United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A ELESINNLA (of Counsel) Free Representation Unit 4th Floor, Peer House 8-14 Verulan Street London WC1X 8L2


 


MR RECORDER BURKE QC

1. This is the Preliminary Hearing of an appeal by Miss Lyons against the decision of the Employment Tribunal sitting at Stratford and Chaired by Ms Manley, promulgated with extended reasons on 17 October 2000. By that decision the Tribunal dismissed Miss Lyons' complaint of disability discrimination against her employers.
2. There is no need to go into any detail as to the facts. Miss Lyons was found by the Tribunal to be disabled within the meaning of Section 1 and Schedule 1 of The Disability Discrimination Act 1995. She complained that she had been discriminated against for a reason which related to her disability in the course of a meeting on 19 February 1999 with management, which meeting was called as a result of a history of absences from work, during the course of which, despite being apparently too sick to go to work, she had been well enough to visit a night-club. The Tribunal decided that there was no less favourable treatment in the case of Miss Lyons because management who were conducting the meeting would have treated anyone, where such a meeting was necessary in similar circumstances, in the same way. See paragraph 12 of the decision. Having thus decided, the Tribunal did not go on to consider the issue of justification.
3. Mr Elesinnla, who is representing Miss Lyons today under the aegis of the FRU, has in his skeleton argument with admirable succinctness taken one point and one point only by way of criticism of the Tribunal's decision. He submits that the Tribunal in paragraph 12 erred in using a comparison between Miss Lyons and another employee in whose case a meeting was necessary in similar circumstances because that comparison is the wrong comparison, however much it would be the right comparison in a sex of race discrimination case, in a disability discrimination case, in the light of the decision of the Court of Appeal in Clark v Novacold (1999) ICR 951. That authority he submits, establishes that the comparison for the purposes of The Disability Discrimination Act 1995 is one which involves not considering the position of persons in the same circumstances who do not have the disability from which the employee suffers but considering the position of others more generally and is not limited to those who are off work by reason of disability and therefore called to a meeting.
4. We do not propose to say any more at this stage than that we regard that point as arguable. Therefore this appeal should proceed to a full hearing.