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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hoyer (UK) Ltd v. Capaldi [2002] UKEAT 1154_01_1804 (18 April 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1154_01_1804.html Cite as: [2002] UKEAT 1154_01_1804, [2002] UKEAT 1154_1_1804

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APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK:

1. Following a preliminary hearing held in this matter before a division presided over by Judge Ann Wakefield, sitting on 19 October 2001, when the case was allowed to proceed to a full hearing for the reasons given in a judgment delivered on that day, the parties reached agreement for the disposal of the appeal, which agreement was contained in a draft consent order signed by the solicitors to the parties and dated 28 February 2002, whereby the appeal is allowed and the case remitted to a fresh Employment Tribunal for rehearing.
2. On receipt of that draft the case was listed for an approval hearing today in accordance with paragraph 13 of the EAT practice direction, which provides that appeals will not be allowed by consent without a hearing before the EAT to determine whether there is good reason to allow the appeal. See J.Sainsbury Plc v. Moger [1994] ICR 800.
3. The Applicant, Mr Capaldi, was employed by the Respondent, Hoyer (UK) Ltd (Hoyer) as a tanker driver from 1989 until his dismissal in March 2000. Following dismissal he presented a complaint of disability discrimination and unfair dismissal to the Bristol Employment Tribunal. That complaint was heard by a Tribunal chaired by Mr S A Berry on 25 – 26 June 2001 and following deliberations in chambers on 12 July the Tribunal promulgated its decision with extended reasons on 9 August 2001 upholding Mr Capaldi's complaints both of disability discrimination and unfair dismissal.
4. As to disability discrimination, Hoyer had denied that the Applicant was disabled within the meaning of section 1 DDA. That issue had been resolved in favour of the Applicant at an earlier Tribunal hearing. It was accepted by Hoyer that the Applicant had been treated less favourably for the purpose of section 5(1)(a) DDA. That left only the issue of justification under section 5(1)(b) DDA.
5. The Tribunal held, directing themselves in accordance with the judgment of Lord Johnston in Quinn v. Schwarzkopf Ltd [2001] IRLR 67 that since Hoyer did not acknowledge that the Applicant was disabled during the employment, they could not now contend, the onus being on them, that their action in treating him less favourably for a reason related to his disability was justified.
6. Pausing there, we accept Hoyer's case on appeal, identified in the preliminary hearing judgment, that Quinn does not reflect the state of the law as interpreted at EAT level. It is in conflict with the judgment of Mr Justice Keane in British Gas Services Limited v. McCaull [2001] IRLR 60, which latter approach was preferred by the EAT in a case on which I sat, Greater Manchester Fire and Civil Defence Authority v. Bradley [27 April 2001. Unreported].
7. To complete the picture, Lord Johnston has since explained his reasoning in Quinn in the later case of Callaghan v. Glasgow City Council [2001] IRLR 724. He does not there exclude the possibility of the defence of justification being made out in the circumstances arising in the present case.
8. In these circumstances we accept that, in following Quinn, the Tribunal misdirected themselves in law. They ought to have considered the defence of justification on its merits but did not. Hence this part of the case must be remitted to a fresh Tribunal for rehearing.
9. As to unfair dismissal, the grounds of appeal identified at the preliminary hearing were said to be as follows; the Tribunal failed (a) to make proper findings as to Hoyer's reason for dismissal (b) to resolve crucial disputes which impacted on the issue of fairness of the dismissal nor (c) support by findings of fact, 2 particular conclusions adverse to Hoyer. As to the first of these 3 grounds it does seem to us that both in paragraph 1 and 10 of their reasons the Tribunal found that the reason for dismissal was, as Hoyer contended, capability. There is therefore nothing in this point.
10. However, having considered the second of these grounds we are persuaded that the Tribunal has failed to resolve certain factual issues, identified in their reasons, in particular, at paragraph 5, whether the Applicant applied for the post of team leader and secondly what was said in a telephone conversation, referred to in paragraph 7 of the reasons.
11. Further, it seems to us that there are no findings of primary fact to support the conclusions, first that Hoyer's conduct throughout the matter relating to the Applicant's injury was fundamentally flawed and secondly that the unfairness was substantive as well as procedural. That finding at the end of paragraph 9 of their reasons does not sit well with the observation by the Tribunal at the beginning of that paragraph that:

"The Applicant's complaint that he was unfairly dismissed rests almost wholly on lack of consultation."

12. This apparent inconsistency feeds through to any eventual conclusion as to compensation for unfair dismissal.
13. For these reasons we have concluded that this decision cannot stand. Accordingly we shall endorse the draft consent order signed by the parties, which further provides that there should be no order as to the costs in the appeal.