Appeal No.EAT/131/98	

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 March 1998

Before
THE HONOURABLE MR JUSTICE BELL
MR R N STRAKER
MR D A C LAMBERT

MR J BUTTERFIELD	APPELLANT

RAPIDMARK LTD	RESPONDENT
T/A 3 MV

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS E OVERS
(Of Counsel)
North Islington Law Centre
161 Hornsey Road
London
N7  6DU

	MR JUSTICE BELL:   This is an ex-parte Preliminary Hearing in respect of an appeal by the Applicant employee, John Butterfield, against the majority decision of an Industrial Tribunal entered in the register on 28 October 1997.  The majority decision of the Industrial Tribunal was that the Applicant’s complaint that he suffered unlawful discrimination as a disabled person was not well-founded.  The Appellant has suffered epilepsy for many years.  

	As a result of an opportunity created by family friends, he was employed by the Respondent company from 29 May 1995 but dismissed by it, as the Industrial Tribunal found, in or about February 1997, as a result of a decision made the previous December that his work performance was inadequate.  Among the apparent findings of the Industrial Tribunal there appear to be decisions that the Applicant was dismissed without obtaining information on the effects of his disability; that the Respondent’s reason for dismissing the Applicant was not objectively arrived at; and that the Respondent’s explanation for its actions was not satisfactory.  Epilepsy is a condition which may show frank symptoms.  Equally well, it may have hidden effects, of which the patient himself is not always aware or fully aware.  In those circumstances where the employer had not investigated just what the effects of Mr Butterfield’s epilepsy might be, Mr Butterfield, it seems to us, arguably, might not know what they were.  

	It is arguable that the Tribunal, or at least a majority of the Tribunal, because this was a majority decision, reached a decision against there being unlawful discrimination which no reasonable Tribunal could reach.  We stress that we are only saying at this stage that that is arguable.  There is also an argument that although the Industrial Tribunal’s decision specifically referred to Section 5(1)(a) of the 1995 Act, dealing with less favourable treatment discrimination, it does not refer to Section 5(2)(a) discrimination, dealing with Section 6 failure to make reasonable adjustment in relation to the disabled person, and that the Industrial Tribunal did not deal with that possibility or whether it was the basis of the last allegation in the Applicant’s Originating Application.

	We think that in all the circumstances this appeal merits proceeding to a full hearing on all the grounds which are set out in the Notice of Appeal.