United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DANIEL MATOVU (Of Counsel)


 


JUDGE ANSELL

1. Mr Jenkins represented today by Mr Matovu seeks our permission to advance to a full hearing to challenge the unanimous decision of the Tribunal sitting at Reading who, following hearings held over 2 days in August 2002, dismissed his complaints both under the Disability Discrimination Act and also for constructive unfair dismissal.
2. The facts of the matter were on any view distressing. In 1987 the Applicant had a motorbike accident in which he injured his left arm. As a result of that accident his arm has withered and he is required permanently to wear a sling. He commenced work for the Respondents at their well known theme park in March 1998 working in a number of capacities, ultimately as an Attractions Team Leader. The park is divided into a number of distinct areas with various attractions relating to the age of the visitors.
3. It became a practice to reward longer serving employees with a personalised lego model. The Respondents' case was that the idea behind the model was that it should be personalised and should depict the individual concerned. At an award ceremony held in March 2001 the Applicant was given a model in recognition of his three years service and depicted him in a uniform which the Applicant conceded was quite accurate but with his right arm in a sling. It was in fact the left arm which had been injured so that in itself obviously was distressing.
4. The Applicant was dismayed when he realised what his award was. He alleged that his was the only model that showed somebody unhappy and with other than normal features thereby emphasising the disability which he had tried hard to overcome. He attended work for two further days but was certified sick from work thereafter and in fact never returned to work. The history of the matter thereafter is fully set out in the Tribunal's decision. We do not propose to go into it. He was in fact seen by a psychiatrist in June and the psychiatrist reported that the Applicant was suffering from a depressive episode triggered by an insensitive experience at his place of work causing him to feel humiliated with a loss of confidence in his management.
5. The Applicant was paid for some considerable time. There were some meetings with him eventually the Respondents decided that they could no longer carry on making these payments to him. There was some discussion about the possibility of finding him another vacancy and indeed in January 2002 he was offered the possibility of a vacancy within the food and beverage department which he rejected. He resigned on 18 January setting out a number of areas that he said had led to the result of a breakdown of the trust and confidence between employer and employee which he said entitled him to resign that is constructive dismissal.
6. His complaint about disability as set out in that letter and indeed as set out in his disability complaint questionnaire related as he said to being depicted as the only person to have a disability portrayed had moreover with the wrong arm in the sling. That was how the Tribunal had understood the case certainly when they looked through the original documents; there is a finding to that effect. In the final agreed list of issues that was prepared, the issue whether the Respondent for a reason which related to his disability treated the Applicant less favourably than it treated or would treat others to whom that reason did not or would not apply by presenting him with an award of a male model with one arm in a sling. There is another version of that document which had been prepared the previous day. We are not certain whether that document was seen by the Tribunal. It suggested that the disability issue was subdivided namely; did the award depict a model of the ride attraction which the individual worked or the function they performed or did those awards represent personalised models of the individual.
7. Mr Motovu's main complaint in essence is that the Tribunal never understood the disability issue and as a result displayed on occasions a bias against him because they felt that on occasions he was as it were wasting the Court's time by going into matters which were not relevant to the issue before them. He has raised a number of specific complaints. He started off by saying that the Tribunal had called him in and given a preliminary review about the case which in fact he decided not to pass on to the Applicant and that in itself displayed sufficient bias in the part of the Tribunal so as to indicate to him that he would not get a fair hearing thereafter. We can deal with that matter at the outset. Having seen the Chairman's notes we do not agree that that was the intention of the Chairman and the colleagues at that time. We see nothing wrong in proper case management for a Tribunal to express at the outset a provisional view of the case having read through the documents provided they make it clear, as the authorities have stressed time and time again, that they are not presenting a closed mind to the parties. We are satisfied there was no evidence that thereafter they did indeed express a closed mind though they may have had difficulty, as we did, at the outset in actually identifying the correct issue as to disability.
8. We do not accept that the preliminary indication amounted to a sufficient bias to require us to take that issue further forward by for instance requiring Affidavits from the Chairman and indeed allowing that matter to be argued fully at a full hearing. Can we also say that we see no substance in the further arguments of Counsel in relation to his inability to question either his own client or indeed the witnesses particular Mrs Mortimer on the then issue of how he could have been depicted in terms of a work environment or where he was working on the complex.
9. We note from the Chairman's letter that Counsel for the Applicant was allowed considerable leeway in terms of examination in chief notwithstanding the fact that the guidance is that the evidence in chief should be effectively the statement of the Applicant perhaps followed up by one or two supplementary questions; he was allowed thirty minutes of examination. Mrs Mortimer was cross examined for an hour and ten minutes and it seems to us that the Tribunal gave Counsel adequate time to explore all the issues that he should have done and indeed it appears from the Tribunal decision that the issues were fully considered particularly as to how the models were depicted and the area in which the Applicant worked and what particular item could have been shown, on the model in relation to his place of work within the attraction park.
10. The substantial complaint is that the Tribunal failed to consider the core issue in the case. They identified how the case had moved from the original allegation which was the complaint being made about his depiction showing his arm in a sling to the alternative complaint which was that he was not depicted within a work environment. The core of the complaint as we now understand relates to the failure to depict the Applicant's model within a work environment as the majority of the other models were. We refer to paragraph 21 of the decision of the Tribunal which clearly identified that, save for two women in Human Resources who were identified only as to physical presence, others models were identified in relation to their work environment such as for example if they were in maintenance or food and beverage, by a work tool, a drill, a pizza, a cup, a clipboard. There may be one other employee who has not been clearly identified in this way but certainly the majority of the employees on a list that was shown to the Tribunal did have a work related part of their model.
11. Thus the issue was whether the failure to identify the Applicant's model in a work related environment thereby highlighting his disability was an act of discrimination. It is conceded by the Applicant that showing him with his arm in a sling per se is not an act of discrimination. The discrimination is that he is not shown in addition carrying a work related item such as a clipboard or within a work related environment.
12. In paragraph 25 the Tribunal considered whether or not a radio could have been depicted with him and they went on to find that there were no obvious links to the Applicant. However in paragraph 26 they then did not ask themselves the question as to whether the failure to depict him with a work related item, thereby highlighting his disability amounted to an act of discrimination. It is that issue that we believe should be argued at a full hearing in the light of the findings of the Tribunal.
13. Finally on the issue of constructive dismissal we see no grounds for letting this issue go forward even if the Tribunal were wrong in their findings in relation to discrimination arising out of the depiction of a model. It was not argued that the act of giving him that model even it was an act of discrimination would by itself amount to a sufficient fundamental breach of the duty of trust and confidence that would entitle him effectively to resign. The Applicant alleged in his letter in January that a series of acts which led up to his resignation entitled him to say that mutual trust and confidence has completely broken down.
14. However, those matters were fully examined in paragraphs 28 onward of the decision. We do not propose to go into them details. We are satisfied that the Tribunal considered these items, made findings of fact and accordingly we would see no grounds for letting that matter proceed to a full hearing. We apologise for the unusual length of this preliminary judgment. We think it appropriate bearing in mind the limited grounds on which we are allowing to proceed.