United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr N Smith Solicitor Messrs Smith Gadd & Co Courtyard Chambers 1 The Courtyard London Road Horsham West Sussex RH12 1AT


 


JUDGE A WILKIE QC

1. This is an appeal by Mr Barton against a Decision of the Employment Tribunal held at London South on 2 and 3 April 2001 which, by a Decision sent to the parties on 18 April 2001, dismissed his applications for findings that he was unfairly dismissed and discriminated against on account of his disability in breach of the Disability Discrimination Act 1995. We have been greatly assisted by Mr Smith, both for the clarity of his arguments and the very helpful summary of the relevant law and chronology which he has furnished to us.
2. The appeal, launched in respect of each of these conclusions of the Tribunal, is introduced by the statement in the Notice of Appeal that the findings of the Tribunal at, respectively, paragraphs 21 and 22 of the Decision in respect of unfair dismissal, and paragraph 25 in respect of disability discrimination, is inconsistent with the evidence. In effect, therefore, this is an appeal which asserts perversity on the part of the Tribunal.
3. The chronology of events can be set out briefly. On 29 September 1999 the Appellant was issued with a contract of employment, in the job of Kidsports Director at the Chris Lane Tennis and Health Club. It was an express term of that employment that:

" private health insurance and critical illness cover will be provided".

4. On 11 December 1999 the Applicant suffered a heart attack, but returned to work on 17 January 2000. In March of that year, he underwent an angiogram which confirmed that he required a double heart by-pass operation.
5. The Tribunal found as a fact that upon Mr Barton's return to work in late March, the Applicant had a meeting with Mr Lane to which various other members of the management team were invited to discuss how matters were going in connection with the launch of the Kidsports operation which was due in a matter of days, at the beginning of April.
6. The Tribunal found that at that stage there was real concern that the programme was not on target and various members of the management team made comments about the Applicant's lack of communication regarding what was going on, and difficulty in working with the Applicant, and records that the Kidsports programme did not start on 1 April 2000.
7. The Tribunal found that on some date in April Mr Barton informed Mr Lane of the result of the angiogram and the fact that he would need open heart surgery. He spoke to Mr Lane about making a claim on the policy referred to in the contract of employment for medical expenses, as he wished to have that operation privately. Mr Lane informed Mr Barton that the policy was not then in existence, but was under active discussion with the insurers.
8. Following upon that, Mr Barton consulted solicitors who, on 25 April, wrote to Mr Lane asserting breach of contract in connection with the failure to provide insurance cover. Effectively it was a letter before action, requiring a rapid response to the complaint by 27 April, failing which, proceedings would be issued without further reference to them.
9. On 26 April, the day following the date of the solicitor's letter, there was a further meeting and, according to the Tribunal's findings of fact, it was attended by the Applicant, Mr Lane, and other members of the management team at which various matters of concern were raised about the management of the Kidsports operations and complaints made about the Applicant's management ability, in particular: lack of communication, failure to meet deadlines, inaccurate information and that the Applicant appeared to be unable to manage the operation. Mr Barton did not accept any of those comments.
10. Matters then proceeded to a conclusion, namely that on 7 June Mr Lane wrote a letter to Mr Barton giving him three months notice of termination of his employment. The first page of this letter states that whilst Mr Barton was absent from employment, which he had been since 2 May, Mr Lane had had cause to review his position with the company.
11. There are then set out, on the remainder of that page, a series of complaints about his want of capability, the summary of which was that the Operations Director had taken over the overall management of Kidsports, and had asked the Kidsports team to run that department on a day to day basis.
12. Preceding the statement that three months notice of termination was being given, Mr Lane says:

"In view of you suffering from stress, it would be unreasonable to add to your stress by asking you to try to continue in your role as Kidsports Director. It is with regret that I have decided to terminate your employment with the company."

The claim for unfair dismissal was a claim made in respect of a period of employment which was less than a year. Nonetheless, Mr Barton claimed to be entitled to a finding of unfair dismissal because he said that his dismissal was a response to the solicitor's letter of 25 April which he said constituted a protected disclosure. The Tribunal found as a fact that the solicitor's letter was, indeed, a protected disclosure, and it therefore went on to consider whether the Applicant had been unfairly dismissed under section 103 A of the 1996 Act, which in turn depended on the principal reason for his dismissal was the protected disclosure.

13. The Tribunal expressed its concern about the coincidence of the meeting of 26 April being the day after the receipt of the letter of the Applicant's solicitors. It, however, made specific findings of fact that the meeting of 26 April was a coincidence; the basis for that was that the Tribunal accepted the evidence of Mr Lane that concerns about the Applicant's ability and competence had arisen much earlier; that there had been an earlier almost identical meeting in March, prior to receipt of the letter from the solicitors, and that Mr Lane had indeed intended to have a meeting with the Applicant prior to 25 April.
14. The Tribunal concluded therefore that the close proximity between the solicitor's letter and the meeting of 26 April was, indeed, a coincidence. It went on to conclude that the principal reason for this dismissal was his inability to do the job as Kidsports Director, and therefore it dismissed Mr Barton's complaint under section 103 A of the 1996 Act.
15. Despite Mr Smith's best endeavours to elevate his comments to a higher plain, it is our clear view that essentially, what he is asking us to do is to say that there is a reasonably triable issue and whether the Tribunal simply got it wrong when they believed Mr Lane's evidence. That is to say they were perverse in so doing. He has rehearsed a number of arguments which, no doubt, were we the Tribunal of first instance, might or might not persuade us to take a different view. We are not a Tribunal of first instance, we are an appellate body. In particular, we have not had an opportunity to see or hear Mr Lane's evidence. The Employment Tribunal did, and they are the body which Parliament has charged with the duty of hearing the evidence, considering the arguments and making findings of fact based on the evidence. In a case such as this where there manifestly was evidence before them to found their conclusions, in our judgment it is wholly unarguable to suggest that they were acting perversely in so doing.
16. As for the second string to Mr Barton's bow, he claimed detriment by way of discrimination, on account of his disability. The Tribunal first had to consider whether he was suffering from a disability, in accordance with the statutory provisions. They concluded that he did not suffer a disability, however, lest they were wrong on that, the Tribunal went on to consider what would have been the position if, indeed, Mr Barton did suffer a disability. Mr Smith has acknowledged that the detriment complained of is the response of the Respondent, following upon their receipt of the solicitor's letter and the events which culminated in his dismissal.
17. That links back to the self same issue upon which the Tribunal had to adjudicate in respect of the claim for unfair dismissal, based on the protected disclosure, namely what was the reason for those events, and the eventual termination of employment? In that connection, once again, Mr Smith is forced back to his assertion that the findings of the Tribunal were perverse. Once again, the position is exactly the same, namely the Tribunal heard the evidence. The Tribunal assessed the truthfulness, or otherwise, of the relevant witnesses. The Tribunal came to its decision that they believed Mr Lane when he said the reason for the meeting of 26 April and his dismissal subsequently was want of capability and was not connected with his disability.
18. Therefore, without in any way considering whether there is a reasonably arguable case that the Tribunal misdirected themselves on the issue of disability, and we are by no means persuaded that does disclose a reasonably arguable case, at the end of the day, it is simply unarguable that this Tribunal, in rejecting Mr Barton's claim for discrimination on the grounds of disability, has any reasonable prospect of success. Ultimately it is a perversity claim where there was evidence upon which this Tribunal could come to the conclusions that they did.
19. It therefore follows that this being an appeal with no reasonable prospect of success, we dismiss it at this stage, and do not permit it to proceed to a full hearing.