United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTIN WESTGATE (of Counsel) Instructed by: Ms A V Cutting Ann Cutting (Employment) 25 Elm Grove Peckham London SE15 5DB


 


JUDGE COLLINS CBE

1. This is the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at London South. The decision was promulgated on 3 September 1999 and it is unclear to us why it has taken so long for this matter to be listed for preliminary hearing.
2. The decision of the Tribunal was that the Appellant had been unfairly dismissed, but that his compensation should be reduced by 80% on the ground of his own conduct. They also held that his applications under the Disability Discrimination Act were out of time, and they further held that it was not just and equitable to extend the time for making an application. By the Notice of Appeal dated 14 October 1999 in its proposed amended form, a number of points were taken, and although Mr Westgate dealt with them in a different order in his Skeleton Argument and his submissions, I shall simply summarise them briefly now, as they are set out in the Notice of Appeal.
3. Firstly, it is alleged that the Chairman of the Tribunal was biased in that she made certain remarks during the course of the Appellant's evidence indicating that she had a prejudgment against him. Secondly, there is a complaint, which is no longer proceeded with in this Tribunal, that the Tribunal was wrong in excluding evidence from Ms Sands about the extent of the Appellant's disability. Thirdly, it is said that in relation to one of the complaints of disability discrimination, the Tribunal were clearly wrong in concluding that it was out of time. A number of criticisms are then made of the Tribunal's views about the merits and finally, it is said that the Tribunal's decisions on the questions of compensation were wrong and, indeed, it is suggested that they were perverse.
4. I shall now turn to deal with the matters in the order in which they were addressed by Mr Westgate. Before I do so, I must make the following observations on behalf of the Tribunal. I have already indicated that this is an old case, the Notice of Appeal having been served on 14 October 1999. The case below was conducted on behalf of the Appellant by Ms Cutting who was responsible for the drafting of the Originating Application and for the Notice of Appeal. She took a very active interest in the Appellant's disability, for reasons which she explains in an affidavit she made on 22 December 1999, and her affidavit shows a remarkable degree of personal engagement in the Appellant's case, in addition to a high level of professional commitment. It is therefore, with great regret, that it has to be recorded that Mr Westgate was only instructed yesterday by Ms Cutting to present this appeal, with the result that his skeleton argument was not received by Members of this Tribunal until 10.15 this morning. Mr Westgate is to be congratulated on the skill with which he has mastered the case and prepared the argument, but he has not been able to offer any excuse for the dilatory way in which Ms Cutting has allowed the case to proceed since she swore her affidavit in December 1999. It is a matter for criticism, no explanation has been forthcoming and, having made those remarks, I now pass on to deal with the submissions which Mr Westgate has made.
5. Firstly, it is submitted that the Tribunal was wrong in deciding that the compensatory element in any award should be reduced by 80%, and the basis for that submission is that, while the wording of section 122(2), dealing with deductions from the basic award, permits the Tribunal to take a broad view of an Applicant's conduct, section 123(6), dealing with reduction in the compensatory award, has to encompass conduct which causes or contributes to any dismissal. Mr Westgate helpfully refers to the decision of this Tribunal in Robert Whiting Designs v Lamb [1978] ICR 89, where giving the reserved judgment of this Tribunal Mr Justice Kilner-Brown indicated that Tribunals should take a broad approach to the reduction of the compensatory awards. At page 92F, he says this:

"In our view the proper approach is to decide first what was the real reason for dismissal and then to see whether the employee's conduct played any part at all in the history of events leading to dismissal."

And at H he says:

"In our view the weight to be given to the employee's conduct ought to be decided in a broad common sense manner"

And it does not seem to us in the light of those observations that it would be right for the Tribunal to have approached the question of whether or not the employee's conduct caused or contributed to his dismissal in a technical or legalistic manner; it is a broad common sense approach that is required.

6. Now the Tribunal gave its reasons for the way in which it dealt with the question of compensation at paragraph 24. This was a case where the Appellant had taken a holiday, contrary to the arrangements which existed in the company for notification of holiday, having been warned that he would be liable to disciplinary proceedings if he took the holiday, and the Tribunal held that his act of deliberate defiance, which amounted to potential grounds for dismissing him, and which the Tribunal described as reprehensible, was a very serious matter. In addition, at paragraph 24, the Tribunal says this:

"He was shocked at the severity of the Respondent's reaction, and led him to feel compelled to urgently walk out of the company's premises. We find that had the Applicant returned to work after his authorised leave the situation would not have occurred. We find that it is just and equitable to reduce the basic award of compensation and that Applicant has substantially contributed to his own dismissal."

We do not see any arguable point of law that the Tribunal were wrong in coming to that conclusion and indeed, it is argued that they were amply justified in coming to that conclusion on the basis of the facts which they found.

7. I now turn to the claim under the Disability Discrimination Act. The Appellant is profoundly deaf and, having come from the Indian sub-continent, where there is much less provision than there is here, for young children to grow up using sign language, still has difficulties in communicating and understanding. Generally, he is competent at lip-reading, although he said that he had problems in lip-reading Mr Morrison, and he has some skill in signing and in understanding signing. But he had been employed by this company since 1988 with no apparent difficulty in communicating in the ordinary course of work. But on 14 April 1998, the day after he returned from holiday, he had an interview with Mr Morrison. It was a meeting at which he was severely reprimanded.
8. The evidence was that Mr Morrison would have wished to dismiss him for his reprehensible and defiant conduct, but was persuaded not to do so by a superior officer in the company, and there is no doubt that, on the evidence, the Appellant was badly shaken up as a result of what had happened. He thought that he would get away with some financial penalty, and he was shocked to realise that he was very lucky to avoid being dismissed.
9. It is in relation to that incident that the Tribunal were quite clearly wrong in deciding that the claims under the Disability Discrimination Act were out of time. That incident gave rise to an allegation which was well in time - but they dealt with it on the merits, in any event. At paragraph 26 they considered the operations of section 5 and section 6 of the Disability Discrimination Act and they say this:

"The duty to make reasonable adjustments arises when, by comparison with persons who are not disabled, the disabled person concerned is placed at a substantial disadvantage. The Tribunal finds that the Applicant was not placed at a substantial disadvantage at the interview with Mr Morrison. The Applicant, by his own evidence, knew the subject matter of the meeting and knew that he was being severely reprimanded."

And they go on:

"We bear in mind that the parties had communicated successfully for over ten years without a signer present on any occasion."

And they go on:

"We find, that the Applicant was not placed at a substantial disadvantage within the meaning of section 6(1)(b) at that meeting, and conclude that a duty to make reasonable adjustments pursuant to section 6 duty did not arise."

Section 4 of the Disability Discrimination Act [1995] in section 4(2) provides, so far as is material,:

"(2) It is unlawful for an employer to discriminate against a disabled person whom he employs-…..

(d) by dismissing him, or subjecting him to any other detriment."

Section 5 provides, so far as is material, that:

"(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 others to whom that reason does not or would apply"

And subsection (2):

"(2) for the purposes of this Part, an employer also discriminates against a disabled person if -

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified."

And so far as is material, section 6 provides, in subsection (3):

"(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1) -…..

(k) providing a reader or interpreter."

10. Now it does seem to us that it is reasonably arguable that the Tribunal took a wrong view on the merits, so far as the incident on 14 April 1998 is concerned. Although it may well have turned out that at the end of that meeting, or shortly afterwards, the Appellant had it made perfectly clear to him that he was not in fact being dismissed, that does not seem to us, necessarily, to dispose of the employer's obligation before a disciplinary meeting which could have led to dismissal, to consider whether or not the needs of a profoundly deaf person could be met, without providing any interpreter. The Tribunal's decision is arguably wrong in that it decides what the employers should or should not have done, at the outset of the meeting, by reference to what happened at the end of it, which is something which we think ought to be considered at a full hearing of this Tribunal.
11. The other point taken in relation to the Disability Discrimination Act is that on the proper construction of the Originating Application, it is asserted that the dismissal itself was an act of discrimination under the Act, and that the Tribunal were wrong in deciding that as a matter of jurisdiction, they had no power to hear such an application because it was not set out in the Originating Application. The difficulty here has arisen because, instead of making it clear in the Originating Application what was being claimed, Ms Cutting simply annexed the Appellant's statement and led everybody to draw what conclusion they could from it. In paragraph 21 of his statement he said this:

"21 I also believe that I was discriminated against because of my disability in that no arrangements were made when I was called into see Mr Morrison to ensure that I could understand what was going on as a result of which I was dismissed. I believe that this is in breach of Ss 5(1) and 6(1) of the Disability Discrimination Act 1996 [sic]"

We agree with the Tribunal that that does not raise an assertion that the dismissal itself was an act of discrimination and we think there is nothing in that point.

12. The final matter which we must address is this, and Mr Westgate left it to the end of his arguments, although it occupied pride of place in the way in which this appeal was initially presented, and it relates to the conduct of the Chairman. What is alleged in the Notice of Appeal is that she showed bias against the Appellant, in that:

" she said in an exasperated tone during the Appellant's cross examination "I don't accept that he doesn't know this. This is play-acting".

When the Chairman was asked for her observations about this allegation, and during the course of that she said:

"I told Ms Cutting that I did not accept that the Applicant did not understand, and I believe there was an element of play acting, whereupon the Applicant immediately replied "I asked the manager for time off, I have always done this, I understand that the manager can say no". I recall that he replied to the question without my comment being signed, therefore I disagree that the Applicant did not understand the question, however I do agree that I could have expressed my view to Ms Cutting more eloquently."

13. Well, in retrospect, there is no doubt that it would have been better for the Chairman to confine her reaction to the Applicant's evidence until the end of the case when judgment is given. But it is the task of the Tribunal to find facts, and to form a view about the credibility of witnesses, and it is understandable that, during the course of a case, a member of the Tribunal may have some degree of frustration or exasperation with what he, or she, believes to be prevarication or misleading behaviour on the part of a witness and allows something that they say, or do, to betray the feelings which they have, and although that is sometimes regrettable, and perhaps disconcerting for the representatives, it is very difficult to say that such an expression of feeling on the part of the Chairman of the Tribunal indicates bias or prejudgment, which disqualifies the Tribunal from hearing the case. So that although we consider, as the Chairman herself did in retrospect, that it would have been better if she had not made that remark, we do not consider that it gives rise to any arguable question of law, as to the impartiality of the Tribunal.
14. So, for those reasons, we will allow this appeal to go forward to a full hearing, only on the question of whether or not the failure to provide an interpreter at the hearing on 14 April 1998 amounted to an act of discrimination under the 1995 Act. We will direct that it should be listed as Category C, with a time estimate of 1 ½ hours, Skeleton Arguments 14 days before the hearing.