United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR IAN WRIGHT (of Counsel) Instructed by: Retail Motor Industry Federation Legal Services Dept 201 Great Portland Street London W1N 6AB
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


MR COMMISSIONER HOWELL QC

1. In this appeal which is before us today for full hearing pursuant to the directions of a different division of the Employment Appeal Tribunal given at a preliminary hearing on 11 October 2000, the Pendragon Motor Group Ltd, trading as Stratstone (Wilmslow) Ltd, which was the Respondent to the Tribunal proceedings brought by one of their former employees Mr Andrew Keith Ridge, seeks to have set aside as erroneous in law the interlocutory decision of the Manchester Employment Tribunal given, we regret to say, as long ago as 10 July 2000 and contained in Extended Reasons sent to the parties on 19 July 2000 at pages 5 - 8 of the appeal file before us.
2. The proceedings before the Tribunal by Mr Ridge had been brought by an Originating Application, initially on 23 November 1999 and subsequently amended, alleging unfair dismissal and disability discrimination as well as breach of contract on the part of the employer ("Pendragon") in relation to coming to the end of Mr Ridge's employment on 17 November 1999. He had been employed, according to his version of events, solely as a driver, and according to Pendragon as a driver and valeter of motor vehicles, the distinction being that valeting duties involve cleaning out and looking after, at any rate the interior of the vehicle that the driver is responsible for in addition to driving duties.
3. It is common ground that Mr Ridge had some form of neck or back problem which, on the basis of evidence that he produced at a preliminary hearing before a different panel of the Employment Tribunal on 27 June 2000, had been held to amount to a physical disability within the meaning of the Disability Discrimination Act 1995. The basis of Mr Ridge's contention of discrimination against him included allegations that the employer had failed to make reasonable adjustments for him as a disabled person, and had discriminated against him by dismissing him when he was unable to, or expressed himself unable to, carry out valeting duties as well as driving duties on the vehicle for which he was responsible.
4. The single issue with which we are concerned is whether it was right for the Tribunal on 10 July 2000 to decline altogether to admit as evidence a video recording taken on behalf of Pendragon which would show according to them that he was physically capable of doing a good deal more than he had been alleging: both at the preliminary hearing when he had been held to have been disabled, and as part of the continuing case on the two issues of disability discrimination and constructive dismissal that remained before the Tribunal on his substantive application. That was after the withdrawal of other breach of contract and subsidiary complaints as recorded in paragraphs 1 and 2 of the Tribunal's Decision of 10 July 2000.
5. The Tribunal refused to admit this as evidence, for reasons which they gave in the Extended Reasons before us. That was done without looking at the video itself, though it was common ground between the parties that the contents of the video did show the Respondent, and did show him carrying and lifting a babyseat from his own car for a short distance, and also showed him lifting a small bag from his car. The potential relevance of that becomes apparent when one places it against what Mr Wright, who appeared before us on behalf of Pendragon, explained in his helpful Skeleton Argument as being the substance of the evidence relied on by Mr Ridge at the preliminary hearing before the Tribunal, to show the nature and extent of his disability. It was held by the Tribunal that this amounted to a physical impairment: acute strain to the neck or lower back, affecting him substantially in the day-to-day activities of mobility, and ability to lift, carry or otherwise move everyday objects.
6. As recorded in Mr Wright's Skeleton Argument at paragraph 7 which we accept for this purpose in the absence of any objection (Mr Wright having appeared as Counsel at the hearing):

"7 Some ten minutes or so before the start of the preliminary hearing the Respondent had served a witness statement which gave graphic examples of his physical restrictions. He said he avoided gardening, washing up or vacuuming his car. When he gave oral evidence at the preliminary hearing the Respondent went further than his statement and said that he could or would not lift a bag of sugar from a shelf at the supermarket."

The video evidence the employer was seeking to put before the Tribunal was to show Mr Ridge leaning into his car, lifting a babyseat containing his baby from the front nearside seat, and carrying the seat to his front door; and in addition, lifting a holdall type bag from the car boot and carrying it, without apparent discomfort. Whether there was or was not apparent discomfort is, of course, a judgment which can only be made by somebody who had seen the video. The Tribunal had not done so before they pronounced it to be of "no probative value".

7. The appeal before us against their decision not even to admit or look at this evidence, for whatever it might be worth, was brought by a Notice of Appeal dated 1 August 2000. After some confusion, it is not opposed before the Appeal Tribunal today. A Skeleton Argument from Counsel on behalf of Mr Ridge had been lodged and we have taken its contents into account, but since then, by a letter dated 2 November 2001 submitted to the Appeal Tribunal, Mr Ridge's solicitors have indicated that they considered it would be inappropriate for Counsel to attend to oppose the appeal before us at the effective hearing of the appeal this morning, and therefore in their words:

"We are minded to neither agree nor oppose the appeal"

8. In those circumstances, in the absence of any effective opposition, we have considered the merits of the appeal and we have unanimously concluded that we are satisfied that there are good grounds for allowing it, and setting this interlocutory decision of the Tribunal aside. It is only necessary for us to say briefly why we have reached that conclusion, which we can summarise in one sentence by saying that the Tribunal, in our judgment, did misdirect themselves, against the background of the other evidence in this case, in determining without having seen the video at all, that it could be of no probative value and of no assistance to them in determining the issues they had to decide.
9. The particular reasons to which Mr Wright, in his submissions, directed us were first that the Tribunal appear to have misdirected themselves in paragraph 6 (i) of their Extended Reasons at page 7 in making the erroneous assumption that the case involved no question of whether Pendragon had failed to make reasonable adjustments to cope with Mr Wright's alleged disability. In fact, there was a clear allegation in the amended Originating Application, which is before us at page 19 of the appeal file, that the Respondent had failed to make reasonable adjustments and that that failure substantially disadvantaged the Applicant in comparison with able bodied employees. It appears to us that the extent or otherwise of Mr Ridge's actual physical capabilities must be relevant to the reasonableness, or otherwise, of any adjustments that were required to accommodate him, independently of the question of the employer's knowledge which was all the Tribunal referred to.
10. Secondly, we are satisfied that the Tribunal erred in directing themselves in that same sub-paragraph and in the following sub-paragraph 6(ii) that the contents of the video, showing what Mr Ridge had been doing some six months after leaving the employment, could not possibly give the Tribunal an indication of the extent of his capabilities at the time of the events relied on as showing that he had been constructively dismissed, or had been discriminated against as a disabled person.
11. We accept that the Tribunal thereby fell into error because as we understand it, the medical evidence adduced by Mr Ridge before the Tribunal had been to the effect that his physical condition had, if anything, suffered a slight deterioration since that time and at the very least, there was no suggestion whatever of his condition having improved in the intervening six months. We are unable, for our part, to see how it could then be said that an indication of what he was, or was not still capable of doing, six months after the event could be of no relevance at all, to what his actual capabilities had been at the earlier time.
12. Further, we are satisfied that the Tribunal erred in paragraph 6(ii) in holding that the video evidence must be irrelevant because it contained no footage of Mr Ridge actually valeting a car. On that we accept Mr Wright's submission that a reasonable Tribunal ought to have concluded that the actions which it was not disputed were shown on the video could have had relevance to whether he had indeed been disabled from carrying out the arm and upper body movements required for valeting a car, and consequently whether it was reasonable to require him to do so, or what adjustments might have been called for.
13. Fourthly, we are satisfied that the Tribunal fell into error in regarding the fact that the video was admittedly a video which had been edited and did not show continuous activity over a period of hours as being a ground for excluding it from consideration altogether. It was agreed that the video evidence sought to be placed before the Tribunal had been edited from a much longer period of video surveillance of Mr Ridge, but it was not disputed before the Tribunal that the edited passages showed a genuine picture of the activities that Mr Ridge was in fact carrying out at the time they were taken. Again, we accept Mr Wright's submissions that the fact that a video shows edited highlights is quite properly a matter which can be the subject of submission to the Tribunal on the weight to be attached to it. That is a matter on which, obviously, Mr Ridge will be able to give evidence, and submissions can be made on his behalf on the value to be attached to the edited version of the video at the actual hearing itself. But we are not satisfied that that is in itself a ground for refusing to accept it as evidence altogether.
14. For those reasons we allow the appeal, which as we say is unopposed before us today. We remit the case to a differently constituted Employment Tribunal for consideration of all material issues and evidence on the claims of constructive dismissal and discrimination that remain in issue under this Originating Application. That evidence, in our view, should include any properly adduced and proved video evidence to show the true extent of Mr Ridge's physical capabilities even six months after the events in question, which Pendragon seeks to adduce. What that evidence may be worth, when seen is of course a matter for the Tribunal itself to determine.
15. In remitting the case, we express our concern that these proceedings should be brought on to final determination as soon as possible. We think it regrettable that this interlocutory appeal has now taken something over a year since it came on in the Employment Appeal Tribunal for preliminary hearing in October 2000. This delay has had a further effect, as we understand that a parallel application to the Tribunal for the review of the original Decision of 27 June 2000 on the disability issue has been stayed by the Tribunal of its own motion, pending the outcome of this appeal since Pendragon obviously also wished to adduce the video evidence in support of that application for review as well, as relevant to the question of whether Mr Ridge was indeed suffering the substantive adverse effects he claimed at the material time.
16. Although this delay is not the fault of the parties, we think it is high time these proceedings were now brought to a conclusion in the interests of everyone concerned; and the best way of achieving that will be for the application for review of the preliminary hearing determination on disability to be dealt with by the same Tribunal as will now consider the constructive dismissal and discrimination issues as a result of our Order, so that the same video evidence does not have to be considered twice by different Tribunals even though the issues to which it may be relevant are distinct.