the avoidance of doubt, the unfairness was substantive and not limited to a procedural failure."

6. We consider that the criticisms of that finding may be justified in the sense that there do not appear to be proper findings of fact on the crucial disputed matters which could support it. It is also right that, as has been argued before us this morning, if the disability discrimination matter must go to a full hearing and ultimately may go back to a further Tribunal for reconsideration, so must also the unfair dismissal allegations because the two are so interrelated.
7. In those circumstances, therefore, that second ground in our view must also go forward to a full hearing.