United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS E MELVILLE (Of Counsel) Instructed By: Newcastle Upon Tyne Legal Services Department Civic Centre Newcastle Upon Tyne NE99 2BN


 


JUDGE PETER CLARK

1. This is an appeal by the Respondent employer before the Newcastle Upon Tyne Employment Tribunal, Newcastle City Council, against that Employment Tribunal's decision promulgated with extended reasons on 9 January 2001, upholding the Applicant Mr Gillon's complaints, both of unfair dismissal and disability discrimination.
2. The facts shortly were that the Applicant was employed by the Respondent as a Foster Care Supporter from 9 January 1990 until his dismissal on 7 June 1999.
3. On 11 June 1998 he telephoned the home of which a girl aged 13 was being fostered. The call lasted 20-30 seconds. Following the call, the child appeared, to her foster mother, to be upset. After some coaxing, the child claimed that the caller had said

"Can I fuck you?"

4. This matter was reported to the Respondent, which began an investigation, which in turn culminated in the Applicant's dismissal, following disciplinary hearings held in his absence, but at which he was represented by a trade union representative.

THE TRIBUNAL DECISION

Unfair dismissal

5. The Tribunal found that dismissal was for a potentially fair reason, conduct, but concluded that it was unfair applying Section 98(4) of the Employment Rights Act 1996 because

1. The initial investigation carried out by Miss Hardy was dilatory.

2. That investigation was flawed, in that the Applicant was not given full access to the information gleaned by Miss Hardy during her interviews.

3. The Applicant's trade union representative was not given access to relevant social worker files.

4. The disciplinary hearing ought to have been adjourned, given the Applicant's medical condition. The Tribunal further concluded that the Applicant had not contributed to his dismissal by his own conduct.

DISABILITY DISCRIMINATION

6. The claim was brought under Section 5(2) of the Disability Discrimination Act 1995. The Tribunal recalled that it was accepted by the Respondent that denying the Applicant the right to appear at the disciplinary hearing was a discriminatory act, but they claimed justification. That plea was rejected by the Tribunal.
7. On the basis of the medical evidence available, the Respondent ought, the Tribunal found, to have adjourned the hearing, or at least considered further medical evidence before deciding to proceed with the hearing.

THE APPEAL

8. The grounds of appeal fall into 4 categories:

1. Unfair Dismissal

Miss Melville has sought to attack the various findings by the Tribunal which led them to conclude that the dismissal was unfair under Section 98(4) of the Employment Rights Act 1996. We have considered those submissions but are quite unable to accept that they collectively or individually approach the perversity threshold which Miss Melville seeks to surmount. It seems to us that the Tribunal made, and were entitled to make, findings of fact which, given their self-direction in law, show clearly that they found that the Respondent did not carry out a reasonable investigation for the purpose of the Burchell test and in these circumstances we have no difficulty in inferring the Tribunal found that dismissal fell outside the range of reasonable responses open to the Employer.

2. Contribution

The Tribunal deal with this at paragraph 64 of their reasons. The heart of their conclusion, on this aspect of the case, was that the Respondent failed to establish that the Applicant used the offending words alleged in the telephone call. Miss Melville submits that the Tribunal have failed to consider all the surrounding circumstances, in reaching a conclusion as to whether the Applicant's conduct was foolish or blameworthy. She points to a number of features relied on in the dismissal letter of 7 June 1999. Again, we are quite unable to accept that this line of attack raises any arguable point of law fit to go forward to a full appeal hearing. The critical question, and it was one of fact for the purpose of assessing contribution, was whether or not the Tribunal were satisfied that the Applicant has used the words alleged. This is a different question from the question of reasonableness under Section 98(4) of the Act. We can find no arguable flaw in the Tribunal's reasoning in paragraph 64 of their reasons.

3. The Polkey Point

It is clear from paragraph 25 of the Tribunal's reasons that it was submitted by Miss Melville below, on behalf of the Respondent Employer, that, even if the dismissal was unfair, the circumstances of the unfairness would have made no difference to the final outcome. The Polkey submission. It is equally clear to us that, in their decision, the Tribunal do not deal with that submission. We think that they ought to have dealt with it, or at any rate, indicated to the parties, that they would consider that particular submission at the adjourned remedies hearing. Patent failure to do so gives rise, in our view, to an arguable point of law which ought to proceed to a full hearing.

4. Disability Discrimination

This case was decided before the Court of Appeal decision in Jones v The Post Office [2001] IRLR 384, a case in which guidance is given on the justification defence, there under Section 5(3) of the Disability Discrimination Act 1995 but the wording is identical in all material respects under Section 5(4) of the Act, which provides the defence of justification to a claim brought under Section 5(2) of the Act. We need say no more than that this Tribunal's approach to the question of justification in paragraph 63 of their reasons requires careful consideration in light of the Court of Appeal guidance in Jones. Accordingly, this ground of appeal will also proceed to a full hearing.

9. For the purpose of the full appeal hearing, we shall list the case for ¾ of a day, Category B.
10. There will be exchange of skeleton arguments between the parties, not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with this court at the same time. There is no requirement for Chairman's notes of evidence.