United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS RACHEL CRASNOW (of Counsel) Messrs Thompson Solicitors Congress House Great Russell Street London WC1B 3LW
For the Respondent	MR JEREMY HALL (of Counsel) Messrs Ward Gethin Solicitors 8-12 Tuesday Market Place King's Lynn Norfolk PE30 1JT


 


JUDGE PETER CLARK

1. This is an appeal by Mr Whiley the Applicant before an Employment Tribunal sitting at Norwich under the chairmanship of Mr David Crome against that Tribunal's decision, promulgated with what are described as summary/extended reasons on 28 September 2001, dismissing his complaint of disability discrimination brought against his former employer, the Respondent, Christopher Clark Workshops Ltd. A further complaint of unfair dismissal was upheld.

Background

2. The Applicant commenced employment with the Respondent on 16 July 1995. He was a sprayer in the furniture workshop, the Respondent being a manufacturer of furniture. He was required to engage in frequent heavy lifting of the product.
3. In June 2000, he suffered injury to his back. He experienced pain at work, which he reported to the General Manager, Mr King. The Tribunal record the Applicant's evidence that he asked for assistance which was usually given, although sometimes no help was available to lift furniture that he was spraying.
4. On 6 September 2000, he found it impossible to carry on at work and he was certified sick by his general practitioner. He remained off work and on the 23 October a diagnosis of PID (prolapsed intervertebral disc) appeared on a medical certificate. Previously his condition had been described as sciatica and later back pain. At that stage the Respondent formed the view that the Applicant could no longer continue in employment. He had reported weekly to Mr King by telephone and the latter had formed the picture that the Applicant spent most of the time in a prone position.
5. At the request of Mr Clark, the Managing Director, Mr King, with the Applicant's consent, spoke to his G.P. The medical notes state that the doctor explained that it may be up to another 3 months before the Applicant will be fit enough for work. The message relayed by Mr King to Mr Clark was that he might be unfit for 3-6 months, possibly longer and possibly would not be able to work again. The Tribunal found that Mr King had inaccurately reported the GP's opinion to Mr Clark.
6. Based on the information received from Mr King, Mr Clark decided to dismiss the Applicant and did so by letter, dated 2 November, to take effect the next day. He did not first speak to the Applicant.
7. Initially the Applicant launched an internal appeal against that decision. However, on advice from his Trade Union, the Applicant withdrew his appeal and instead issued Employment Tribunal proceedings complaining of unfair dismissal only. Subsequently, it seems at the suggestion of this Chairman, the proceedings were amended to add a complaint of disability discrimination.
8. The Tribunal Decision.

On those facts the Tribunal reached the following conclusions:

Unfair Dismissal

The reason for dismissal related to the Applicant's capability, a potentially fair reason for dismissal. However, the dismissal was procedurally unfair: whilst there was some medical evidence before the Respondent, the Tribunal found that a reasonable employer would have discussed the matter with the employee. There was no consultation in this case and that failure rendered the dismissal unfair.

9. Disability Discrimination

The Applicant put his case on discrimination, in two ways.

(a) that in dismissing him the Respondent treated him less favourably than he treated or would treat others who were not disabled. Disability Discrimination Act, (DDA) Section (1)(a)

(b) the Respondent failed to make reasonable adjustments required by Section 6 DDA contrary to section 5(2) of the Act.

On this part of the complaint the Tribunal's reasoning was as follows:

(i) The Applicant was suffering from a physical impairment, a degenerative condition of his back; it had a substantial adverse effect on his ability to carry out normal day to day activities; it was long term in that it was likely to and had in fact lasted for 12 months. He was disabled. (Reasons paragraph 10).

(ii) He was dismissed for a reason related to his disability. We infer that the Tribunal found prima facie unlawful discrimination under section 5(1)(a), because they rejected this part of the claim on the basis that the Respondent could justify that prima facie discriminatory act of dismissal under section 5(1)(b). The sole reason for finding that the Respondent had made out the defence of justification was that it did not and could not have known at the time of the dismissal that the Applicant would remain disabled for a period of 12 months.

(iii) The complaint under section 5(2) was rejected on the basis that the Respondent did not know and could not have known that the Appellant had a disability and was at a substantial disadvantage in comparison with able bodied employees, section 6(6).

Accordingly the complaint of disability discrimination was dismissed in its entirety.

10. Remedies

Having delivered ex tempore the decision of the Tribunal with reasons substantially reproduced in its written decision, the Chairman permitted the parties an opportunity to discuss settlement. Paragraph 14 of the written reasons records: "the parties returned to inform the Tribunal that the case is settled on payment of the sum of £2,000. Accordingly, the Tribunal orders that the case is adjourned generally on terms agreed between the parties or until further order".

11. The Appeal

Preliminary Issue

The Respondent takes a preliminary point that the substantive appeal should not be entertained because the whole case has been compromised. In addition to paragraph 14 of the Tribunal reasons, we have short affidavit evidence from the respective advocates below, Mr Kent, a full time trade union official for the Applicant and Mr Sheerin, a solicitor for the Respondent. Neither was called to give evidence because there is no factual issue between their respective accounts of the negotiations leading to the Respondent agreeing to pay the sum of £2,000 to the Applicant. It comes to this; Mr Kent did not mention the possibility of an appeal against the Tribunal decision to dismiss the DDA claim; he did not expressly reserve his position; in that respect. Mr Sheerin did not elicit express agreement that the payment was in full and final satisfaction of all claims arising out of the Applicant's employment and its termination, including both the unfair dismissal and DDA claims. Nothing was reduced to writing and signed by the respective representatives. The settlement was concluded by a handshake.

12. It would have been far better if the precise terms of the agreement had been spelt out and reduced to writing; but they were not and we are left to construe the objective intentions of the parties from the surrounding circumstances.
13. The rival contentions advanced by Counsel are these. Ms Crasnow submits that all that was to be settled by the payment was the outstanding remedy for unfair dismissal; Mr Hall that what was being bought off by the payment of £2,000 was any further litigation, including any potential appeal. We have concluded that Ms Crasnow is correct. The stage had been reached where the DDA claim had been dismissed but the unfair dismissal claim had succeeded on the basis of procedural unfairness. All that remained for the Employment Tribunal was to determine the issue of remedy for unfair dismissal. It was that outstanding issue only, in our judgment, which fell to be resolved by the payment of £2000, in the absence of clear words, showing that the payment was in full and final settlement of all claims. The reference by the Tribunal at paragraph 14 to, "the case is settled on payment of the sum of £2000", begs the question as to whether that related to the outstanding issue before the Tribunal or the whole of the case, including the failed DDA complaint. Our view is that it was the former. In these circumstances we ruled that the Applicant was not barred from pursuing this appeal.
14. Disability Discrimination

Section 5 (1) Discrimination

Given the Tribunal's findings, which are not appealed by the Respondent, first that the Applicant was disabled and secondly, as Mr Hall accepts, the implicit finding of prima facie discrimination under section 5(1)(a), the first line of attack by Ms Crasnow relates to the Tribunal's finding that the Respondent had justified that prima-facie discrimination under section 5(1)(b) on the sole ground that the Respondent did not know at the time of dismissal and could not had known that the impairment that the Applicant was experiencing was long term.

15. There has been some debate in the cases as to whether an employer, who is unaware that an employee is disabled within the meaning of the Act prior to dismissal, can raise the defence of justification under section 5(1)(b). That debate has now been resolved; he can. See Callaghan v Glasgow City Council [2001] RLR724, paragraph 11, per Lord Johnston, correcting an impression to the contrary which he gave in Quinn v Schwarzkopf Ltd [2001] RLR67. The effect of Quinn in the EAT has since been reversed by the Inner House of the Court of Session in that same case. See: [2002] 1RLR 602.
16. Conversely, the employer's state of knowledge may be a relevant factor in determining the issue of justification under section 5(1)(b). See Heinz v Kendrick [2000] 1RLR 144, paragraph 27, per Lindsay P.
17. What is absolutely clear to us, as Ms Crasnow submits, is that the employer's lack of knowledge of the fact of the employee's disability at the time of dismissal is not, of itself, determinative of the justification issue in favour of the Respondent. For the Tribunal to approach that issue in this way, as in our view they plainly did, amounts to an error of law. Without in any way conceding the point, Mr Hall was hard pressed to argue to the contrary.
18. Section 5(2) Discrimination

The Tribunal dismissed this part of the discrimination claim again on a single point.

19. Section 5(2) is predicated upon a breach by the employer of his duty to make reasonable adjustments under section 6. Section 6(6) provides: so far as is material,

"Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know -

(a)……

(b) in any case that, that person has a disability and is likely to be affected in the way mentioned in subsection (1)."

The Tribunal's conclusions on the section 5(2) claim are set out shortly at paragraph 13 of their extended reasons thus:

"There has been evidence and argument on the questions of adjustments, in so far of the quite separate area of discrimination by reasons of failure to comply with the section 6 duties is concerned, we are satisfied that the employer can take refuge again in sub-paragraph 6 of that section, for the reasons that are obvious in this decision."

The reasons that are obvious must, we-infer, be a reference to the observation, at both paragraphs 11 and 12, that although, at the date of hearing (11 September 2001), it was clear that the Applicant's conditions was long term, the Respondent could not have known that and did not know it at the time, by which we infer for the purposes of section 5(2), during the employment which was terminated on the 3 November 2000.

20. Ms Crasnow submits that, in relation to section 6(6), the Tribunal have failed to ask themselves the correct statutory question; could the employer not have been reasonably expected to know:

(a) that the Appellant was disabled and

(b) that he was at a substantial disadvantage for the purposes of section 6(1).

It is common ground that the Respondent did not have actual knowledge of the Applicant's disability as at the date of dismissal or earlier.

21. In response, Mr Hall submits that, although not using the statutory wording, the Tribunal has effectively made the necessary finding by concluding that the Respondent could not have known of the Applicant's disability. We pause to observe that the Tribunal did not then go on to consider the section 6(1) knowledge question.
22. We think that the answer to this issue lies not merely in semantics but in the substance of the Tribunal's findings. They found, for the purposes of section 1 DDA, that the Applicant was, at the relevant date, which is the date of dismissal, likely to suffer the relevant effects for 12 months. That finding is arguably inconsistent with a finding that the respondent could not reasonably be expected to know that the Applicant was disabled in that sense. In any event, what is missing from their reasoning is an analysis of the extent to which it was reasonable for the Respondent to obtain its own medical evidence and secondly whether, on their finding at paragraph 7 as to what Mr King reported to Mr Clark was the Applicant's GP's prognosis, it could reasonably be expected to conclude that there was a likelihood that the effects would continue for 12 months or more.
23. It is in these circumstances that we are not persuaded by Mr Hall that the Tribunal's conclusion as to section 6(6) knowledge should stand.
24. Conclusion

Having found 2 material errors of law it would normally follow that this appeal ought to be allowed and the DDA case remitted to a fresh Tribunal for rehearing on the issues of justification under section 5(1)(b) and possible breach of section 5(2). However, Mr Hall makes 2 further submissions in support of the Tribunal's conclusion that the DDA claim wholly fails.

25. First, he contends that in view of the Tribunal's findings on the question of unfair dismissal their conclusion on the DDA claim was plainly and unarguably right, notwithstanding the errors of law which we have found. He points to the similarity in the tests for justification under section S(1)(b) and 5(2)(b) DDA, and the range of reasonable responses test in respect of section 98(4) of the Employment Rights Act 1996, identified by the Court of Appeal in Jones v The Post Office [2001] IRLR 384. See particularly Lord Justice Pill, paragraph 28 and Lady Justice Arden paragraph 41. He also referred to commentary on the similarities between capability unfair dismissal and disability discrimination cases in Harvey on Industrial Relations and Employment Law Volume 1 D1 paragraphs 1191-1200.
26. Whilst we accept that there is a degree of overlap, we also accept Ms Crasnow's submission that the statutory scheme of the Employment Rights Act and the DDA are sufficiently different for us to say that the Dobie v Burns test is not satisfied in this case.
27. Secondly, he submits that even if we cannot go that far, nevertheless the principle of proportionality, now contained in the latest EAT Practice Direction issued by Burton P, allows us to say that no purpose would be served in putting the parties to the expense of a remitted hearing at which the Applicant is unlikely to improve his position.
28. We reject that submission. The outcome on a remitted hearing is far from certain; the parties are entitled to have their dispute resolved according to law. That is what must happen at the re-hearing of the DDA case. Accordingly we shall allow the appeal and order remission to a fresh Tribunal for the purposes identified above.