Appeal No.	 EAT/131/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 June 1998
Judgment delivered on 9 September 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MR K M HACK JP

MR J BUTTERFIELD	APPELLANT

RAPIDMARK LTD t/a 3 MV	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS E OVERS
(of Counsel)
North Islington Law Centre
161 Hornsey Road
London
N7 6DU	
For the Respondents	MRS S PONTAC
(of Counsel)
Messrs Calvert Jackson Nokes
Solicitors
77 Weston Street
London Bridge
London
SE1 3RS

	JUDGE PETER CLARK:	This is an appeal by the applicant before the London (South) Industrial Tribunal, Mr Butterfield, against that tribunal’s decision by a majority, promulgated with extended reasons on 28th October 1997, dismissing his complaint of unlawful disability discrimination against his former employer, Rapidmark Ltd t/a 3MV.

The Facts
The appellant commenced employed with the respondent on 29th May 1995. He was then aged 24. From the age of 16 he had suffered from epilepsy. The respondent learned of his condition within two or three weeks of his starting the employment. The tribunal found that he was disabled within the meaning of s.1 of the Disability Discrimination Act 1995. 

	He spent the first 12 months in the General Telesales Group, with special responsibility for soul music. The respondent carried on business in the sale of records to retail outlets on behalf of record companies, its clients. From September 1996 he was given responsibility with a fellow employee, Mr Wicks, for the higher profile dance music list. Up to that time his performance had been characterised as adequate but no more. The effect of his disability was kept to a minimum, although he had one epileptic fit in the office over that period.

	After the appellant and Mr Wicks were given responsibility for the dance music list the appellant’s performance fell markedly, so the tribunal accepted, and became a cause for concern within the management group. In about the second week in December 1996 the management decided that both the appellant and Mr Wicks should be dismissed. Mr Wicks was dismissed on 19th December 1996. In the appellant’s case dismissal was postponed until it could be effected by a family friend who had obtained the appellant’s job for him initially. That person was off work through illness until late February 1997. On 28th February the appellant was dismissed.

	During February 1997 the appellant suffered a succession of epileptic fits. However, the tribunal accepted that those incidents did not influence or generate the decision to dismiss the appellant, which had been taken in December 1996.

The Complaint
The appellant alleged in his Originating Application that he had been treated less favourably by the respondent by reason of his disability when compared with other employees; that such treatment was not justified; that the respondent had failed to make any reasonable adjustment in relation to his work and/or disability and that his dismissal was caused by that discrimination.

	By their Notice of Appearance the respondent denied that the appellant was treated less favourably, contending that it had dismissed two employees, Mr Wicks and a Jason McBain for the same reason as that which applied to the appellant, namely his continuing failure to carry out his duties properly. Alternatively, the respondent relied on the plea of justification. It denied any failure to make adjustments necessary to remove any disadvantage suffered by the appellant as a result of his disability.

The Disability Discrimination Act 1995
The Act came into force on 2nd September 1996. The relevant provisions are to be found in ss. 1, 5(1), 5(2), 6 and 4(2)(d).

	With the assistance of counsel, and the guidance provided by the EAT judgments in O’Neill v Symm & Co Ltd [1998] ICR 481 and Morse v Wiltshire County Council [1998] IRLR 352 we consider that the proper approach to the issues raised in this complaint is as follows, given that the appellant was disabled, that the respondent knew he was disabled and that he was dismissed by the respondent:

(1)	has the appellant shown that the reason for his dismissals was related to his disability; if not, the claim under s. 5(1) and 4(2)(d) fails, but if so: 

(2)	was the appellant treated less favourably for a reason relating to his disability than the respondent treated or would treat others to whom that reason does not or would not apply? If not, this part of the claim fails, but if so:

(3)	has the respondent shown that his treatment of the appellant is justified?

	Alternatively:

(1)	did the duty arise under s. 6(1) to make adjustments; if not the claim under s. 5(2) fails, but if so:

(2)	follow the steps set out at paragraphs 41-47 of the judgment in Morse in order to determine whether the dismissal was caused by a breach of s. 5(2).

The Industrial Tribunal decision
In setting out the law the tribunal refer only to s. 4(2)(d) and 5(1) of the Act; there is no mention of ss. 5(2) and 6, and no finding is made as to that part of the complaint.

	The majority findings in relation to the s. 5(1) complaint are set out at paragraphs 14 to 18 of their reasons in this way:

“14.    As stated above we find that the Applicant was dismissed, and we find that the decision to dismiss was taken in approximately the second week of December 1996. Further, in all the circumstances of this case and notwithstanding the parallel dismissal of a work colleague (Mr Wicks), we regard that dismissal was of itself a less favourable treatment of the Applicant, compared with other similar staff.
15.	The Respondent gives as the reason for the dismissal, the Respondent’s perception of the inadequacy of the Applicant’s work performance. While we acknowledge and here note that in our view the Respondent acted fairly and sensitively when the Applicant did suffer from epileptic fits either at the Respondent’s premises or at home, we find that the Respondent’s conclusion in respect of the Applicant’s work performance was reached without any investigation or enquiry as to the impact of the Applicant’s disability and any associated regime of medicine. We take the view that the Respondent’s reason for dismissal, i.e. the inadequate performance, cannot therefore have been objectively arrived at. It is for this reason we find that the Respondent’s explanation for its actions is not satisfactory.
16.	We have then asked ourselves whether or not in these circumstances we are willing to draw the inference that the dismissal constituted an unlawful discrimination against the Applicant under the Act.
17.	The majority of us decides that no such inference is to be drawn. It is the Tribunal’s criticism that the Respondent was ignorant of the impact of the disability on the Applicant’s work performance. The Tribunal finds itself in the same level of ignorance.
18.	The majority, in these circumstances, does not draw the inference that the disability operated as a causative factor at the point of decision. The majority decides that it is not willing to take the view that there was an unlawful discrimination in this case.”

The Appeal
S. 5(1) Complaint
Miss Overs submits that where the majority reject the reason for dismissal advanced on behalf of the respondent and find that the appellant has been subjected to less favourable treatment, it must explain and give adequate reasons for declining to draw an inference of unlawful discrimination, subject to the respondent justifying its treatment of the appellant. Paragraph 17 does not provide an explanation, nor adequate reasons for the majority findings.

	In response, Mrs Pontac acknowledges that the majority judgment is not an easy one to follow, but submits, critically, that at paragraph 17 the majority found that the respondent did not know and could not reasonably know of the effect of the appellant’s epilepsy on his work performance and consequently disability did not form the reason for the appellant’s dismissal. She relies upon the judgment of Slynn J. in the pregnancy dismissal case of Del Monte Ltd v Mundon [1980] ICR 694, cited and applied in O’Neill.

	We reject that submission. In Mundon there was an uncertainty at the EAT stage, on the facts found below, as to whether at the time when the decision to dismiss was taken, the employer knew that the employee was pregnant. Similarly, in O’Neill the EAT held that for an employee to be dismissed unlawfully under s. 4(2)(d) and 5(1)(a) of the 1995 Act, the employer must have knowledge of the disability or at least the material features of it. In the present case the tribunal found that the respondent was aware of the appellant’s epilepsy early in the employment.

S. 5(2)
This part of the complaint is simply not addressed by the tribunal. It was raised in the form IT1, and not abandoned before the Industrial Tribunal. It ought to have been adjudicated on, submits Miss Overs.

	Mrs Pontac deals with this apparent deficiency by submitting that the tribunal found that the respondent did not have the necessary actual or imputed knowledge for the purpose of s. 6(6); hence no breach of the s. 6 duty arose to found a complaint under s. 5(2).

	We are not prepared to draw that inference from the way in which the tribunal’s reasons are framed. We have done our best to understand the cryptic observations in paragraph 17 of the reasons, but are unable to tell from that paragraph why the appellant lost and the respondent won. Meek v City of Birmingham District Council [1987] IRLR 250.

Conclusion
In our judgment this tribunal decision fails to give adequate reasons for dismissing the s. 5(1) complaint; fails to deal with the s. 5(2) complaint at all, and does not properly address the issues raised under the Act. 

	In particular:

(1)	although the tribunal found as a fact, in paragraph 7 of their reasons, that the appellant’s performance fell markedly and was the cause of considerable concern to management, the majority rejected the respondent’s reason for dismissal, that is the appellant’s inadequate performance (paragraph 15);

(2)	it regarded the appellant’s dismissal as less favourable treatment compared with other similar staff, without identifying any relevant members of staff other than Mr Wicks, who was similarly dismissed. No reasons are given for that finding.

(3)	Having rejected the respondent’s explanation for its actions it nevertheless, by a majority, declined to draw an inference of prima facie discrimination without adequately explaining its reasons for so doing. The only explanation provided in paragraph 17 is a criticism of the respondent which was ignorant of the impact of the disability on the appellant’s work performance. We are unable to discern the significance of the tribunal’s observation that it found itself in the same level of ignorance.

(4)	It makes no finding on the appellant’s alternative complaint under s. 5(2) of the Act, and in so doing fails to address the questions raised by s. 6.

	For all those reasons we have concluded that this decision cannot stand. It must be set aside and the case remitted to a fresh Industrial Tribunal for rehearing on all issues. To this extent the appeal is allowed.