Appeal No.	 EAT/150/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 May 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR P DAWSON OBE
MR J C SHRIGLEY

MR P ALLEN	APPELLANT

H HARGRAVE & CO	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR DONOVAN
(OF COUNSEL)
APPEARING UNDER 
THE EMPLOYMENT 
LAW APPEAL ADVICE SCHEME  (ELAAS)	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this Hearing is to determine whether there are any arguable points of law in an Appeal which Mr Allen wishes to make against the rejection by an Employment Tribunal of his complaint of unlawful discrimination on the grounds of disability and on the finding by the Employment Tribunal that he was not entitled to an award in relation to his upheld complaint of unfair dismissal.

1	In brief, the Applicant/Appellant worked as a butcher at the Respondent’s abattoir.  During the course of his employment it appears that he suffered from a condition called tenosynovitis which affected his ability to carry out his work duties and it appears to have been common ground, I think, that he suffered from a disability as a result of this condition.  He was subsequently dismissed  -  the Tribunal said unfairly, but that it was not a case for making an award.  

2	The points which seem to us to be arguable on the Appeal against the Tribunal’s decision are these.  Firstly, the Tribunal should have concluded that the Appellant was dismissed for a reason which related to his disability.  In other words, there ought to have been a finding that he had been so dismissed which itself, would have an impact on the claim for unfair dismissal.

3	Secondly, it is, we think arguable, that the Tribunal have not or perhaps have not adequately distinguished between the Section 5(1) claim and the Section 5(2) claim, and when they deal with justification under Section 5(1)(b), it is arguable that they have not effectively ruled on the justification defence in relation to Section 5(1) as opposed to looking at it possibly in the context of Section 5(2) only.

4	Thirdly, it seems to us to be arguable that the Tribunal’s approach to the question of reasonable adjustments under Section 6 of the Act is wrong in law.  It is arguable, as it seems to us, having regard to para 5 of the Employment Tribunal’s decision that the Tribunal have transposed arguably the duty on the Employer to consider what reasonable adjustment should be made to the Employee and his representative to make suggestions as to what should be done.

5	Fourthly, going back to justification, it is arguable that the Tribunal have not approached the question of justification under Section 5(2) correctly if they  have dealt with it at all.

6	The last point is a pure unfair dismissal point, namely that the Tribunal’s decision not to award any compensation failed to recognise that had the Employers followed a fair procedure, assuming the unfair dismissal decision stands, then he would have been entitled to financial benefits whilst that procedure was being gone through so that he was entitled, on the Tribunal’s own findings, to limited financial compensation for the failure by the Employers to operate their procedures correctly, which would have taken some time to have done.  All those points are arguable.  We wish to make it perfectly clear, as will be understood we hope, by the Respondents and their advisers that this has been a ex-parte hearing.  We have not heard any argument from them in relation to this case and therefore, no view has been formed as to the likely outcome of this Appeal.  This Appeal must be heard as a Category A case.  It will take, I think, between ½ day to 1 day to dispose of. 

7	The Respondents have indicated that they would like some notes of evidence because, as they contend in their PHD form, it appears to some extent the Appeal raises questions of fact.  It has been made plain to us by Mr Donovan, who has appeared under the ELAAS scheme and to whom we are grateful, that the most that the Appellant could hope to achieve by a successful Appeal in this case, is a remission of his claim back to a newly constituted Employment Tribunal.  It seems to us, having regard to that approach which we entirely endorse, that notes of evidence will not be required for the purposes of determining this Appeal, since the Appeal is concerned as will be apparent from the points identified, largely with the method of approach of the Employment Tribunal to the issues before them and the way they have dealt with the Act, rather than by reference to the particular findings of fact.  

8	Accordingly, the application for Notes of Evidence is refused at this time.