Appeal No.	 EAT/1342/98
	and EAT/1343/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 March 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR T C THOMAS CBE
MRS E HART

EAT/1342/98

MR P AGNEW	APPELLANT

V

CHESTERFIELD BOROUGH COUNCIL	RESPONDENTS

EAT/1343/98

CHESTERFIELD BOROUGH COUNCIL	APPELLANTS

V

MR P AGNEW
RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

EAT/1342/98
For the Appellant	MR B CARR
(of Counsel)
Messrs Rowley Ashworth
Solicitors
247 The Broadway
Wimbledon
London SW19 1SE	
For the Respondents	MR J HORAN
(of Counsel)
Mr J Eatough
Chesterfield Borough Council
Town Hall
Rose Hill
Chesterfield
Derbyshire S40 1LP	
EAT/1343/98
For the Appellants	MR J HORAN
(of Counsel)
Mr J Eatough
Chesterfield Borough Council
Town Hall
Rose Hill
Chesterfield
Derbyshire S40 1LP	
For the Respondent	MR B CARR
(of Counsel)
Messrs Rowley Ashworth
Solicitors
247 The Broadway
Wimbledon
London SW19 1SE	

	JUDGE PETER CLARK:	We have before us for preliminary hearing appeals by both the Applicant, Mr Agnew and the Respondent, Chesterfield Borough Council, against the decision of an Employment Tribunal sitting at Sheffield in this case, which decision was promulgated with Extended Reasons on 22 September 1998.

	The Tribunal had before it complaints both of unfair dismissal and disability discrimination brought by the Applicant against the Respondent, by whom he was employed from 1983 until his dismissal effective on 31 October 1997.

	The background to the case is that after an impeccable service record the Applicant suffered domestic misfortune which led him to go off work in February 1997 suffering from depression.  He never returned to work with the Respondent. 

	Advice was taken by the Respondent’s from their medical adviser, Dr. Matthews.  As a result the Applicant was dismissed on 12 weeks notice by letter dated 7 August 1997 following an interview held on 5 August.  His appeal to a panel of councillors was dismissed on 23 October 1997.

	In considering the two claims the Tribunal made the following material findings.

Unfair dismissal

	(a)	The reason for dismissal related to the Applicant’s capability.

	(b)	The dismissal was unfair because a letter from the Respondent inviting the Applicant to the interview on 5 August was misleading, in that it said that the hearing was “not disciplinary”.  He ought to have been told that it was his last chance to avoid dismissal and have been given an opportunity to take advice (he was a Trade Union member and had been earlier represented by his Union) and obtain his own medical report.

	(c)	Under the principle in Polkey v AE Dayton Services [1987] IRLR 503, that even had a proper procedure been followed, dismissal would have been inevitable on the basis of his own medical evidence obtained between dismissal and the appeal hearing.

	Curiously, the Tribunal in their decision found that as a result the Applicant was not entitled to a compensatory award, but nevertheless adjourned the question of remedies to a further hearing absent agreement between the parties.

Disability Discrimination 

	(a)	The Applicant was not a disabled person within the meaning of s.1 of Disability Discrimination Act 1995 at the time of dismissal (7 August 1997) but was disabled person at the time of the appeal hearing (23 October 1997).  Those different findings appear to be attributable to the opinion expressed in the medical report subsequently obtained by the Applicant following his dismissal in August.

	(b)	The Respondent did not discriminate against the Applicant at the time of the appeal under s.5 of the Act because a comparator would have been treated in the same way.  In this respect the Tribunal directed themselves in accordance with the decision of this appeal Tribunal in Clark v Novacold Limited [1998] IRLR 420.

	(c)	The Respondent was not in breach of the duty to make reasonable adjustments imposed by s.6 of the Act.

The Appeals

	Having considered the submissions of Counsel for the parties both orally and in writing, we have concluded that both appeals ought to proceed to a full appeal hearing.  The separate grounds of appeal are in our view of varying strength, but we think it inappropriate to delete any of the grounds of appeal advanced on both sides for the purpose of the full appeal hearing.  Of particular significance we think is the Respondent’s complaint that the Tribunal failed to consider a submission made on behalf of the respondent that if any procedural defect occurred at the dismissal stage, that was cured by a full appeal hearing before the panel of councillors.  No adjudication is made on that submission in the Tribunal’s reasons.  

	As far as the disability discrimination appeal is concerned, the Applicant seeks to challenge among other things, the comparator approach taken by this Employment Tribunal following the Appeal Tribunal’s decision in Clark v Novacold.  We think that is a matter of some importance and having allowed the matter to proceed to a full appeal hearing, we shall direct that the appeals be consolidated and heard together.  The cases will be listed for one day, category B.  They shall not be listed for hearing before the Court of Appeal has delivered judgment in Clark v Novacold.

	For the purpose of the full appeal hearing there will be an exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the hearing, copies to be lodged with this Tribunal.  We make no further directions at this stage, but the parties have liberty to apply.  Any application for further directions should be marked for my attention.