United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T KIBLING (Of Counsel) Instructed by: Warrington Law Centre 64/66 Newsey Street Warrington WA2 7JE
For the Respondent	MR S CHEETHAM (Of Counsel) Instructed by: Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL


 


MR RECORDER TIMOTHY BRENNAN QC

1. This an appeal from the reserved and unanimous decision of an Employment Tribunal at Liverpool sent to the parties on 15 November 2001. The Chairman was Mr M Homfray-Davies. There were complaints made by the Applicant, Mr Turner, of constructive unfair dismissal and of discrimination contrary to the Disability Discrimination Act 1995 ("The Act").
2. The Employment Tribunal dismissed the complaint of unfair dismissal. There is no appeal in respect of the unfair dismissal element and we have not given it any further consideration.
3. This appeal concerns established principles of the law of discrimination. It concerns the application of law to the facts; there is no new point of principle. From the outset we have been greatly assisted by Counsel of both parties. Mr Kibling deserves particular recognition for his helpful analysis of the issues.
4. It has been agreed that the relevant provisions are sections 4(2), 5 and 6 of the Act.
5. There are two discrete types of discrimination:

1) less favourable treatment

2) failure to comply with a duty to make reasonable adjustments

6. A detriment means placing someone at a disadvantage - Jeremiah v Ministry of Defence [1980] ICR 13, Brandon LJ at 26C.
7. Certain principles are common to the law of discrimination, be it sex, race or disability – see Anya v University of Oxford and Quereshi v Victoria University of Manchester [2001] ICR 847.

Facts

8. Mr Turner was employed by SCOPE until 5 June 2000. In September 1997 he suffered problems with his eyesight and in January 1998 he returned to work. In June 1998 certain arrangements were made including the provision of a worker to assist him.
9. The Amended Grounds of Complaint are dated 22 March 2001.

The Employment Tribunal Decision

10. The issues before the Employment Tribunal were 13 in number. It is convenient to deal with them in turn. They are summarised, though not so numbered, in paragraphs 4 and 4.1 of the Tribunal's Decision. The Applicant complains that he was afforded less favourable treatment alternatively that the Respondent failed to make reasonable adjustments.

1. It is said that the Respondent failed to arrange an assessment as to the suitability of the Access to Work Scheme, alternatively failed to consider transferring the Applicant from the Supported Employment Scheme to the Access to Work Scheme.

2. The Applicant complains of the Respondent's alleged failure to assess the Applicant's needs timeously.

The above two points can be conveniently taken together. A substantial criticism of the Employment Tribunal's decision is that it fails to address these two issues at all. It is not possible to identify from the Employment Tribunal's decision what they thought about the issues and why the Respondent acted or failed to act as it did.

3. The Respondent's refusal actually to transfer the Applicant from the Supported Employment Scheme to the Access to Work Scheme.

The Employment Tribunal touched on this issue in paragraph 6.13, but a finding as to the justification or otherwise for the Respondent's refusal is lacking.

4. The Respondent's failure to comply with action plan dated 17 July 1998.

Although referred to in paragraph 6.6 of the decision, the Employment Tribunal does not deal with the failure to implement the action plan.

5. Oral warning on given by Mr Osborne on 10 July 1998.

Paragraph 6.4 of the decision does not address whether that amounts to discrimination under the Act.

6. The Respondent's failure to deal with Applicant's appeal dated 16 July 1998.

Paragraph 6.7 does not address the question of reasonable adjustment. This may be because of the findings of fact made by the Employment Tribunal. The Employment Tribunal found that the visual disability was a pretext put forward by the Applicant, but did not explain why. The Employment Tribunal had a duty to grapple with the issue, but did not.

7. The Respondent's conduct in taking formal disciplinary proceedings against the Applicant.

This is referred to in paragraph 6.8, but the Employment Tribunal does not make any attempt at analysis.

8. Confirmation of oral warning for one matter, namely a refusal to work a revised shift pattern.

Paragraph 6.8 does not address the question of whether this is discrimination. It does not analyse the Tribunal's view of the Applicant's case, that his refusal to work the revised shift pattern was due to his disability.

9. The Applicant's complaint about letter dated 17 February 1999.

The Employment Tribunal dealt with this in paragraph 6.15. It is hard to see justification for Employment Tribunal's criticism of the Respondent in writing letter. The Employment Tribunal subsequently found that he suffered no detriment as the Applicant did not in fact complain about this aspect of his treatment in his originating application. The Employment Tribunal was entitled to make this finding.

10. 17 June 1999 letter which referred to Applicant's employment being at risk.

This is dealt with in paragraph 6.18 of the Employment Tribunal's decision. The Employment Tribunal appears to confuse discrimination under s 4(2)(d) and 5(1)(b). The Employment Tribunal fails to deal with whether it was reasonable for the Applicant to move to bungalow 104.

11. Mary Kennedy's confrontational manner on 22 November 1998.

There can be no criticism of the way the Employment Tribunal dealt with this issue.

12. Respondent's refusal to allow Linda Thomas and Mark Sanderson to attend meeting on 2 March 2000.

The Employment Tribunal touch on this in paragraph 6.28 of the decision. It does not analyse the justification for or consequences of the refusal to allow these individuals to be present.

13. The Respondent's refusal to allow meeting of 2 March 2000 to be tape-recorded.

The Employment Tribunal entirely fail to deal with the question of whether taping was appropriate in the light of the Applicant's disability.

11. There are significant shortcomings in the analysis of facts and the application of law in the Employment Tribunal's decision. The Employment Tribunal's conclusions in paragraph 7.1 fall short of acceptable analysis. Although the decision records that the Employment Tribunal took account of the guidance in the Code of Practice, it is not clear how it took this into account.
12. On behalf of the Respondent, Mr Cheetham recognised that the decision contained shortcomings, which he could not overcome. He referred to statutory references contained in the decision as supporting a contention that the Tribunal had applied the law correctly. However, he did not contend that the decision could be entirely upheld.
13. We therefore allow the appeal and set aside the decision of the Employment Tribunal in respect of the complaint of discrimination on the grounds of disability. We remit the matter to a freshly constituted Employment Tribunal for determination.