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United Kingdom Employment Appeal Tribunal
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Oliver v The Ultimate Solution Partnership Ltd (Disability Discrimination) [2011] UKEAT 0142_11_1608 (16 August 2011)
URL: http://www.bailii.org/uk/cases/UKEAT/2011/0142_11_1608.html
Cite as:
[2011] UKEAT 142_11_1608,
[2011] UKEAT 0142_11_1608
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Appeal No. UKEAT/0142/11/JOJ
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At
the Tribunal
On
16 August 2011
Before
HIS
HONOUR JUDGE PUGSLEY
SIR ALASTAIR GRAHAM KBE
MR R LYONS
MRS
N OLIVER APPELLANT
THE
ULTIMATE SOLUTION PARTNERSHIP LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
For the Appellant
|
MR
ANDREW OTCHIE
(Representative)
Free Representation
Unit
6th Floor,
289-293 High Holborn
London
WC1V 7HZ
|
For the Respondent
|
MS SARAH WATSON
(of Counsel)
Instructed by:
Herrington &
Carmichael Solicitors
Market Chambers
3-4 Market Place
Wokingham
RG40 1AL
|
SUMMARY
DISABILITY DISCRIMINATION
The Respondent’s case, as pleaded, was that the Claimant was
guilty of dishonesty. This was never fully adjudicated upon although it seems
this was a matter raised at the Employment Tribunal for determining the issues
of the reason for dismissal, and in particular, whether it was a reason
connected with the employee’s disability; it was vital that the ET make full
findings as to the allegations set out in the ET3.
HIS HONOUR JUDGE PUGSLEY
Introduction
1.
When the Disability Discrimination Act came to fruition
there were widespread concerns that those who were disabled should receive
redress that the earlier Discrimination Act had woefully failed to
provide. The old system of quotas for disabled people was both insulting and
ineffective, but no one, I think, had any illusion about the difficulty of
defining disability. But interesting though these debates are, we are sending
this case back of our own volition, having heard argument from both Mr Otchie,
who is from the Free Representation Unit, and Ms Watson, who is from
Devereux Chambers, because quite simply this decision cannot stand. It offends
our sense of justice and fairness, and if that appears self‑important and
pompous, we apologise. We think that there is a fundamental requirement that
all those who appear before a court know why they have won and why they have
lost. If authority for that trite proposition is necessary, it can be found in
the Judgment of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250.
Discussion
2.
The problem with this case is this: what was the reason for the
dismissal of Mrs Oliver? Perhaps we can do very little, or nothing at
all, to improve the marvellously succinct way in which Bingham LJ put it
in Malcolm. The task of the court is to ascertain the real
reason for the treatment; the reason that operates on the mind of the alleged
discriminator. This may not be the reason given and it may not be the only
reason, but the test is the objective one. Now, in this case when the
Respondents received the originating application, their response was in these
terms in a document drafted by counsel (Devereux Chambers, experienced in
employment law):
“15. The decision to terminate the Claimant’s employment was
made in early September 2007 on the basis of her dishonesty and breach of
trust and confidence.
(1) The Claimant admitted on the telephone when speaking to
Mark Banini that she had been working for her husband whilst she was off on
sick leave and was indeed building his website when she spoke to Mark Banini.
(2) There were also occasions when the office manager rang the
house to find out the current position in relation to sick notes which had not
been supplied that one of the children answered and was told that ‘Mummy had
gone to work on the train.’
(3) There were further occasions when Mark Banini rang to speak
to her where her husband answered and said that she was not in when she clearly
was as she could be heard speaking in the background. […]
(4) Whilst off sick, she was actively seeking a new job. The
Curriculum Vitae of the Claimant was found by a researcher acting for the
Respondent who was checking availability of management consultants since the
Respondent was seeking to recruit more management consultants. The researcher
asked the Claimant why she was looking to move after only 8 months with the
Respondent and she was told the four hour travelling a day was too much for
her. She was asked about her availability for an interview and replied that
she did occasionally work from home and if she had enough notice she could
‘manipulate’ things so she could attend. She was also asked whether she had
any medical issues and she confirmed she had none at all.
(5) If the Claimant was truthful with the researcher then she
had no reason being off work on sick leave.”
3.
This Tribunal decision was promulgated some six months after the
hearing. The Judgment was sent to the parties on 9 February and, Reasons
thereafter having been sought, it was on 13 July this was promulgated.
This case had lasted
1, 2, 3, 11 and 23 December. This Tribunal would
never criticise Employment Tribunals because the decisions are brief, but
really something has gone wrong here. There is no finding at all about the
contention made that the reason for dismissal was dishonesty and breach of the
implied term of trust and confidence. It is, as Sir Alastair Graham pointed
out in argument, mentioned on a sort of sliver basis from time to time, but as
has been pointed out by Mr Lyons, the other industrial member, you do not
leave an allegation like this lying on the table; you decide it.
4.
Neither the Respondent nor the Claimant have had a fair trial. The
Respondent has not heard its reasons adjudicated upon properly; the Claimant
has had this slur put across her at a time when on any view of the matter she
was vulnerable, and it has not been resolved one way or the other. You cannot
begin to assess what the reason was if you do not examine the evidence that was
put before you, and Ms Watson tells us that the evidence was put before
the ET. It is just not in the decision as to what findings the Employment
Tribunal made. There are real issues, and they are ones that the parties have
well prepared in their skeleton arguments, of the extent of those in Malcolm,
which was a housing case. What was the reason for the dismissal? To what
extent can you impute knowledge of disability from surrounding circumstances?
Conclusion
5.
This is a case in which I ought to say we have sympathy for both
parties. It is free to the parties to negotiate issues and discuss things. We
do not think it is free to us to allow this case to be dealt with on a wholly
unrealistic basis, which has ignored the principal contention of the Respondent
in their ET3. Ms Watson may well have put her finger on it - if it was
not disability, it did not really matter what it was, because it was within
12 months of employment, and therefore the Tribunal may not have felt it
necessary to address this issue. We think it is vital to address the issue of
what the reason was when you are deciding whether the reason was disability.
We therefore allow the appeal and send it to a differently constituted
Tribunal. With the best will in the world, in view of what has gone wrong none
of us think that the parties could live with the same Tribunal adjudicating
upon them. Having said that, I am sure we all agree that if they can find a
way of resolving the issue without litigation, so much the better.