United Kingdom Employment Appeal Tribunal

You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Matinpour v Rotherham Metropolitan Borough Council (Unfair Dismissal : no sub-topic) [2011] UKEAT 0406_11_2811 (28 November 2011)
URL: http://www.bailii.org/uk/cases/UKEAT/2011/0406_11_2811.html
Cite as: [2011] UKEAT 0406_11_2811, [2011] UKEAT 406_11_2811

[New search] [Printable RTF version] [Help]

Appeal No. UKEAT/0406/11/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 28 November 2011

Before

HIS HONOUR JUDGE BIRTLES

BARONESS DRAKE OF SHENE

MR M WORTHINGTON

MR M MATINPOUR APPELLANT

ROTHERHAM METROPOLITAN BOROUGH COUNCIL RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant

MR KEVIN McNERNEY

(of Counsel)

Instructed by:

Bhayani Bracewell

Fountain Precinct

Balm Green

Sheffield

S1 2JA

For the Respondent

MR DAVID CALVERT

(of Counsel)

Instructed by:

Rotherham MBC

Legal Services

Council Offices

Doncaster Gate

Doncaster Road

Rotherham

S65 1DJ

SUMMARY

UNFAIR DISMISSAL

DISABILITY DISCRIMINATION

The Employment Tribunal misdirected itself as to the correct tests in law it had to apply for (a) direct disability discrimination (b) reasonable adjustments. Also a failure to consider the reasonableness of dismissal. Case remitted to same Employment Tribunal to reconsider its findings in the light of this Judgment.

HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from an Employment Tribunal sitting in Sheffield in March 2011. The Claimant’s claim of race discrimination was dismissed on withdrawal and the Tribunal dismissed claims of (a) unfair dismissal; (b) direct disability discrimination contrary to s.3A(5) of the Disability Discrimination Act 1995 (as amended); (c) disability related discrimination contrary to s.3A(1) of the 1995 Act; and (d) failure to make reasonable adjustments contrary to s.4A of the 1995 Act.

2. The Claimant, Mr Matinpour, appeals against that decision. He is represented by Mr Kevin McNerney of counsel, as he was below, and the Respondent is represented by Mr David Calvert of counsel, as it was below. We are grateful to both counsel for their written and oral submissions.

The factual background

3. The Tribunal made substantial and detailed findings of fact in its Judgment at paragraphs 21-77. In summary, Mr Matinpour began working for Rotherham Metropolitan Borough Council in May 1990 as a technician in the Council’s Highways and Traffic Group, within its Streetpride Service Department. He was well qualified for his role. During his employment, Mr Matinpour applied for a number of promotions within the Council but was unsuccessful. This was a source of grievance.

4. A second source of grievance was an incident involving a Mr Andy Sealey, another employee of the Respondent. One particular incident took place on 14 November 2008, when Mr Sealey was alleged to have openly mocked Mr Matinpour in the Respondent’s offices. This incident caused a breakdown in Mr Matinpour’s health and he self-certified for a period before seeing his General Practitioner on 8 December 2008, who signed him off work as unfit due to work-related stress. Mr Matinpour never returned to work prior to his dismissal.

5. The Tribunal go on to deal with the grievance procedure which Mr Matinpour exercised. There was a grievance hearing on 2 April 2009. That rejected his grievance. There was an appeal on 22 June 2009, which appeal was rejected, and there was a second-stage appeal on 1 December 2009, before elected members which also rejected Mr Matinpour’s grievance.

6. We turn to the sickness absence. The Respondent kept in regular touch with Mr Matinpour. Initially, there were monthly meetings between Mr Matinpour and two of his managers, at which the sole topic of conversation appeared to be the Respondent’s efforts to get Mr Matinpour back to work. By April 2009, Mr Matinpour had been absent from work for approximately six months. He was referred to the Department of Occupational Health connected to Rotherham District General Hospital.

7. The first report of Dr Jackie Senior is dated 8 May 2009. She said that Mr Matinpour was not then well enough to return to work and she was unable to give any advice about a possible date of return with any accuracy. She suggested that once Mr Matinpour had improved, a phased return to work may be suitable but he was not suitable for alternative duties. Dr Senior noted in her first report that no workplace adjustments were required.

8. On 5 June 2009, managers met Mr Matinpour to discuss the medical report. He attended the meeting with a union representative and advised he was happy with the report and that there seemed to be some improvement in how he was feeling. Between that meeting on 5 June 2009 and a further meeting on 19 October 2009, there were no further face-to-face meetings, but a Mr Bufton kept in telephone contact on a fortnightly basis. Mr Matinpour’s occupational sick pay ceased on 9 November 2009. Mr Matinpour was again referred to Dr Senior and she reported by a letter of 22 January 2010. The letter is at appeal bundle pages 44-45. In the third paragraph of her report, Dr Senior stated this:

“He does still feel aggrieved regarding work issues and perceives that he has been passed over for promotion. I would therefore suggest that a mediation meeting with management prior to return to work may be helpful.”

9. Dr Senior went on to state that Mr Matinpour probably was a disabled person within the meaning of the 1995 Act. She went on to say this:

“A reasonable adjustment may be to consider a phased return to work over an agreed period, on reduced hours and days attending work. In addition consideration of his sickness absence triggers may be thought to be a reasonable adjustment.

He may be able to undertake the phased return to work in the near future after the mediation meeting.”

10. The Tribunal in paragraph 52 say this:

“52. On the balance of probabilities, we find that Dr Senior’s letter is indicative of her belief that a mediation regarding the grievances that Mr Matinpour had raised with the employer was a condition precedent for his phased return to work. Mr Matinpour attended a meeting with Messrs Bufton and Hutson [two of his managers] on 28 January 2010. He was not accompanied [on this occasion] by a trade union representative.”

11. For the first time there are some notes. They appear at appeal bundle page 46. The critical point is this. The notes says: “Asked when he may return to work - said it could be a couple of months”, and at the bottom, “Agreed to meet in two weeks [unintelligible] a decision would be made either to set up mediation, agree a termination or to put on notice.” The Tribunal at paragraph 54 say this:

“54. We prefer the evidence of the respondent on the intonation of Mr Matinpour’s response. The fact that he said it could be “a couple of months” indicates that he was not giving any firm indication of when he was going to return, only that it could be a period of a couple of months.”

12. The Tribunal record, and find as a fact, that Mr Matinpour was advised on 28 January 2010 that his employment could end when the parties next met. Following the meeting on 28 January, those present on the management side sought advice from the Head of Department. There was discussion amongst management. The Tribunal at paragraph 64 say this:

“64. We accept Mr Bufton’s evidence that he discussed the potential phased return of Mr Matinpour with Mr Phillips. We do not find, however, that Mr Bufton ever asked Mr Philips if the Department could do without him. We find, however, that whether or not the Department could do without Mr Matinpour was irrelevant to the decision to dismiss. The decision to dismiss was based on Mr Matinpour not being in a position to return to work in the foreseeable future and thereby his employment being terminated for reason of capability from the respondent’s point of view.”

13. The Tribunal also found that the meeting on 28 January explained to Mr Matinpour what mediation was, and that he expressed no desire to engage in it, although by the same token he did not reject it either. A further meeting took place on 24 February 2010. Mr Matinpour attended with his trade union representative, and Mr Matinpour was told that his employment was terminated on notice. The dismissal letter is at appeal bundle pages 47-48. The critical paragraph is at page 47. It says this:

“As there is no prospect of a return to work in the foreseeable future and after reviewing alternative opportunities or modifications that may have been possible, it was decided that, unfortunately, your employment be terminated on the grounds of capability.”

The Employment Tribunal’s analysis of the issues

14. These appear at paragraphs 3-13 of the Judgment. In both sections, that dealing with unfair dismissal (paragraph 3) and that dealing with disability discrimination (paragraphs 5-13), the Employment Tribunal refer to the fact that the parties discuss the issues relating to those claims and agree that the relevant issues were as set out in the Judgment. Both counsel this morning have told us that there was discussion as to the issues, but it was of a very non-specific or non-detailed form and certainly not in a form in which it appears in the Tribunal’s Reasons.

15. We deal first with unfair dismissal. Paragraph 3 says this:

“3. The parties discussed the issues relating to the unfair dismissal claim and agreed that the relevant issues were:-

3.1 The claimant had the right to make a claim of unfair dismissal.

3.2 The claimant had not lost the right to bring his claim.

3.3 The respondent admitted dismissing the claimant.

3.4 It would therefore be for the respondent to show the reason for dismissal. The burden of proof was upon it. The respondent stated that the reason for dismissal was capability. The claimant submitted that the principal reason was disability discrimination.

3.5 The Tribunal would have to determine whether the dismissal was procedurally fair.

3.6 The Tribunal would then apply the test contained in Section 98(4) Employment Rights Act 1996 as to whether the dismissal is fair or unfair (having regard to the reason shown by the respondent) which depends on whether, in the circumstances (including the size and administrative resources of the respondent’s undertaking) it acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the claimant, which question shall be determined in accordance with equity and the substantial merits of the case.

3.7 If the Tribunal found in favour of the claimant’s unfair dismissal point, the respondent would be raising the applicability of the case Polkey v A E Dayton Services Ltd [1988] ICR 142.

3.8 The respondent would probably not be asking the Tribunal to reduce any compensation for contributory fault.

3.9 Mr McNerney confirmed the claimant was seeking compensation as a remedy.”

16. Both counsel agree this morning that that is a correct statement of the issues which the Tribunal had to decide. The Tribunal then turned to disability discrimination and said this:

“5. The Tribunal discussed the issues with the parties and determined the following issues:-

5.1 The respondent accepted that the claimant is a disabled person within the meaning of the Disability Discrimination Act 1995.

5.2 The parties agreed that the jurisdiction of the Tribunal was determined by the Disability Discrimination Act 1995.

5.3 The act of direct discrimination complained of was the claimant’s dismissal.

5.4 In respect of the direct discrimination claim, the claimant would have to show facts that he had been treated less favourably than a real or hypothetical comparator from which the Tribunal could infer that the reason for less favourable treatment was the claimant’s disability.

5.5 If the claimant proved such facts and the Tribunal drew such inferences, the respondent would have to prove that it did not treat the claimant less favourably in any sense whatsoever on the grounds of his disability.

5.6 The claimant’s claim of disability related discrimination contrary to Section 3A(1) Disability Discrimination Act 1995 related to less favourable treatment of dismissal, and the alleged reason was because of the disability related actual and expected absences.

5.7 For this claim, the Tribunal would have to find a provision, criterion or practice was applied by the respondent, which placed the claimant at a substantial disadvantage in comparison with non-disabled persons.

5.8 The Tribunal would then have to find that the employer had the required knowledge that the claimant is a disabled person. This was admitted by the respondent.

5.9 The Tribunal would then go on to determine whether the respondent had taken such steps as was reasonable in all the circumstances in order to prevent the provision, criterion or practice having that disadvantageous effect.

6. The claimant’s third claim was a failure by the respondent to make reasonable adjustments contrary to Section 4A Disability Discrimination Act 1995.

7. The provisions, criteria or practices which it was alleged placed the claimant at a substantial disadvantage were:

7.1 Requiring the claimant to be fit to return to work.

7.2 Being unfit to return to work by Dr Senior, the Occupational Health expert as an agent of the respondent in a letter dated 8 May 2009 and again, implicitly by a letter dated 22 January 2010.

7.3 Not allowing the claimant to remain on sick leave pending mediation taking place.

8. It was alleged that the following reasonable adjustments were identified by Dr Senior in her letter of 22 January 2010, but not carried out by the respondent:-

8.1 A mediation meeting prior to a return to work.

8.2 A phased return to work.

8.3 The respondent identifying the cause of the claimant’s sickness absence.

9. The Tribunal would have to determine whether, for a reason which relates to the claimant’s disability, the respondent treated him less favourably than the respondent treated or would treat others to whom that reason does not apply or would not apply.

10. If the claimant was to show this, then the respondent would have to show that the reason for the treatment is both material to the circumstances of the case and substantial.

11. The Tribunal would then determine if the respondent was under a duty to make reasonable adjustments.

12. If it was, did the respondent fail to comply with that duty.

13. If so, would the treatment have been justified even if the respondent had complied with the duty.”

The relevant statutory provision

17. In respect of unfair dismissal, s.98(4) says this:

“98 (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

18. The relevant provisions of the Disability Discrimination Act are first s.3A, the meaning of discrimination.

“(1) For the purposes of this Part, a person discriminates against a disabled person if -

(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats, or would treat others, to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

(3) Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

(5) A person directly discriminates against a disabled person if, on the ground of the disabled persons disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability, whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty.”

19. S.4A says this:

“4A(1) Where

(a) a provision, criterion or practice applied by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

20. Subsection (2) goes on to define who the disabled person concerned is. Nothing turns on that in this case. It was Mr Matinpour. Subsection (3) deals with a lack of knowledge of the employer than an employee is a disabled person. Again, nothing turns on that in this case, because the employer accepted that Mr Matinpour did become disabled in the course of his sick leave.

The Employment Tribunal conclusions

21. First, disability discrimination. The Tribunal dealt with this at length in paragraphs 78-102. The relevant passages seem to be, to us, in paragraph 78-83. The Tribunal say this:

“78. Mr Matinpour referred to no direct or hypothetical comparators in his evidence in chief.

79. In his submissions to the Tribunal, Mr McNerney could only refer to Mr Bufton who, in response to cross-examination question, said that a member of staff with the same level of absences arising out of a broken leg might not have been dismissed.

80. My note of the evidence was that Mr McNerney asked Mr Bufton that if someone with a broken leg with fourteen months’ absence had come to him on 24 February 2010 and said they would be back in two months; Mr Bufton would not have dismissed that person. Mr Bufton’s answer was that he did not know. It was a possibility, but in Mr Matinpour’s case, the respondent had no evidence a return was imminent. We have found as a fact, however, that Mr Matinpour did not indicate that he definitely would be returning in two months.

81. On that basis, the Tribunal has to find that the claimant has not proved facts from [which] the Tribunal could infer that the claimant was treated less favourably than a hypothetical comparator or from which the Tribunal could conclude that any such treatment was on the grounds of Mr Matinpour’s disability.

82. He therefore falls at the first hurdle in respect of the direct discrimination complaint. We do not therefore have to consider the respondent’s defence to such an allegation, as the burden of proof has not switched.

83. By the same token, the claimant has not shown that for a reason that relates to his disability the respondent treated him less favourably than it would treat others to whom that reason did not apply. Again, the claimant falls at the first hurdle and the Tribunal did not consider any of the other issues relating to the disability related discrimination.”

22. The Tribunal go on in this section to deal with the Claimant’s further particulars of claim that the Respondent had failed to make reasonable adjustments. Those were:

“84.1 Requiring the claimant to be fit to return to work

84.2 Being declared unfit to return to work by Dr Senior and again implicitly by letter dated 22 January 2010

84.3 Not allowing the claimant to remain on sick leave pending mediation taking place.”

23. The Tribunal say this about those three alleged reasonable adjustments:

“85. We are not at all sure that the respondent applied the provision, criterion or practice requiring the claimant to be fit to return to work.

86. We were also unconvinced that the respondent applied the provision, criterion or practice that Dr Senior, as agent of the respondent, declared the claimant unfit for work on 8 May 2009 and 22 January 2010. Dr Senior was not the agent of the respondent.

87. The respondent did, however, apply the provision, criterion or practice of not allowing the claimant to remain on sick leave pending mediation.

88. Despite our reservations about the first two alleged provisions, criteria or practices, we find as a matter of fact that none of the three provisions, criteria or practices placed the claimant at a substantial disadvantage in comparison with non-disabled persons.

89. There was no evidence before us that a non-disabled person would have been treated at a substantial disadvantage (the corollary of the claimant being treated at a substantial disadvantage) by being required to be fit to return to work.

90. On our findings of fact, there is no evidence that being declared fit to return to work by Dr Senior placed Mr Matinpour at a substantial disadvantage in comparison with non-disabled persons.

91. Similarly, Mr Matinpour was not placed at a substantial disadvantage in comparison with non-disabled persons by the respondent not allowing him to remain on sick leave pending mediation taking place. Our findings of fact show that mediation would have been futile in this case. Dr Senior had set it out as a pre-requisite for Mr Matinpour’s return to work. Mr Matinpour was not prepared to mediate unless it was a full adjudication of his grievances and it was reasonable of the respondent to reject the suggestion of mediation, as it appears to have come from the Occupational Health doctor, and was not embraced by Mr Matinpour himself.”

24. Under the section headed “Unfair Dismissal”, the Tribunal say this:

“103. The Tribunal finds the reason for the claimant’s dismissal to be capability. That is one of the potentially fair grounds for dismissal, and we find that although there were one or two minor blemishes in the way that the respondent proceeded with the dismissal of the claimant as referred to above, there was no procedural fault that would lead to a decision of unfair dismissal.

104. We find that in determining the question of whether the dismissal is unfair, having regard to the reason of capability shown by the employer, that in the circumstances, the respondent acted reasonably in treating it as a sufficient reason for dismissal of the employee as determined in accordance with equity and the substantial merits of the case.

105. Equity and the substantial merits of the case are important, as we find that in the absence of any act of discrimination by the respondent, in the circumstances of this case, it would be inequitable to find that the dismissal was unfair.”

The Notice of Appeal

25. The Notice of Appeal is at appeal bundle pages 16-21. It sets out four grounds of appeal. We take each ground of appeal in turn.

Ground 1

26. The Employment Tribunal erred in applying the test for disability related discrimination under s.3A(1) of the Disability Discrimination Act 1995. The Employment Tribunal set out what they believe was their task in assessing this claim at paragraph 5.6 and 5.7 of their decision. They refer to the need to find a provision, criterion or practice (PCP) that placed the Appellant at a substantial disadvantage in comparison with a non-disabled person. Disability related discrimination does not require the presence of a PCP or the existence of substantial disadvantage. In his written and oral submissions, Mr McNerney essentially repeats that ground of appeal.

27. Mr Calvert agrees that the Employment Tribunal is in error in its analysis in paragraphs 5.6 and 5.7, but submits that later on in its Judgment at paragraph 83, which we have set out above, the Employment Tribunal got it right and there was no need, in any event, to go on to the issue of justification, because the Tribunal found that the Appellant fell at the first hurdle and the burden of proof did not shift.

28. The concession is important. We have been troubled in this case by the faulty setting out of the issues which the Tribunal indicated that it required to examine before determining the case. We look at that against the findings of the Tribunal and, while there is force in Mr Calvert’s submission, we are not able to accept it. It seems to us that a useful analogy is a person going into a large building and taking the wrong corridor, but arriving at the right exit.

29. The difficulty is that we do not know the reasoning process which takes the Employment Tribunal in this case from the wrong analysis of the issues it had to determine in respect of direct disability discrimination and reaching its conclusion in paragraph 83. We therefore allow the appeal on ground 1.

Ground 2

30. Ground 2 is that the Employment Tribunal erred in applying the legal test in relation to the duty to make reasonable adjustments under s.4A of the Disability Discrimination Act 1995 (as amended). The Tribunal set out what they believed to be their task in assessing this particular head of claim at paragraphs 6-13 of their Reasons. The Appellant argues that the Employment Tribunal imports into the test under s.4A, the following requirements which are not part of the legal test:

(1) The need for less favourable treatment (paragraph 9).

(2) The need for the Respondent’s treatment of the Appellant to be both material and substantial (paragraph 10).

(3) The possibility that a failure to comply with the duty to make reasonable adjustments could still be justified (paragraphs 12 and 13).

31. In answer to that, Mr Calvert submits that this is a detailed Judgment and, in particular, there is no appeal against the Tribunal’s finding of fact in paragraph 90 that there was no evidence that being declared fit to return to work by Dr Senior, placed Mr Matinpour at a substantial disadvantage in comparison with non-disabled persons.

32. Mr McNerney also challenged the Tribunal’s findings in respect of the PCPs that he put forward to the Tribunal Judgment at paragraph 84-91. To those submissions, Mr Calvert replies by pointing out that the Notice of Appeal does not in fact contain any challenge to the Tribunal’s findings in respect of those three PCPs that it considered.

33. We agree with the first part of Mr McNerney’s submissions. The Tribunal did err in paragraphs 6-13 of its Judgment, in the way that the Notice of Appeal indicates, by importing three requirements which are not part of the statutory legal test under s.4A of the 1995 Act (as amended). Those were:

(1) The need for less favourable treatment (paragraph 9).

(2) The need for the Respondent’s treatment of the Appellant to be both material and substantial (paragraph 10).

(3) The possibility that a failure to comply with the duty to make reasonable adjustments could still be justified (paragraphs 12 and 13).

34. However, we do not accept Mr McNerney’s submission that ground 2 of the Notice of Appeal can be read to include a challenge to the Tribunal’s findings, in respect of the three reasonable adjustments which were put forward (paragraphs 84-91). It is not our function to squeeze submissions made in a skeleton argument into a Notice of Appeal. The Notice of Appeal is the document this Tribunal considers. On any fair reading of the Notice of Appeal, it does not include a challenge to the failure on the part of the Tribunal in respect of the way it dealt with the three reasonable adjustments referred to.

Ground 3

35. Ground 3 is unfair dismissal. The ground of appeal is that the Employment Tribunal failed to properly determine whether, in all the circumstances, the employer had acted fairly in treating as a sufficient reason for dismissal on 24 February 2010, the Claimant’s continued absence and approximate further absence of two months. We have read paragraphs 103-105 of the Tribunal’s Judgment. That is all there is in respect of unfair dismissal.

36. Mr McNerney submits that there is no consideration of the reasonableness of the Respondent’s actions when presented with an employee who stated that he could return to work within two months of the 28 January 2010 meeting. There is no reference to the band of reasonable responses test. Instead, at paragraph 105, there is the suggestion that because there was no discrimination, it follows there was no unfairness. Mr McNerney submits that the coupling of the absence of discrimination with the fairness of the dismissal in this paragraph has led the Employment Tribunal to fail to properly assess the fairness of the dismissal under s.98(4) of the Employment Rights Act 1996.

37. In support of that submission, Mr McNerney has attached to his Skeleton Argument part of his closing submissions to the Employment Tribunal. At paragraph 8 of those written submissions, put forward ten reasons why the dismissal was unfair and, in our view, they go to the central issue of fairness: the reasonableness of the dismissal on the facts as found by the Tribunal in this case. There is simply no reference to them in the Tribunal’s Judgment in paragraphs 103-105.

38. In addition, although it is not a specific ground of appeal, we have great difficulty in understanding what paragraph 105 of the Judgment means. Simply to say, it would be inequitable to find that the dismissal was unfair on the facts of the case, does not assist us, and we suspect did not assist Mr Matinpour or his legal advisers, in understanding why the claim for unfair dismissal was dismissed. We allow the appeal under ground 3 as well.

Ground 4

39. Ground 4 raises the issue of perversity. It is not necessary to rehearse the law on this (see Yeboah v Crofton [2002] IRLR 638 at paragraphs 95 to 98 per Mummery LJ). Because of our finding in respect of ground 3, it is not necessary for us to make a decision under ground 4 and we therefore dismiss ground 4.

Conclusion

40. We allow the appeal on grounds 1, 2 and 3, and dismiss it on ground 4.

Disposal

41. Mr McNerney argued that we should remit this case to a fresh Tribunal for a full re-hearing. He gave a time estimate of two days. By contrast, Mr Calvert said the case should be remitted to the same Tribunal, because if it was remitted to a fresh Tribunal for a full re-hearing, it might last as long as four or five days. We have had regard to the guidance given by Burton J, then President, in Sinclair Roche & Temperley v Heard [2004] IRLR 763. It is sufficient to rehearse the head note, or part of the head note:

“The factors which are relevant in deciding whether a case should be remitted back to the same Tribunal include proportionality, whether sufficient money is at stake so that the additional cost to both sides of a fresh hearing does not offend, on the ground of proportionality, passage of time: a matter should not be sent back to the same Tribunal if there is a real risk that it would have forgotten about the case, bias or partiality: it would not be appropriate to send the matter back to the same Tribunal, where there was a question of bias or the risk of prejudgment or partiality. Totally flawed decision: it would not ordinarily be appropriate to send the matter back to a Tribunal where the first Hearing was wholly flawed or completely mishandled. Second bite: the Tribunal should only send the matter back if it has confidence that with guidance the Tribunal would be prepared to look fully at further conclusion. Tribunal professionalism: in the absence of clear indicators to the contrary, it should be assumed that the Tribunal is capable of a professional approach to dealing with the matter on remission.”

42. Applying those factors to this case:

(1) Proportionality. In our judgement the additional cost to both sides of a fresh hearing does offend on the ground of proportionality. Mr Matinpour is funding this litigation. He has legal representation. The Respondent is a local authority, so it would have to fund the litigation from its taxpayers.

(2) Passage of time. This hearing took place in March of this year. We do not think that there is a real risk that the Tribunal will have forgotten about the case.

(3) Bias or partiality. Mr McNerney does not suggest that there is a question of bias or the risk of prejudgment or partiality in this case.

(4) Totally flawed decision. We do not think that this is a totally flawed decision. The fact finding is, as both counsel agree, really quite meticulous.

(5) Second bite. In our judgement, this Tribunal would, with the guidance of this Judgment, be prepared to look fully at further matters and thus willing to come to a different conclusion.

(6) Tribunal professionalism. There are no indicators to us, or that have been put before us. We are entitled to assume that the Tribunal is capable of a professional approach to dealing with the matter on remission.

43. In addition, of course, and not referred to by Burton J, the Employment Judge has taken a judicial oath to act without fear or favour between the parties. For these reasons we are going to remit this case to the same Tribunal to reconsider its decision in the light of this Judgment, which will be transcribed. The parties will, of course, be at liberty to make further written or oral submissions to the Tribunal.