Appeal No.	 EAT/380/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 June 2000

Before
MR R LANGSTAFF QC
MR D CHADWICK
LORD DAVIES OF COITY CBE

PENDRAGON PLC	APPELLANT

MR DAVID CHAY	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR G PRITCHARD
(of Counsel)
Retail Motor Industry Federation
Legal Department
201 Great Portland Street
London
W1N 6AB	

MR RECORDER LANGSTAFF QC

1	This is a preliminary hearing in a proposed appeal by Pendragon Plc, whom I shall call the employer, against David Chay, the Respondent.  It is a proposed appeal from the decision of the Employment Tribunal at London (South) which heard evidence over a period; it seems of at least some five days before promulgating extended reasons for its decision on 7 February 2000.

2	There are two parts to this appeal.  They found in the circumstances that had happened and that the employee had been unfairly dismissed and secondly they found that he had been discriminated against on the grounds of his disability.  

3	The short facts are that the Applicant had a disability in that he suffered from a degree of cerebral palsy which manifested itself in profound deafness and poor co-ordination and in consequence of his receiving no early remedial education, so the Employment Tribunal found, he was unable to hear, to speak clearly or to read more than a few basic words.

4	He cleaned cars and had done so for fifteen years with the employer, when following an incident he was called to a disciplinary hearing.  It is accepted by the Respondent that that disciplinary hearing which took place on 11 February 1998 reached a decision which they would not seek to uphold.  It was wrong that they decided to dismiss him for gross misconduct because of his disability, he had not in fact understood that the conduct which he had committed was as serious as his employers viewed it and indeed we have had some difficulty in so understanding.

5	What happened thereafter is of some significance.  The Employment Tribunal appeared to have found and the employer submits to us through Mr Pritchard today, that the contract ceased in the sense that the employer became an ex employee upon dismissal.  On 26 February there was an appeal hearing that purported to reinstate the employee.  The Employment Tribunal described that as an offer of reinstatement.  It was as they found an offer of reinstatement upon somewhat different terms in that, as the Employment Tribunal found there was a condition that there would be a guardian to work with or work along side or be along side the employee.  The condition was in half formed, it seems no one has been very clear either at the Employment Tribunal or before us, as to what precisely the guardian was to consist of.  There was room for very different views as to what it might be.  However, in a significant passage the Employment Tribunal said at paragraph 27 of his judgment: -
27.“The Tribunal notes that the condition relating to a guardian was imposed by the Respondent in an attempt to assist the Respondent and was not an offer of assistance made by the Respondent in any attempt to help the Applicant.”

6	So far as the unfair dismissal claim is concerned, a number of points are taken against the Tribunal’s decision.  First, it is argued that in paragraph 12 the Employment Tribunal found that the appeal hearing was not a re-hearing and it did not have the effect of curing defects.  The submission to us is that an appeal hearing does cure defects in an initial hearing and that there is copious law to that effect.  Although, we think, that there is a criticism to be made of the Employment Tribunal in that they appeared to have treated, if one compares paragraphs 10 and 12 of their decision, the issue as one of law when, it is essentially one of fact, that is whether fairness which is denied at a first hearing is conferred by the process or conclusion of a second hearing, is perhaps irrelevant in the situation of the present case where there was not a full reinstatement on any view that the Tribunal took they said there was a conditional offer.

7	Before us a second point was taken that there was not such condition and that the Employment Tribunal was perverse, so defined.  The reasons for this are that the position of guardian was misunderstood, that a guardian would be a mutual benefit that the Tribunal failed to find who would fund or find a guardian and there is no reason given as to why such a condition is inappropriate.  We think that the Employment Tribunal were fully entitled to come to the conclusion on the evidence that they had that to impose a guardian upon an employee is to affront his dignity particularly, since he had worked doing his job without particular difficulty in doing that job for some fifteen years.  Such an affront to his dignity that he might very well take it as completely unacceptable.  We have no difficulty therefore in rejecting the plea of what is in effect perversity.  

8	The further points are taken that in paragraphs 13 and 14 the Employment Tribunal dealt with the offer as new employment as they describe it and its rejection as unreasonable and in paragraph 14 they confuse by using the word reasonable, the test of reasonableness, on the one hand which may be appropriate when one is considering a test under Section 98(4) of the Employment Rights Act 1996 and contractual entitlement, which is a reference to the well known principals of constructive dismissal. That is that where an employer so behaves as to break his part of the employment bargain.  The employee is entitled to accept that breach if it is sufficiently serious as releasing him from his obligations to go on working as an employee.

9.	However, it seems to us that the Employment Tribunal having adopted the analysis which they did, that there was here dismissal, that the employee was an ex-employee, pending appeal, that there was an appeal hearing with an offer of reinstatement.  They were not looking at the question of acceptance of re-podiatry conduct; rather they were looking at the question of whether or not the employee, the applicant before them had failed to mitigate his loss.  The legal test there is whether or not he had acted reasonably or unreasonably in so doing.  They concluded that he had acted reasonably in rejecting the job offer.  It would be obvious that several of the points taken in respect of the unfair dismissal claim relate back to the argument put before us with conspicuous care, skill and thoughtfulness by Mr Pritchard for the employer.  That it is possible to affirm a contract of employment by seeking to appeal, a dismissal, which has taken place in respect of misconduct.  

10.	This raises the next question of considerable interest at least academically, as to whether or not a contact of employment has a separate existence from the fact of work for wage.  Mr Pritchard points to examples such as the enforceability of restrictive covenants to support his submission, that where there is an appeal process contractually provided for, that the contract may continue to that extent and may therefore be affirmed.  The difficulty with it as a submission is two fold.  First, it assumes that there is a contractual entitlement to the appeal process and he was willing to accept in argument when pushed, that there may be more than one type of employment contract and certainly more than one version of an employment contract in relation to appeals.  Secondly, it is difficult to see why as a matter of principal an affirmation of contract by entering an appeal, should be an affirmation of a contract which has at least one analysis ceased to exist, save as for, a right to appeal.

11.	But be it as it may, because it seems to us here, that there was a conclusion of the appeal hearing which was either itself taken as a whole a repudiatory breach because of the dignity to which it then was going to subject the employee or which was an offer which was not reasonable to accept, if one takes the analysis the Employment Tribunal adopted and which I am bound to say we prefer.  It does not really matter in the event and we can say that we think that the conclusion to which the Employment Tribunal came was plainly and unarguably right upon either view of the law.

12.	We come then to the disability discrimination claim.  First of all, Mr Pritchard raises as he is entitled to do time points which goes to jurisdiction.  He cannot assure us that he took the time points below.  The Employment Tribunal in their decision do not suggest that he did.  

Accordingly there was no particular reason for the Employment Tribunal to address the issue of time in their decision.  The time limits for bringing a claim of discrimination in respect of disability in paragraph 3 of the Act are that the Tribunal shall not consider a complaint unless it is presented before the end of a period of three months beginning with the act complained of was done, that is because of the us of the word shall plainly mandatory in its terms.  However, for the purposes of that paragraph, sub paragraph 3(a) provides: -

“(a)		Where an unlawful act of discrimination is attributable to a term in a contract that act is to be treated as extending throughout the duration of the contract
 (b)		Any act extending over a period shall be treated as down at the end of that period and see a deliberate admission shall be treated as done when the person in question decided upon it.”

13.	Each of the acts of discrimination identified in paragraphs 22, 23, and 24 are it appears to us, complaints of omission of a continuing nature.  It seems to us, therefore, that had the Employment Tribunal expressed themselves as to question of time, they would have found that the complaints in respect of those matters were within time limit to be fair to them the complaints were clearly signalled as having taken place over a period of years in the Originating Application before them.  We therefore think that the Employment Tribunal had jurisdiction to consider those complaints so far as the complaints of discrimination on  the grounds of disability related to the disciplinary hearing and appeal and the offer of reinstatement, plainly that was within the three month period.

14.	There are a number of points, which Mr Pritchard sought to argue before us in respect of discrimination as such.  He suggests paragraphs 6(8) of the Notice of Appeal that the Tribunal failed to mentioned any reason for their rejection of the employers central contention that the accommodation and adjustments contended for by the Respondent employee were only of a personal, rather than job related nature and cites Kenny –v- Hampshire Constabulary [1999] IRLR 76 in support.  The difficulty with that submission is the wording of s.6 of the act 1995 to which it relates where it appears that what is identified by the Employment Tribunal are failures to offer proper opportunities for training and promotion and discrimination because the employer offered any training to progress in his own field, for instance for a valeter.  Section 6(1)(a) provides: -
“Where any arrangements made by or on behalf of an employer…place the disabled person concerned that a substantial disadvantage etc.. there is a duty upon the employer to take steps.”
Sub section 1(a) applies (so sub section 2 tells us) (b) to any term, condition or arrangements on which employment promotion a transfer training or any other benefits is offered and indeed goes on in sub section 3 to suggest that steps which an employer may have to take will include or may include, giving him or arranging for him to be given training and providing a reader or interpreter.  

15.	Accordingly we do not think that the Employment Tribunal’s reasons can be falsified by importing from another context the distinction between adjustments and accommodation of a person rather than job related nature.  At paragraph 6(10) then of his Notice of Appeal Mr Pritchard complains that the Tribunal has failed to specify how the Appellant fell foul of the code under the act.  What the Tribunal do in our view is sufficient to indicate why it was that the employer lost. They single out in paragraph 33 of their decision, why it is they find principally that the code of practice was breached.  Although it is fair to say that they do use the word inter alia, but we think that to focus upon those words would be to take an unnecessarily and over technical view of their judgment.

16.	The Tribunal, it is said, failed to identify with particularity what the acts of discrimination were; that is always difficult where what is being asserted is a negative and Mr Pritchard was entirely frank in accepting that in the course of his argument before us.  Paragraph 6(12) that they fail to mention that there was an important justification advanced for the act of dismissal.  He did not, I think he would accept urged upon us with any strength and we think he was right to take that course.  Similarly, he regarded paragraph 6(14) as something, which on its own he could not rely upon to persuade us to take any different course.  

17.	However, we consider that there is an arguable point, which is restricted to the grounds under paragraph 6(9) and 6(13) each of which relates to the other.  We take this view conscious, as we are that the law on discrimination by reason of disability is still at a stage that might be described as developing rather than centralised.  The essential point that is made is that in paragraph 27 of its extended reasons the Tribunal treated the Applicant as being able to compare himself who did not share his disability and with, we think perhaps more and merely rhetorical force, compares that approach with the approach which the Tribunal elsewhere took when the complaint appears to be that they did not treat him differently from the way which the non-disabled would have been treated.  He draws attention to the fact that after this decision was made, the Clark v Novacold available in transcript at the time of this decision, may not have in the event been followed in those paragraphs.  

18.	We are far from sure that there is an appeal which will necessarily succeed but it seems to us that there is sufficient before us, to think that there is at least an arguable case that it might and that the interaction of authorities such as a Clark v Novacold against the background of the facts in this case and the apparently, inconsistent approach which the Tribunal may be said to have taken, justifies the examination of a full Appeal Tribunal. For that reason we give leave, limited to those 2 grounds alone.  Now having come to that conclusion Mr Pritchard, we need I think, to revisit don’t we, the directions which are necessary.  First of all I think that it would be helpful if there was an amended Notice of Appeal, amended by making the points which we have restricted you to.  Category B.