United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR F McCOMBIE (of Counsel) Instructed by: Messrs Ashby Cohen Solicitors Ltd 18 Hanover Street London W1S 1 YN
For the Respondent	MR B BURGHER (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 100 Fetter Lane London EC4A 1BN


 


SUMMARY

Unfair Dismissal: Automatically unfair reasons

Disability Discrimination: Direct disability discrimination

Practice And Procedure: Disposal of appeal including remission

S98A(1) ERA. Unreasonable delay in holding internal appeal hearing. Misapplication of S98A(2), reverse Polkey, to breach of statutory DDP. Disability related discrimination cf. direct discrimination. Case remitted to same ET (Sinclair-Roche).


 


HIS HONOUR JUDGE PETER CLARK

1. The parties in this matter, which has been proceeding in the Truro Employment Tribunal are Ms Butt, Claimant, and CAFCAS, Respondent. We shall so describe them. This is an appeal by the Claimant against the reserved judgment of a Tribunal chaired by Mr J G Hollow, promulgated with reasons on 8 May 2007, dismissing her various claims brought against the Respondent. The Notice of Appeal was considered by Elias P at the paper sift stage. As a result of his direction we are concerned only with two aspects of the case. First, ground one, the Tribunal's finding that the Claimant was not automatically unfairly dismissed contrary to section 98A(1) of the Employment Rights Act 1996 (ERA) and, secondly, grounds 6 to 9 concerned with the Tribunal's treatment of her complaint of disability related discrimination.

Background

2. The Tribunal has set out the material findings of fact with, we think, admirable clarity. In summary, the Claimant was employed by the Respondent as a Family Court Advisor (FCA) from 18 December 2002 until her summary dismissal effective on 8 June 2006. It was common ground that she was a disabled person. She suffered from a back condition due to scoliosis.

Unfair dismissal

3. The Claimant put her complaint of unfair dismissal in three alternative ways:

(1) Automatically unfair dismissal by reason of medical incapacity under section 98(4) of the ERA.

(2) Automatically unfair dismissal by reason of her having made protected disclosures contrary to section 103A.

(3) Automatically unfair dismissal contrary to section 98A(1).

The Tribunal rejected each of the three ways in which this part of her claim was put. Our focus is on the third strand of her case, section 98A(1) unfairness.

4. It is clear from the written closing submissions of counsel below, both of whom appear before us today, that the relevant factual issue between the parties was whether the Respondent had delayed unreasonably in holding an internal appeal hearing following the Claimant's dismissal. The Claimant relied on the requirement under paragraph 12 of Schedule 2 to the Employment Act 2002. The Tribunal found (reasons paragraphs 65 to 66) that the Respondent was guilty of unreasonable delay amounting to a breach of the statutory DDP. However, they went on to direct themselves that if the Respondent was able to establish that had there not been unreasonable delay in holding the appeal the result would be the same, then the dismissal may be fair. They so found at paragraph 69.
5. That was a material misdirection in law, as counsel agree in this appeal. It represents a misunderstanding of the President's explanation of the true meaning and effect of section 98A(1) and (2) ERA in Kelly-Madden v Manor Surgery [2007] IRLR 17 to which the Tribunal refer at paragraph 65 of their reasons. In short, the so-called reverse Polkey principle in section 98A(2) applies to procedural deficiencies other than failures in the relevant statutory procedures referred to in section 98A(1). Automatic unfairness under section 98A(1) cannot be cured by invoking section 98A(2). We are content to accept the agreed position between counsel. However, for completeness we referred counsel to my recent judgment in Wilmot v Selvarajan UKEAT/0427/06/RM, 12 October 2007, paragraphs 30 to 50, where the earlier EAT cases on breaches of the paragraph 12 requirement and its effect on the section 98A(1) question are reviewed and followed, and paragraphs 81 to 82 dealing with disposal of appeals on this point. Following Wilmot and the earlier cases, it is clear to us on this Tribunal's findings, to which we have earlier referred, that:

(a) the Tribunal materially misdirected themselves as to the law; and

(b) that on their factual findings as to the Respondent's delay it is unnecessary to remit the case back to the Tribunal for further findings.

In these circumstances we shall reverse the Tribunal's finding and declare that the Claimant's dismissal was automatically unfair under section 98A(1).

6. That is not an end to the matter. In determining remedy for unfair dismissal, a tribunal will need to consider three further questions. First, whether had the Respondent held a timeous appeal hearing, the Claimant would have been fairly dismissed in any event, or if not in any event, what are the chances expressed as a percentage of her retaining her employment. This is a different question from that incorrectly posed by the Tribunal under section 98A(2). There, following Kelly-Madden, the question is whether there is a 51 per cent chance or more that, but for the procedural defect, a fair dismissal would have taken place. The original Polkey question is concerned not with fairness, but with just and equitable loss under section 123(1), requiring a percentage answer. Mr Burgher submitted on paper that it is clear from the Tribunal's findings that they concluded that the chances of a fair dismissal absent procedural unfairness was 100 per cent. We are not satisfied that such a conclusion is inevitable, nor do we propose to utilise the Burns/Barke procedure, as he invited us to do, to refer this question back to the Tribunal for further reasons. We shall deal with disposal of the appeal at the end of this judgment.
7. The second issue is contribution, applicable to both the compensatory and basic awards. The Polkey reduction applies only to the compensatory award. The application of the contributory fault provisions in the event of a finding of automatic unfair dismissal under section 98A(1) in relation to the basic award was considered by the President in Ingram v Bristol Street Parts UKEAT/0601/06/CEA, 23 April 2007, paragraphs 31 to 45. This is the third issue which will arise on the assessment of remedies following our declaration of automatically unfair dismissal under section 98A(1).

Disability discrimination

8. Leaving aside victimisation, unlawful discrimination contrary to the Disability Discrimination Act 1995 (DDA) as amended, may take three forms analysed by Sedley LJ in O'Hanlon v HMRC [2007] IRLR 404, paragraph 93 as follows:

"(a) direct discrimination on the grounds of a person's disability which is not open to justification (section 3A5 and 4)

(b) disability related discrimination which is open to justification (sections 3A(1) and (3))

(c) failure to make reasonable adjustments (sections 4A, 3A(2) and 18B)."

9. In the present case the Claimant brought her claims under (b) and (c) above only and not (a). That was made clear in Mr McCombie's written closing submissions below and appears to have been appreciated by the Tribunal at paragraph 3 of their reasons. Having rejected the claim under (c) above, failure to make reasonable adjustments, see reasons paragraphs 60 to 61, the Tribunal then turned to the remainder of the disability discrimination claim. Paragraph 62 is headed "Was this an act of disability related discrimination?" and begins:

"We bear in mind the provisions of section 3A(5) of the Act."

10. It is thus immediately apparent that rather than considering the Claimant's claim of disability related discrimination under section 3A(1) and (3), they have applied Section 3A(5), which is concerned with the claim of direct discrimination. As a result the Tribunal selected a comparator, an FCA who did not suffer from a back condition, but who worked at home without express permission or designation, reasons paragraph 62, appropriate to a claim of direct discrimination rather than the claim of disability related discrimination which the Claimant was advancing and in respect of which the relevant comparator is different. He or she is a person to whom the reason for treatment does not apply. See Clark v Novacold [1999] IRLR 318. In this respect, in our judgment, the Tribunal also fell into error.

Disposal

11. As to unfair dismissal, having made the declaration under section 98A(1), that aspect of the case must return to a Tribunal, whether the same or a different one we consider below, for a remedy hearing. We repeat the three issues in relation to Polkey, contribution and injustice under s120(1B) to which we referred earlier, which will arise at that remedy stage. As to the claim of disability related discrimination, Mr Burgher submits that on the Tribunal's findings of fact, had they correctly applied the law, the result would inevitably have been the same. The claim would be dismissed. The outcome decided by the Tribunal, notwithstanding this direction in law, was plainly and unarguably right, Dobie v Burns International [1984] IRLR 329.
12. We reject that submission. We do not believe that the outcome was inevitable. In any event, we regard it as preferable, since the matter will return to the same Tribunal, that that Tribunal, as the fact finding Tribunal, should decide the matter afresh, having correctly applied the law. That indication pre-empts our resolution of the issue between counsel as to whether the case returns to the same or a different Tribunal. We prefer Mr Burgher's submissions in favour of the former course.
13. We have been taken to the judgment of Burton P, in Sinclair-Roche & Temperley v Heard [2004] IRLR 763 and, in particular, the applicable principles identified at paragraph 46 of the then President's judgment. We do not doubt the professionalism of the Tribunal chaired by Mr Hollow to reconsider the disability related discrimination question. We are not persuaded by Mr McCombie that the Tribunal will prejudge the remitted hearing. There is no indication of bias or partiality. The Tribunal found the facts as they saw fit, having heard all of the evidence and argument. Their original decision was not totally flawed. It disclosed, we have found, two errors of law. The remaining issues in the case were permissibly decided according to law.
14. Finally, proportionality strongly indicates remission to the same Tribunal. The original hearing took five days; a remitted hearing before the same Tribunal may be disposed of in one day. No further evidence is necessary. It can be dealt with by the submissions of counsel, who should each prepare a skeleton argument in advance of the hearing for the benefit of the Employment Tribunal.
15. Finally, at the remitted hearing we identify three matters of law on the disability related discrimination claim which will arise for consideration by the Tribunal on the facts:

(1) Was the Claimant's dismissal or action short of dismissal amounting to a detriment as pleaded at paragraph 29 of the Particulars of Complaint in the form ET1, for a reason which related to her disability? DDA section 3A1(a). Did it have a significant influence on the decision to dismiss, see Taylor v OCS Group Ltd [2006] IRLR 613, paragraphs 72 to 74, Smith LJ.

(2) In answering that question, the relevant comparator is that identified in s3A(1)(a), not s3A(5). That is a person to whom the disability related reason does not apply.

(3) If less favourable treatment is found under section 3A(1)(a), can the Respondent show that such treatment is justified under section 3A1(b)?

16. On this footing, the appeal is allowed and the matter remitted to the same Employment Tribunal for further consideration.