United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


JUDGE A WAKEFIELD:

1. This is an ex parte preliminary hearing of an appeal by Miss Sonia Murray against a decision of an Employment Tribunal sitting at London South, by which her complaints against Excel Airways Limited of disability discrimination and wrongful dismissal were dismissed. The Appellant has not attended before us today, nor has she been represented and we have reached our conclusions in the light of the documents.
2. The grounds of the appeal in essence are that the Appellant did not get a fair hearing in the Employment Tribunal because, firstly, the Chairman was biased, being unprepared to listen to the Appellant and her father who spoke on her behalf at that hearing, was unhelpful when asked for guidance on law and procedure and unwilling to allow the Appellant full scope in the giving of her evidence and in cross examining the Respondent's witnesses. Secondly, it is said that there was an unequal contest before the Employment Tribunal in that the Appellant was not legally represented, whereas the Respondent was represented by a Solicitor. There is also a complaint that the Employment Tribunal members made reference to "law books" but denied the Appellant access to any such. The Appellant seeks to have the decision set aside and for the case to be re-heard on its merits.
3. The background facts behind the Originating Application were that the Appellant had applied to the Respondent for employment as a member of Flight Cabin Crew. She was interviewed and subsequently was told by letter that, subject to satisfactory references and medical requirements, she would be offered a position. On the medical questionnaire the Appellant then completed, she gave further details of the diabetes from which she had suffered for seven years. Having consulted their medical adviser and subsequently the Appellant's general practitioner with her consent, the Respondent did not employ the Appellant, the advice they had received being that she was unfit for employment as a member of the cabin crew because

"There was an increased risk that she would become incapacitated during a flight or when required in an emergency to assist others and that she required full and accurate control of her diet which was impractical in the cabin crew environment."

4. There was no dispute before the Employment Tribunal that the Appellant was disabled within the meaning of the Disability Discrimination Act 1995 and that she was treated by the Respondent less favourably for a reason related to that disability.
5. In paragraph 6 of their Decision, sent to the parties on 23 August 2001 following a hearing on 14 August, the Employment Tribunal correctly identified the issues before them as follows: firstly, whether the Respondent could show that the withdrawal of the offer was justified for the purposes of section 5(1)(b) of the Disability Discrimination Act 1995 and, secondly, whether the Applicant was an employee. They concluded in paragraphs 13 to 15 of their Decision as follows:

"13 The Tribunal is satisfied that the reason of the withdrawal of the offer was material to the individual circumstances of the Applicant and the requirements of the job. The reason was substantial. One of the functions of cabin crew is to assist passengers in an emergency and the Applicant could well be unable to carry out her job due to her disability.

14 Balancing the interest of the Applicant and of the Respondent and taking account of the limited ability to accommodate the Applicant's requirements for regular injections and snacks the Tribunal is satisfied that the Respondent was justified in withdrawing the job offer. In those circumstances the Respondent did not discriminate against the Applicant for a reason relating to the Applicant's disability.

15 The Tribunal also noted that the job offer was conditional and never became unconditional. In those circumstances there was never an employment relationship between the Applicant and the Respondent and accordingly there was no dismissal. In those circumstances her wrongful dismissal complaint is not well founded and fails."

6. There is no sustainable argument in our view that the Employment Tribunal incorrectly identified the issues before them and the relevant law or that they reached a conclusion on the basis of the facts which they found which was wrong in law or perverse.
7. The only remaining question for us is whether it is arguable that the Appellant was denied a fair hearing. In a document headed "Affidavit" but apparently unsworn, the Appellant says, amongst other things, "The Chairman was not prepared to listen. My dad wasn't allowed to say a lot which was unfair. I was not allowed to bring up my HNC" and that relates to the fact that the Appellant had abandoned an HNC course, when the job offer was initially made and was subsequently unable to return to that course after withdrawal of that offer. It is worth saying, in mentioning that, that the HNC course might have been relevant had the matter been found in her favour on liability. It might have been relevant to compensation. The other matter which the Appellant raises in the affidavit is: "We didn't know what was going on. We were also competing against a solicitor". The Appellant also raises matters as to the merits of her original complaints of wrongful dismissal and disability discrimination in that affidavit.
8. To that affidavit the Employment Tribunal Chairman, Mr Peters, has responded by a letter dated 14 November 2001 to the Registrar of this Employment Appeal Tribunal. As is specially relevant in his responses he says the following:

"3 The hearing commenced at 10 am and after the issues had been identified Mrs Gurr gave evidence on behalf of the Respondent she was cross-examined briefly by the Applicant's father and questioned both by Mr Todman and myself. The Respondent's case closed at 10.41 am.

4 The Applicant then gave evidence by reading her statement she was cross-examined from 10.47 to 10.53 am when I asked questions of her and the Applicant's case closed at 10.59 am.

5 Miss Fitzgibbon's submissions took five minutes and the Applicant's father spoke for approximately one minute. The Tribunal adjourned at 11.06 am and at 11.34 am announced its unanimous decision. The proceedings closed at 11.43 am.

6 Throughout both parties had an equal opportunity of presenting their cases. Both parties were involved in identifying the issues both parties had full opportunity to cross-examine the other party's witness and both parties had an equal opportunity of making their submissions. It is quite incorrect to state that I refused to allow the Applicant or her father to speak and also incorrect to state that I was not prepared to listen to their case.

7 The Applicant in her witness statement specifically refers to having commenced studying on an HNC course in tourism at Ayr College and that she gave up the college course in order to take the job at Excel Airways. The Tribunal was aware of that.

8 In cross-examination of Mrs Gurr the Applicant's father put to her that Excel Airways carried diabetics as passengers and received the reply that the Respondent would take diabetic passengers.

9 I have no recollection of referring to any law books during the course of the hearing I might well have done so in order to explain to the Applicant's father the issues at the outset of the hearing but I notice that Miss Fitzgibbons in her submission made reference to various paragraphs of the Code of practice and it may well be that I turned to those paragraphs at that stage. I certainly would not have said to the Applicant's father that he did not need to see the relevant parts of the code.

10 I deny any bias against the Applicant or in favour of the Respondent. No issue of bias was raised during the hearing except after the decision was announced when the Applicant's father accused the Tribunal of bias against Scots, I would point out that the decision was a unanimous decision."

9. Having carefully considered the complaints of the Appellant in her affidavit, those responses of the Chairman and the decision itself, which in our view demonstrates on its face a careful and meticulous analysis of all the issues, we are quite unable to identify any potential bias or unfairness.
10. Whilst we understand the extreme disappointment of the Appellant, firstly as to not being appointed to the position she so much desired and subsequently in her failure to substantiate her claim, we do not find any arguable grounds for this appeal. Inequality of arms is not of itself a basis for unfairness at a hearing. Where such inequality exists it is, of course, incumbent on the judicial body to ensure that the litigant in person is allowed to participate fully as to relevant matters and that any unfamiliar matters of law or practice are explained. We are satisfied that this was done in this case.
11. This appeal cannot succeed and it is dismissed.