United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS S McKIE (Of Counsel) Instructed by: Messrs Wilsons Steynings House Fisherton Street Salisbury Wiltshire SP2 7RJ


 


HER HONOUR JUDGE A WAKEFIELD

1. This is an Ex Parte Preliminary Hearing of an appeal by Eldridge Pope & Co against the decision of an Employment Tribunal sitting at Southampton by which the complaints against them by Mr Colin Parkes of unfair dismissal and disability discrimination were found proved.
2. The Respondent had been employed by the Appellants from December 1991 until 7 July 2000, latterly as retail training manager, and was dismissed, on the Appellant's case, for redundancy.
3. At the time of dismissal the Respondent had been absent from work for over six months. During that period the Appellants had initiated a restructuring of the workforce and the Respondent's job as such ceased to exist. The Employment Tribunal, in a decision promulgated on 16 August 2001 following a two day hearing the previous July, found the dismissal was by reason of redundancy but was unfair for failure properly to consult the Respondent in the course of the restructuring exercise. The Employment Tribunal also found that the Respondent was, at the relevant time, suffering from a disability within the meaning of the Disability Discrimination Act 1995, being depression, and that the Appellants had failed to adjust their redundancy procedures to take account of that disability pursuant to section 6 of the Act and therefore had discriminated against the Respondent contrary to section 5(2). The Employment Tribunal did not find discrimination to have taken place under the terms of section 5(1) of the Act.
4. Before us today the argument as to the appeal going forward to a full hearing has concentrated largely on alleged errors of law in the analysis by the Employment Tribunal of the disability discrimination aspects of the case in their decision. We have been unable to see any merit in any of those arguments and had those been the only ones before us, we would have dismissed the appeal at this stage.
5. As to the part of the Employment Tribunal decision dealing with unfair dismissal, we do however consider that the matter should go forward to a full hearing. We are of the view that the Employment Tribunal may have fallen into error when determining that the dismissal was unfair by reason of failures in consultation, in not considering or specifically referring to the Appellants' attempts to consult with the Respondent after the meeting on 23 February. We are also concerned that as to the October vacancy, upon which the Employment Tribunal apparently relied in paragraph 35 of the decision was being an aspect of the Appellants' failure to consult, that vacancy may, on the evidence we are told was before the Employment Tribunal, have arisen after the Respondent was dismissed.
6. Given that the events leading up to the dismissal and involving what the Employment Tribunal found was disability discrimination and unfairness are so related and inter woven, we are in all the circumstances going to allow the appeal to go forward to a full hearing on all grounds currently pleaded although in the light of our comments as to the merits of the disability discrimination grounds, we express the hope that the Appellants will concentrate their efforts on those parts of the decision which are relevant to the unfair dismissal findings.
7. The case is put into Category B with a time estimate for the full hearing of one day. We order that the Employment Tribunal Chairman shall provide his notes of any evidence relating to the October vacancy. Skeleton arguments are to be exchanged between the parties and provided to this Appeal Tribunal not later than 14 days prior to the hearing.