United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J HEAL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme
For the Respondents	No appearance or representation by or on behalf of the Respondents


 


HIS HONOUR JUDGE J ALTMAN

1. This is an appeal from the Decision of the Employment Tribunal sitting at London South on 24 and 25 October 2000, when the Applicant's claim for disability discrimination was dismissed, and the claim for breach of contract was dismissed (save that the Tribunal recorded an undertaking that the Respondents agreed to pay £300 in respect of outstanding telephone expenses) and the claim for unlawful deductions from wages was withdrawn upon the basis that the Applicant's outstanding loan was agreed to be extinguished.
2. The Applicant appeals in relation to the first two of those matters, the dismissal of the disability discrimination claim, and the dismissal of the breach of contract claim. The wording of the second of those is different from the finding that the Applicant had withdrawn a claim for unlawful deductions, and we do not read it to be a finding that the actual breach of contract claim was agreed or compromised by agreement. It appears to be contended that it was simply dismissed but there was an undertaking and, indeed, in the way in which that is referred to in the Decision of the Tribunal at paragraph 28, it appears that they regarded the breach of contract claim as confined to the calculation of outstanding telephone expenses.
3. We deal with the breach of contract claim first. It is quite apparent from the Originating Application in the numbered paragraph 2, that the Applicant complained, amongst other things:

"My contract of employment contained a stated Disciplinary procedure which was not followed in the case of my dismissal. The procedure states that in instances of alleged misconduct an investigation will take place. I was not advised of this, nor were any alleged findings discussed with me."

The Employment Tribunal conducted a detailed investigation of the disability discrimination, to which we shall return, and that was recorded in the Decision. At paragraph 16 of the Decision, the only reference to consideration of contractual matters deals only with the dismissal. In the context of a finding that Mr Cooper genuinely relied upon the content of the quite strong reservations expressed by Mr Sparrow, in concluding that the Applicant would have to be removed from the ASDA Charlton branch, they go on to say that:

"17 …… It follows in our judgment that it would have been difficult to place the Applicant in any other ASDA branch"

4. Miss Heal, who has appeared on behalf of the Applicant, without fee under the ELAAS scheme and to whom we are enormously indebted for the very helpful and careful argument presented to us, points out that there appears to be no real factual basis for the conclusion that because one manager did not want the Applicant at his store, that no other manager would have had her at their store. More important than that, is the finding of fact that the dismissal was based essentially not upon the fact of the complaint by ASDA, but upon the reliance by Mr Cooper on the content of the complaint from ASDA. That is of some significance, bearing in mind that the letter of dismissal itself suggests that they had no alternative but to dismiss because of the complaints of a third party. In those circumstances, the conclusion of the Tribunal that the dismissal was for a reason of misconduct, appears to us inevitable, which according to the Originating Application, activated the procedure in her contract which entitled her to an investigation.
5. It is true that in paragraph 18, the Tribunal went on to find, in relation to the question of discrimination, that:

"the reasons for the dismissal… were encompassed globally within the general proposition, namely "the customer is right", and the individual reasons making up that request from the customer we find were valid and justified."

It appears that the Tribunal themselves had purported to form an assessment of the validity of those complaints on the evidence before them, but we are driven to the conclusion that Mr Snowden, writing on behalf of Cooper UK Cleaning, the Company Secretary, appeared to be expressing the view that there was no need for any investigation. That was a clear breach of contract. We can understand, although there is no evidence of it, that an employer approaching the one-year barrier would wish to bring matters to a speedy conclusion, even at the risk of breaking good industrial relations practice and being in breach of contract, but it seems to us inevitable, on the findings of fact of the Tribunal, that there was a breach of contract in this case, for it appears to be the fact that there was a contractual entitlement to an investigation before dismissal for misconduct.

6. This is not a clear-cut case. It is right, it seems to us, that in expressing our judgment, we are entitled to bring to bear the experience of this Employment Appeal Tribunal, having with it two members with considerable experience in industry. It is apparent, it seems to us, that an investigation would have involved looking at the substance of the complaints made by ASDA, inevitably seeking permission to interview witnesses of another employer; possibly involving the provision of some form of appeal process; possibly involving the process of negotiation or discussion with the customer, and therefore, quite likely to be a rather more involved process than in most cases. It seems to us that that process would probably have taken a month, but at this stage, subject to submissions that are made to us, we make no final finding in relation to that. Nor have we considered any other implications that may have flown from such an investigation. We conclude that the Applicant wins her appeal on the point of the breach of contract. What to do in respect of that is a matter on which we would be grateful for further submissions.
7. We turn now to the issue of disability, and we say at the outset that two things are very apparent. First it is that had the Applicant had the necessary length of service with her employer, on the information that we have received, she would have had a strongly arguable case that her dismissal was unfair. We are aware that she had, quite understandably, a very deep sense of grievance that that unfairness has never properly been considered by a Tribunal or a Court. She will, we are sure, understand that we cannot consider it because the law does not permit us to do that. Employers can behave as unfairly as they like to employees in the early part of their service. The Courts can do nothing because Parliament says that employees have to give a certain amount of service before they get that sort of protection. This would not be the only case in which, if it be the case and we do not know the facts, employers have taken advantage of that provision.
8. The second factor that is clear to us is that round about the time that the Tribunal was concerned with, and sadly since, a number of actions of the Applicant, which would normally be regarded as possibly unhelpful, are no fault of hers whatsoever. She herself brought to her employment loyalty, skill and experience; she had worked in this sort of industry for household names for many years, and she herself, left to her own devices, would not have suffered as she did. However, she was visited, and has been visited, by the pernicious illness of depression, which is not her fault in any way, and this has obviously had a big impact on her work and her life.
9. We turn now to the Decision before the Employment Tribunal. The Tribunal considered first of all whether the Applicant was a disabled person. They considered the evidence about her disability, and they came to the conclusion that she was a disabled person within the Act. Not only is she disabled due to her illness, in ordinary everyday terms, but the consequences of that upon her day-to-day activities would be substantial, and therefore, she comes within the Disability Discrimination Act.
10. The Employment Tribunal then went on to consider the element of discrimination, and found as a fact that the principal detriment alleged was the dismissal, and there is no appeal from that finding. They then turned to the reasons for that dismissal, and they found that the reasons for the dismissal were the reasons stated by Mr Cooper, namely a number of reasons put together and asserted in one letter from the ASDA Store Manager, Mr Sparrow of 21 January 2000. The Applicant has shown us the letter of dismissal, dated 28 January, which repeats the five complaints made, except it adds as to the allegation of:

"questionable judgment skills with regard to employment of the cleaning team.
i.e. Shoplifting."

We are not sure what that refers to; we assume that it must be that one of the employees brought on to the site of ASDA was involved in some accusation that she - nothing to do with the Applicant - had been guilty of shoplifting.

11. The Tribunal rejected the Applicant's case that those matters came about because of a conspiracy between Mr Cooper and the ASDA Manager, and they concluded, in the passage to which I have already referred, that Mr Cooper genuinely relied upon the complaints made to him, and they then came to the question of the extent to which that was related to the disability. They said:

"We find that none of the reasons as a matter of fact related even remotely to the Applicant's disability."

The Employment Tribunal point out that the Applicant was away from work because of ill-health at the time of dismissal, asserted by the Applicant herself as being influenza, and that there had been a conversation in which she had told her employer that she was hoping to be fit to return and be signed off by her doctor.

12. The Employment Tribunal then make a finding in paragraph 20 that the matter of poor attendance was related to the matter of the incorrect use of a clocking card rather than absence due to influenza, and they came to the finding that the reasons for dismissal, to which I have already referred, did not relate to the Applicant's disability which they had found to exist. They then considered, in any event, matters under the heading of "The Respondent's Knowledge of Disability". Mr McGuinness, who interviewed the Applicant for her job with the Respondents, knew something about her past history of depression, but believed that it was in the past, and that there would be no difficulty in work. The Employment Tribunal was not very impressed by these Respondents' procedures for monitoring disabled staff, and made recommendations as to how it should be approached, but they also found that on the evidence Mr Cooper, who had clearly made the decision to dismiss, he was not personally aware of the conversation between the Applicant and Mr McGuinness.
13. The Employment Tribunal then considered the case of H J Heinz Ltd -v- Kenrick [2000] IRLR 144 and, in particular, the judgments of the President at paragraphs 25, 26 and 27. Those very paragraphs have been helpfully drawn to our attention in support of this appeal. In effect, what is there established is that the Tribunal, in looking for the question as to whether a dismissal, being a detriment, related to a disability, should look not simply at the proximate cause of the dismissal, and it was held that whether or not the lawyer knew of the link is not the test. The test is whether objectively regarded, there is the link as expressed in the statutory provision. The leading case of O'Neill [1998] IRLR 233 was quoted and explained as providing that the claimant in that case would have been dismissed for a reason connected with her pregnancy, if she was able to demonstrate at the hearing that it had been her pregnancy that had made her faint, even if both she and the employer had thought at the time that she had fainted because she had been "out clubbing too late the night before" The judgment continued in paragraph 25:

"If, however, the employee were then able to show

that his slowness which, as I add, led to the detriment

"…..was by reason of his having an artificial leg then, as it seems to us, he would, in such a case, have been treated less favourably 'than others to whom that reason does not apply'."

He would have been so treated for a reason, an acceptable slowness, which related to his disability, and Ms Heal, on behalf of the Applicant, argues, that the process of reasoning that the Employment Tribunal omitted in this case, was to ask themselves not the proximate cause of the dismissal, namely the five matters alleged, but whether those aspects of conduct were themselves related to the disability of the Applicant.

14. Here was an employee with an exemplary record, well able to cope with this sort of work in normal circumstances, suddenly performing in what was, on the face of it, an uncharacteristic way. Surely the Tribunal should have asked themselves "Could this have been due to the disability?" and they should, Ms Heal would say, have answered that question on the balance of probabilities in the affirmative, or at the very least, have sought an investigation of that issue before the Tribunal.
15. However, the Employment Tribunal, in paragraph 25, found:

"We have no doubt that the Applicant herself did not believe that she was "disabled" either within the meaning of the Act or indeed in any other way and we reject her assertion that she said something along those lines to Mr Cooper."

There again, in the Heinz case, the question that is dealt with is that it does not matter whether the employer or the employee knew. Then in paragraph 26, the Tribunal continued:

"…..so far as Mr Cooper was concerned this was by no means a case of "closing his mind to the obvious" because the problems which were arising were all in our judgment totally unrelated to the obvious problems which the Applicant has suffered over the years with her unfortunate depression; this was not for example a case where the Applicant was being criticised for being "forgetful" or moody or anything of that kind. Indeed, the matters about which Mr Cooper himself had firsthand experience in relation to the completion and handing in of the weekly rota plans; the use of swipe cards and the decisions about which employees should be retained or dismissed were all matters about which Mr Cooper was entitled to conclude the Applicant had taken conscious and deliberate decisions. In our judgment therefore the question of knowledge of the disability in the result was irrelevant to the issues which we had to determine."

It is perfectly true that that answer was not, strictly speaking, to the question as to whether or not those aspects of conduct could have been related to the disability, but it does indicate the issues that were truly before the Tribunal.

16. Ms Heal says that there was sufficient to put the Tribunal on notice that this matter should be investigated. It is true that the Applicant was actually represented before the Tribunal and one would normally leave it to a representative to put forward the case. Mrs Davies is very critical of the way her case was put; she has, in fact, shown us the very long list of material that she provided to her representative, of which she said he made no use whatsoever. Where there is a representative who is, perhaps, not the most experienced, and we do not know what the position was in this case, it is the practice of Tribunals to seek out, and to explore issues and to ensure in an informal way that obvious elements of a case are not overlooked. That was exemplified in the case before the Employment Appeal Tribunal of Langston -v- Cranfield University [1998] IRLR 172, where an applicant was, in person, claiming about an unfair dismissal following upon redundancy, and had failed to deal with obvious issues, for instance, of consultation and fair selection for redundancy, and the question of whether reasonable steps had been taken to find alternative employment. It was held that there was clearly a duty on the Tribunal to satisfy itself about the evidence in relation to those obvious ingredients. Ms Heal argues that in this case, with this obvious dichotomy between the excellent work record of the Applicant on the one hand, the allegations of her behaving out of character on the other, and the knowledge of the Tribunal that she had suffered depressive illness, the Tribunal should have been alive to the need to investigate that. But the passage of the Decision to which we have referred, makes it clear that that really was not the case before the Tribunal.
17. The case before the Tribunal was that the Respondents' allegations were untrue, and indeed, the consequence of a conspiracy. Furthermore, the Tribunal, it seems to us, had addressed the possibility of a link and had looked at the type of allegations, and had concluded that they were not allegations themselves that would give rise to the need to question whether they might be the type of thing that was caused by depression. They could only bring their own knowledge of it to bear, and it seems to us inevitable that we conclude that if, in this hearing, the Tribunal had directed its mind to the issue "could the dismissal have related to the Applicant's illness?" they would have been bound to have concluded that there was no evidence, because, effectively, there was no medical evidence before them to support that proposition.
18. Furthermore, the Applicant's case was that she would not have behaved like that. It seems to us, therefore, that in this particular case, on the evidence before the Tribunal, as to whether the disability may have been related to the dismissal; even though it was for other ostensible causes, even if that issue fell for determination as a theoretical possibility, it simply did not arise in the case before the Tribunal either as an issue or evidentially.
19. Whilst we have every sympathy with the arguments put forward now, we must caution ourselves against re-visiting with hindsight, issues that did not have the benefit of the knowledge that this Employment Appeal Tribunal may have acquired by hindsight. It may be that the Applicant, given different advice at the time, medical and legal, may have come to a different view about how to see the conduct of her employers at the time. This case comes fairly and squarely, not within the sort of matter that was being talked of in the case of Langston, but in those cases which clearly establish that it is not possible on an appeal to the Employment Appeal Tribunal to raise wholly different matters from those that were canvassed in the Tribunals. Accordingly however attractive the theoretical argument that Ms Heal puts forward is, it seems to us that it cannot found a legal proposition that the Tribunal erred in their Decision.
20. We now come to determine the Order we should make upon allowing the appeal in relation to the claim for breach of contract, and we have been invited to make such Order as we consider appropriate. It seems to us that we have sufficient information before us to exercise a judgment that there seems to be no point in remitting the matter to a Tribunal. It is not so much a question of evidence, but a judgment of the sort of thing that we would expect would happen. We bear in mind the small amount of money involved, the tremendous inconvenience and the terrible tension that is always there on the part of the litigant coming to a Court or a Tribunal, and how heightened that is in this particular case. We have decided to substitute an Order in this case that there is a finding that the Respondents were in breach of contract by failing to give time to fulfil the contractual obligation to investigate an allegation of misconduct before determining a dismissal.
21. For the reasons we have already given, we consider that that breach foreshortened the date of dismissal by four weeks from 28 January 2000, and we award the four weeks' gross pay that would have been paid during that period, which we calculate to be £288.45 per week. That seems the clear evidence that has been presented to us, and it is very close to the figure that was accepted by the Respondents in the Notice of Appearance, which produces a total award of £1,153.80. That seems to us the appropriate figure for damages. We do not propose to reduce that figure in relation to taxation. We are mindful of the fact that the Applicant did not work after that time, and therefore there is no evidence before us that she would have, over the calculation of her earnings for the full year, have had to pay any tax on that in any event.