Appeal No.	 EAT/306/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 May 1999

Before
HIS HONOUR JUDGE HAROLD WILSON
MR E HAMMOND OBE
MR P A L PARKER CBE

COUTTS & CO	APPELLANTS

MRS S DAVIES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR A SHORT
(of Counsel)
Messrs Beachcroft Stanleys
Solicitors
20 Furnival Street
London
EC4A 1BN	

	JUDGE HAROLD WILSON:	This preliminary hearing has concerned the proposed appeal by the respondent Bank against the decision of the Employment Tribunal in favour of the applicant in her case against the respondent Bank that she had been unfairly dismissed. 

The applicant had worked for the respondent Bank from August 1968 until her employment was terminated on health grounds in 1997. From 1989 to 1995 the applicant had been head of the Stock and Share Section. There had then been a restructuring and that department had been merged with another of which the applicant was not made the head. The applicant was peremptorily told about this and given temporary work. She complained that that was a suitable alternative. Finally, at a meeting on 5th February 1997 the applicant complained that there was no warning before that meeting that dismissal might occur on capability grounds because no medical opinion or prognosis had been obtained by the respondent Bank and there was no adequate enquiry about alternative employment. Therefore, the applicant claimed that the dismissal was unfair. Alternatively, she claimed that it had been a redundancy situation because the applicant’s job had vanished. If that were the case, the applicant complained that what happened would have been unfair because there was no consultation and there were no steps taken about redeployment or retraining. Furthermore, the applicant complained that there was unlawful discrimination contrary to the Disability Discrimination Act 1995.

The respondent Bank denied unfair dismissal and redundancy and its appearance set out in detail all the steps taken in negotiation with the applicant or her representatives. The Bank suggested many other jobs, but the applicant, Mrs Davis, would not deviate from seeking ill health retirement instead of a return to work, although she failed to provide the requested and necessary further specialist medical opinion.

We have considered the arguments put forward by Mr Short and have concluded that there should be full argument on the question whether the Employment Tribunal erred in law in finding, in the context of the facts it found proved, that the dismissal for capability was unfair because the employer failed to state explicitly in its letter of 22nd January 1997 that medical retirement was no longer an option under consideration. 

On that ground alone, we think that the appeal should proceed to full hearing and we give the following directions:

(1)	This appeal is not to be listed for full hearing until the applicant’s pending appeal for leave to cross-appeal out of time has been decided and, if successful, her preliminary hearing has also been decided.

(2)	If appropriate, this appeal and the cross-appeal should be listed for hearing together.

(3)	Skeleton arguments with respect to all matters at issue before the final hearing should be filed and served 14 days before the date stipulated for the final hearing.