United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS HELEN GOWER (of Counsel) Instructed By: Messrs Andrew Maynard & Co Solicitors 6 Gay Street Bath BA1 2PH
For the Respondent	MR MARK COTTER (of Counsel) Instructed By: Michelin Tyre Co Plc Campbell Road Stoke on Trent ST4 4EY


 


MR JUSTICE NELSON:

1. This is an appeal against the decision of the Employment Tribunal at Shrewsbury of the 31^st May 2001 by which it held that the Appellant's claim for disability discrimination succeeded in only one of the seventeen particulars of discrimination alleged, namely the failure by the Respondent to replace his company car. The Appellant's claim had initially been for unfair dismissal as well as disability discrimination, but the IT1 was submitted more than three months after the termination of the Appellant's employment and the Employment Tribunal accordingly found that it did not have jurisdiction to hear that claim. It did however extend time for the disability discrimination claim and ordered that the allegations of discrimination should be particularised.
2. The Appellant sought to appeal the decision on the broad basis of perversity and failure to make sufficient findings of primary fact, as well as upon specific errors in law. At the preliminary hearing permission to appeal was granted solely in relation to two grounds, 6(a) that the Tribunal failed to consider the causation of the Appellant's resignation when concluding that the Respondent did not dismiss him, and 6(d) the Tribunal failed to consider the Appellant's contention that the Respondent's acts taken together amounted to a constructive dismissal under section 5 of the Disability Discrimination Act 1995.

The Background facts and the parties contentions before the Employment Tribunal.

3. The Appellant started work with Michelin Tyre plc in April 1972 and by January 1997 had been promoted to National Operations Manager (Truck Product) for the North. Since 1977 he had been diagnosed as suffering from rheumatoid arthritis which was satisfactorily controlled with drugs until the latter part of 1982 when his joints were severely affected. He was off work for about three months but thereafter the condition was under control. On the 28^th October 1998 the Appellant became ill and had to be taken to hospital. It was thought initially that he had suffered a stroke or an adverse reaction to his medication for his rheumatoid arthritis, but it subsequently transpired that the problem was likely to have been caused by a migraine. The Appellant was off work from the 28^th October 1998 to the 28^th January 1999. He contended that the Respondent failed to install temporary cover for him whilst he was away ill, and removed him from his job as UK Operations Manager (Truck Product) in December 1998 and offered the same job to another employee, Norman Byrne. They then created a job for him entitled 'Sales Support Manager' which was comparatively unsuitable in that, inter alia, it required knowledge of computer technology which the Appellant did not have.
4. The Respondent denied that the Appellant had ever been offered the job of UK Operations Manager (Truck Product) and asserted that the job of Sales Support Manager was created to utilise the Appellant's particular abilities and allowed him to work from home part-time and remove the need for travel because of his condition.
5. In the Summer of 1999 the Appellant underwent surgery to his right ankle in order to alleviate pain in the joint. He had already had his right wrist operated on for the same reason and it was planned to carry out a similar operation on his left wrist. His consultant rheumatologist, in a report of 22^nd July 1999, expressed confidence that he would be able to return to work in a significantly better clinical condition than he had been for several years, and give many years of excellent future service.
6. The Appellant's post became redundant whilst he was absent, the work being accommodated and undertaken by two other employees. The Appellant and the Respondent entered into discussions as to the Appellant retiring from his employment on medical grounds and he retired on that basis as from the 31^st October 1999.
7. It was the Appellant's contention that from the time of his illness in October 1998 the Respondent had sought to place pressure upon him to resign on medical grounds. They had done so through his line manager, Florent Menegaux, the personnel manager, Mr Baker, and the company doctor, Dr Hobson. They told him that his job was redundant when it still existed and effectively forced him to resign on medical grounds when he wanted to return to work.
8. There was no dispute between the parties that the Appellant was disabled within the meaning of that term under the Disability Discrimination Act 1995. The Respondents denied however that they had in any way discriminated against the Appellant and contended that at all times they were mindful of the Appellant's disability and sought to make reasonable adjustments for it. No pressure was put upon him to retire on ill-health grounds. As to selection for redundancy, they submitted that it appeared likely that the Appellant would be the person who would be made redundant, but no final decision had been made and a search for alternative employment within the Respondent's organisation was still under consideration when he accepted retirement on medical grounds.
9. The parties put written submissions before the Employment Tribunal in addition to their oral submissions. It was clear from the Appellant's written submissions that the Appellant's case was put on two bases. Firstly that he had been directly forced out of his employment and secondly or alternatively, that he had been constructively dismissed. The submissions under particular 17, namely the allegation that the termination of his employment was a discriminatory act, alleged that the allegations of discrimination when taken together demonstrated the intention by the Respondent to put pressure on the Appellant to compel him to accept ill-health retirement, and that the individual acts of discrimination should be viewed as a chain of events culminating in his constructive dismissal.

The Findings of the Employment Tribunal.

10. The Employment Tribunal expressly considered the evidence both oral and documentary and the written and oral submissions of the parties. They dealt with the seventeen Particulars of Discrimination in paragraph 9(1) – (17) of their decision. Their principal findings were that:-

i. The Appellant was a disabled person under section 1(1) of the Disability Discrimination Act 1995 by reason of his rheumatoid arthritis.

ii. The Appellant was not put under any pressure or harassment to resign on medical grounds by M. Menegaux, Mr Baker or Dr Hobson. In paragraph 9(6), (7) and (8) of the decision the Tribunal rejects each of these allegations.

iii. The Respondent acted responsibly towards the Appellant

"The Respondent did what a responsible employer would do in order to care for an employee, such as the Applicant. By way of discussion with the Applicant, it allowed the employer succession planning of staff in the employer's business without it being prejudicial, discriminatory or amounting to less favourable treatment to Mr Catherall." [Paragraph 9(7) and (8) of the decision].

It is clear from these paragraphs that the evidence of the Respondent, through Mr Baker, was preferred to that of the Appellant on this important issue of the case.

iv. The Appellant's job was redundant

"because the remaining duties of the post were accommodated and undertaken by two other employees… the Tribunal also accepts that one less person was required in the department to deal with its workload and no decision had been taken as to who that person would be. Therefore, it could not and did not amount to less favourable treatment to the Applicant because of his disability". [Paragraph 9(14) of the decision].

v. The Respondent did not force the Applicant out from his employment.

"Mr Catherall of his own volition, chose early medical retirement which was more beneficial to him financially than redundancy. The Applicant's evidence illustrated that really the only point of contention was the date of the early medical retirement. It was not less favourable treatment to Mr Catherall and the Respondent did not dismiss him relative to section 4(2)(d) of the 1995 Act."[Paragraph 9(17) of the decision].

vi. The Respondent had not treated the Appellant less favourably in any respect save in relation to its failure to replace his car when he was sick and absent from work. In that respect alone the Applicant had been unlawfully discriminated against.

The Appeal.

(i) Causation.

11. The Employment Tribunal found that the Respondent did not force the Appellant from his employment and that no pressure or harassment was brought to bear upon him to resign on medical grounds. The Appellant submits however that what the Employment Tribunal did not consider was the cause of the Appellant's retirement which involved considering the state of mind of the resigning employee as explained in Sheffield -v- Oxford Controls Limited [1979] ICR 396. The Tribunal should have asked whether the Appellant resigned because the early retirement terms were acceptable to him or whether he resigned because the alternative was dismissal for redundancy which was less beneficial financially. The Tribunal failed to consider that the choice which the Appellant was offered was a choice between redundancy or early retirement on medical grounds and was therefore only a choice as to the terms on which he was dismissed not the fact of his dismissal. There was no conclusion by the Tribunal that the early retirement terms were acceptable to the Appellant and indeed the evidence from both the Appellant (statement paragraph 27) and Dr Hobson (paragraphs 9 – 10 EAT bundle 73) was to the contrary in that it indicated that he did not want to accept ill-health retirement.
12. The case of Sheffield states: -

"Where an employee resigns and that resignation is determined upon him because he prefers to resign rather than to be dismissed (the alternative having been expressed to him by the employer in the terms of the threat that if he does not resign he will be dismissed), the mechanics of the resignation do not cause that to be other than a dismissal. …we find the principle to be one of causation. In cases such as that which we have just hypothesised, and those reported, the causation is the threat. It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation letter… " (402)

13. Where however it is

"the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then we think there is no room for the principle to be derived from the decided cases. In such a case he resigns because he is willing to resign as a result of being offered terms which are to him satisfactory terms on which to resign. He is no longer impelled or compelled by the threat of dismissal to resign, but a new matter has come into the history, namely, that he has been brought into a condition of mind in which the threat is no longer the operative factor of his decision; it has been replaced by the emergence of terms which are satisfactory." (402 – 403)

14. The case of Sheffield was not cited to the Tribunal but the principles which it enunciates should have been applied by the Tribunal as, the Appellant submits, they represented the current law. As the Appellant effectively had to choose between redundancy and retirement on the grounds of ill-health it was incumbent upon the Tribunal to consider whether or not he had accepted terms which were satisfactory to him. If he had not, but had only accepted the terms because the alternative was redundancy dismissal, the operative factor in his decision would have been the absence of any choice as to the termination of his employment rather than the emergence of terms satisfactory to him. The Tribunal did not resolve this point, as they should have done, but left it open. Their finding that the Appellant 'chose early medical retirement which was more beneficial to him financially than redundancy' in paragraph 9(17) of their decisions suggests that the Tribunal itself may have formed the view that the Appellant's only choice was between termination through redundancy or termination through early retirement on medical grounds. On the face of it that sentence is inconsistent with their finding in the same paragraph that the Respondent 'did not force' the Applicant out from his employment.
15. In any event the decision fails to give adequate reasons for its conclusion that the Respondent did not dismiss the Appellant and hence failed to meet the requirements of Meek -v- City of Birmingham District Council [1987] IRLR 250.

6(d) Constructive Dismissal.

16. Whilst it was expressly referred to in the written and oral submissions, the Employment Tribunal failed to make any reference whatsoever to constructive dismissal. They did not at any part of their decision consider the allegations of discrimination as a course of conduct or chain of events. Furthermore, the Respondent took into account when considering selection for redundancy the Appellant's 'absence' from work which took into account his disability and was hence improper, and further failed to carry out an adequate search for alternative employment for him until the 4^th October.
17. The failure to consider these matters and to give a decision upon them in the context of constructive dismissal is another failure to comply with Meek.
18. Whilst the EAT held in Commissioner of the Metropolis -v- Harley [2001] ICR 927 that the Disability Discrimination Act 1995 section 4(2)(d) does not apply to constructive dismissal, another division of the EAT in Specialist Fabrication -v- Burton [2001] IRLR 263 held that the identical provision in section 4(2)(c) of the Race Relations Act 1976 can include constructive dismissal. The Appellant invited us to prefer the reasoning in Harley. The amendment to the Sexual Discrimination Act 1975 to expressly extend dismissal to include constructive dismissal was not conclusive against a broad interpretation of 'dismissal'. If that submission was wrong the Appellant submits that a repudiatory breach amounts to a 'detriment'.
19. The Respondent submits that the decision is clear to the parties knowing the issues in the case, even if it is not wholly self explanatory to a stranger. The findings are adequate and indeed clear and reject the Appellant's case in its entirety, save for one particular discrimination. The main acts of discrimination complained of were, the manner in which the Appellant was selected, the pressure upon him to accept medical retirement, the fact that there was no consultation, and that he was offered no alternative job. Each of these allegations of discrimination failed in that each separate allegation was dealt with in a separate sub-paragraph under paragraph 9 of the decision and those allegations were specifically rejected by the Tribunal.
20. As to the issue of causation, it was to put the cart before the horse to argue that that was an issue which had to be decided in this case. Sheffield -v- Oxford Controls Limited was an unfair dismissal case which this was not. More importantly however as the Employment Tribunal had concluded that the Appellant was properly selected for redundancy, properly offered retirement, and had not been subjected to pressure or harassment or forced out, nothing wrong had been done by the Respondent. The Appellant may have felt forced, but if the procedures were correct, his perception did not matter. In any event the Tribunal found that he chose medical retirement of his own volition and did therefore consider his state of mind finding that he made a free independent and unfettered decision. In paragraph 17 the Tribunal does not say that the Appellant chose early medical retirement 'because' it was more beneficial to him financially than redundancy and were therefore considering the matter as the Appellant says they should have done. Read as a whole, the decision and in particular paragraph 17 show that causation was in effect dealt with, but as the Respondents had done everything right, in truth the question of causation did not arise.
21. The Respondent accepted that if the Appellant did not take medical retirement he was likely to be made redundant, but submitted that this was not as a result of any badgering or discriminatory acts. Even if the choice was between redundancy or medical retirement a cause of action could only be founded if there were acts of discrimination or undue pressure. If there had been no breach in the first place causation did not arise. Furthermore, whilst the Appellant had been selected for redundancy no redundancy notice had been served upon him so that other options were open and he would not necessarily have been made redundant. It is no doubt in this sense that the Tribunal made its finding that no decision had been made as to who the person to be made redundant would be i.e. no final decision.
22. As to constructive dismissal it was accepted that the Employment Tribunal had to look at the overall picture even though a particularised approach had been taken at their request. There were however no breaches of contract pleaded only the allegations of discrimination. Each of those individual acts had been dismissed. None of the dismissed allegations could properly be described as nearly discriminatory or as amounting to a repudiatory breach. The Appellant had in any event expressly contended in his written submissions that the allegations of discrimination when taken together demonstrated an intention to put pressure on the Appellant to accept ill-health retirement and that the individual acts of discrimination should be viewed as a chain of events culminating in his constructive dismissal. The only reasonable inference to draw in the face of such express written submissions was that the Tribunal had in fact considered them as they say they had in their decisions. Paragraph 9(17) makes it entirely clear that the Tribunal concluded, considering the allegations collectively, that there was no constructive dismissal.
23. The Respondent also submits that as a matter of law, constructive dismissal does not fall within the ambit of the Disability discrimination Act 1995 in view of the decision in Harley which, in view of its thorough analysis of the statutory provisions, is to be preferred to the decision in Burton.

Decision.

(i) Causation

24. The Tribunal found that there was no pressure or harassment brought to bear upon the Appellant to resign on medical grounds and that the Respondent did not force him out of his employment. They appear to recognise in paragraph 9(17) of their decision however that the choice open to the Appellant was either between early medical retirement or redundancy and he chose the former because it was more beneficial to him financially. They do not address the question of whether a termination in such circumstances amounted to a dismissal and whether, if it was a dismissal, such dismissal was discriminatory. If the choice was between redundancy or retirement through ill-health the Appellant was not being asked whether he wanted to terminate his employment but only how it was to be terminated. This effectively gave him no choice at all and could in itself be said to amount to a dismissal.
25. We do not accept the Respondent's submissions that clear findings have already been made upon this aspect of the case. It is of course correct that even in circumstances where the employer is in effect saying you will either be made redundant or retire on medical grounds, there will be no dismissal if the 'threat' merely provides the opportunity for terms to be negotiated which prove to be satisfactory to the employee. As was stated in Sheffield, in such circumstances the threat will no longer be the operative factor in the decision, as that will have been replaced by the emergence of satisfactory terms. The Tribunal does not however find here that the terms were satisfactory to the Appellant merely that

"really the only point of contention was the date of the early medical retirement." [Paragraph 9(17)]

26. We have concluded that the lack of clarity on this central issue amounts to an error of law by the Tribunal. If the finding was that the choice was between redundancy or retirement through ill-health the Tribunal should have considered whether the absence of any real choice in such circumstances was the cause of the termination of the employment and hence a dismissal or whether, as was held in the case of Sheffield, the situation with which the employers faced the employee provided the opportunity for satisfactory terms to be negotiated for the termination of employment.
27. The case of Sheffield was not put before the Tribunal and they cannot be criticised for failing to consider it. Nevertheless, the issue of causation as set out above should have been considered and that failure requires the matter to be reconsidered. We are also of the view that the lack of certainty on this central issue in the findings made by the Tribunal causes the decision to fail to comply with Meek.
28. Furthermore in considering this matter and whether the Appellant was treated less favourably than other employees who were not disabled, the Tribunal should have given express consideration to the mode of selection. The documents set out at EAT 95 suggests that the Appellant's periods of absence from work due to disability counted against him in the selection process. Although this was expressly raised in the Appellant's written submissions under Particular 11, the Tribunal did not deal with it in their decision.
29. We are mindful, as the Respondent submits; of the need to avoid construing Tribunal's decisions as if they are were statutes. Nevertheless the failure to deal with these central issues renders the decision flawed and the appeal must therefore succeed on this ground.

(ii) Constructive Dismissal

30. We are satisfied that the only reasonable inference to draw from paragraph 9(17) of the decision is that it was intended to and did deal with the written submissions under that particular which clearly set out the Appellant's case on constructive dismissal. Even though the Tribunal do not expressly refer to constructive dismissal or taking the allegations together, we are satisfied from paragraph 9(17) and the decision as a whole that they did in fact do so.
31. We are however of the clear view that the Tribunal should deal expressly with the allegation under Particular 11 as to the selection for redundancy as set out in the Appellant's closing written submission. Although Particular 11 is not accepted by the Tribunal no reference is made to the selection procedure point even though it is important in relation to whether the circumstances of the termination amounted to a dismissal, and in relation to whether or not there was a constructive dismissal.
32. We have considered the cases of Harley and Burton. They are both cogently argued but for our part we prefer the reasoning in the case of Burton as set out in paragraphs 7 – 16 of that judgment. The wording of the relevant sections is identical and we see no reason why the term 'dismissal' should be narrowly construed so as to exclude constructive dismissal. Direct dismissal and constructive dismissal are both means by which employment is terminated and both have the same effect. A purposive construction is in our view necessary and appropriate and we consider that the amendment to the Sex Discrimination Act 1975 to include a definition of dismissal to include constructive dismissal does not alter our opinion as to the true construction of the section. Such an amendment can be made for the avoidance of doubt rather to add an extra limb to an original definition. We conclude that 'dismissal' under the Disability Discrimination Act 1995 includes constructive dismissal.

Remedy.

33. The Appellant submits that overall, the matter should be remitted to a fresh Tribunal particularly if the question of constructive dismissal is to be considered. The Respondent submits that such a course would be disproportionate and it would inappropriate to reopen all the findings of fact and reasoning upon which no appeal has been allowed to proceed.
34. We are satisfied that the Employment Tribunal in this case gave careful and proper consideration to the matter, save in the respects we have outlined above in allowing this appeal. It would in the circumstances be appropriate for these relatively short matters to be reconsidered by the original Tribunal and we so direct. We see no prejudice arising to either party in this course being followed. On the contrary we conclude that it is the fair and proportionate course to take.
35. Accordingly, this appeal is allowed and the matter remitted to the original Tribunal to consider the question of causation as set out above and reconsider constructive dismissal in the light of firstly, its findings as to causation, and secondly as to the selection procedure adopted by the employer. The Tribunal should hear submissions on these matters. We do not envisage any fresh evidence being required but this will be a matter for the Tribunal to determine.