United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS H GOWER (of Counsel) Instructed by: Messrs Andrew Maynard & Co Solicitors 6 Gay Street Bath BA1 2PH


 


JUDGE D M PUGSLEY

1. The Appellant initially claimed unfair dismissal and disability discrimination. The originating application was submitted more than three months after the termination of the employment. The tribunal determined that it did not have jurisdiction in respect of the unfair dismissal claim, but extended time for the disability discrimination claim. The claim therefore proceeded to a substantive hearing on the disability discrimination claim.
2. This is not an easy case to follow in that the conscientiousness shown in the drafting of the decision militates against seeing the nature of the case in perspective. No doubt the format of the decision was influenced by the interlocutory orders which were made. The allegations covered a period of time from the Appellant's collapse at work and ending with the termination of his employment on 31 October 1999. The Tribunal decision was that the Applicant was successful in only one of the nineteen allegations made against his employers, namely the Respondent's failure to replace his company car .
3. The Grounds of appeal are copious and there is a persistent theme running through Ground 6(e) that the tribunal failed to give adequate reasons for its decision in the manner that is thereafter particularised. We cannot accept Miss Gower's submission that we should allow the appeal to proceed on the ground that the tribunal decision was perverse; failed to give adequate reasons and failed to make sufficient findings of primary fact. In effect we consider that we are being invited to rehear the case and consider again matters which have already been argued before the Tribunal. We do not consider that that is a course open to us.
4. At the end of the day what concerns us is that reading through the Decision, we do not consider that the Tribunal do set out in a way which tells everybody what the result is, and why that result has been reached, and whether the individual acts of discrimination, which were alleged, whether they could or should be viewed as a chain of events culminating in the act of constructive dismissal.
5. We consider having looked at the grounds of appeal, that really there are two areas where we feel, in particular, are arguable. The first of those grounds is that 6(a):

"In its conclusion in paragraph 9(17) that the Respondent did not dismiss the Appellant the tribunal erred in law in failing to consider the causation of the Appellant's resignation. The employment tribunal found that the Appellant chose early medical retirement which was more beneficial to him financially than redundancy. The Tribunal did not consider whether it was the existence of the threat of redundancy which caused the Appellant to resign or whether the Appellant was willing and content to resign on early retirement terms which were satisfactory to him."

and we also think that ground (d) is arguable, that although:

"The employment tribunal considered each allegation separately, but failed to consider the Appellant's contention that the Respondent's acts taken together amounted to a constructive dismissal and fell within section 5 Disability Discrimination Act 1995."

6. We note that there is a clash of authority in the two Decisions of the Employment Appeal Tribunal, to wit, Commissioner of the Metropolis v Harley [2001] IRLR and Specialist Fabrication v Burton [2000] IRLR 236, as far as the Race Relations Act 1976 is concerned.
7. So therefore, we are of the view that there are two grounds which we believe are properly arguable. We are bound to say that we regard all the other submissions as being a variation on a theme around those two. We are not disposed to allow this appeal to go through on the question of perversity, since we think that as there were copious findings of fact on various matters, the appeal is a Class B case with a time estimate of half a day and the case proceeds on grounds 6(a) and (d).