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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kirby v. Hayes Distribution Ltd [2001] UKEAT 980_00_3101 (31 January 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/980_00_3101.html Cite as: [2001] UKEAT 980_00_3101, [2001] UKEAT 980__3101

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APPEARANCES

 

For the Appellant	Mr T Naylor Personnel Advisory Services 49 Warrington Road Cuddington Cheshire CW8 2LN


 


JUDGE P COLLINS CBE

1. This is the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at Leicester, whose Extended Reasons were promulgated on 18 July 2000, although, in truth, as appears from internal evidence, the Extended Reasons appear to be the reasons given orally at the end of the hearing on 11 July 2000 and subsequently typed up from the tape.
2. By their decision the Tribunal dismissed the Appellant's applications that he had been unfairly selected for redundancy and that his dismissal was discriminatory under the provisions of the Disability Discrimination Act 1995. The Appellant is now, I think, nearly 59 years old. From 26 June 1998 until 21 February 2000, he was employed as a Training Officer by the Respondents. The Respondents are a Shell distributor, they have about 600 staff and he worked to a substantial degree, although it is not quite clear how much, on the shop floor, which may have created difficulties because he had progressive deterioration in his sight. Health and safety issues arose.
3. The Appellant was off work from August 1999 and the Tribunal held that initially, at any rate, there were some quite good efforts made by the Respondents to deal with the issues to which his disability gave rise.
4. However in February 2000 the position changed rather dramatically because a need arose for some 30 or 40 redundancies because of a downturn in work. They discussed the possibility of the Appellant becoming a clerk, which he did not want, and there was then a decision to dismiss him.
5. The decision is attacked by Mr Naylor on the ground that there were other affected workers whose redundancy was dealt with under the provisions of Section 188 of the Trade Union Labour Relations Consolidation Act 1992 and that the Appellant was treated differently from those employees in that he was dismissed beforehand. That in itself might amount to discrimination under Section 5 of the 1995 Act.
6. At any rate, the Tribunal in the Reasons which are not altogether easy to follow, accepted that the principal reason for dismissal was redundancy, but the Respondents acted fairly in the way that they did it, in that they consulted and their decision was justifiable. It is very unclear from the Tribunal's judgment what the facts were on which they came to that conclusion. There is certainly some reason to suppose that he was selected for redundancy because of his disability.
7. The other issue, and the Tribunal were obviously concerned about their decision, as appears from paragraph 17 of their Reasons, is that he was not treated less favourably on account of his disability but because he had been away for 7 months. However, he had only been away for 7 months because of his disability, and therefore it seems to us that there are, arguably, some rather serious flaws in the reasoning of the Tribunal, and a lack of clarity about the facts which they relied upon to come to their conclusions. Therefore we allow the whole of this case to proceed to a full hearing, with the whole of the Chairman's Notes.