Appeal No. EAT/0083/02 ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 January 2003

Before
HIS HONOUR JUDGE PROPHET
MR P R A JACQUES CBE
MR J C SHRIGLEY

STANLEY LEISURE PLC	APPELLANT

MR N BOYD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A BURNS 
(of Counsel)
Instructed by:
Messrs Eversheds Solicitors
Eversheds House
70 Great Bridgewater Street
Manchester M1 5ES	
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT	

HIS HONOUR JUDGE PROPHET

1	Mr Boyd submitted an Originating Application to the Newcastle Employment Tribunal complaining of an unfair dismissal and disability discrimination in September 2000.  He had been dismissed by his employer, Stanley Leisure Plc, who resisted both the complaints in their Notice of Appearance.

2	The case came before an Employment Tribunal at Newcastle with Mr Hargrove as the Chairman and Mr Meek and Mr Thomson as lay members.  The hearing extended over two days on 25 and 26 September 2001 and in chambers for deliberations on 17 October 2001.  The reserved decision, promulgated on 8 November 2001 with twelve pages of Extended Reasons was that the dismissal was unfair and that the complaint of disability discrimination was well founded.

3	There is no mention in the decision of a determination of a holiday pay issue which it appears from paragraph 12 of the Reasons was adjudicated upon by the Tribunal, but that is a minor matter.  Rather more serious is that the decision makes no direct reference as to remedy, consequent upon the determinations set out in the decision, both for unfair dismissal and for disability discrimination.

4	It may be possible to infer from paragraph 2 of the decision and a reference in paragraph 7 of the reasons to the Polkey case what was in the Tribunal’s mind in respect of compensation for unfair dismissal, but that is not a satisfactory way of setting out the Tribunal’s findings as to remedy.

5	The appeal by Stanley Leisure Plc is that the Employment Tribunal erred in finding first a failure on the part of the Appellant to make adjustments, as required by section 6 of the Disability Discrimination Act 1995, and secondly that Mr Boyd was treated less favourably by dismissing him for a reason related to his disability.  The appeal also challenges the finding that the Appellant had failed to show justification in either situation.  

6	There is also a cross-appeal by Mr Boyd in respect of the finding of unfair dismissal in that that should have been determined as unfair on liability other than on a purely procedural deficiency.

7	Mr Burns of Counsel has set out his submissions in the Notice of Appeal, supplemented those in his Skeleton Argument and addressed us thoroughly at the Tribunal here today.  Mr Boyd is not represented at this hearing but a Skeleton Argument has been prepared for him by Mr Sweeney of Counsel.

8	It is somewhat unfortunate that the Employment Tribunal did not set out at an early stage in its Reasons, as is the common practice these days, the issues which the Tribunal had to determine.  If they had done so it is possible that the Reasons would have been less vulnerable to the arguments which Mr Burns has been able to put to us in respect of the appeal.

9	So far as section 6 is concerned, the Tribunal had to consider the obligations on the employer to make such adjustments as were reasonable in Mr Boyd’s situation, having particular regard to the wording of section 6 in the statute.  It is undoubtedly the case that this is not easy legislation to interpret and that has led to helpful guidance being given to Employment Tribunals in Morse v Wiltshire County Council [1998] IRLR 352.  In the Employment Tribunal decision there is no mention of that case nor of the sequential steps set out in it.
10	We have considered carefully whether it is possible nevertheless to be satisfied that the Tribunal has followed the correct sequential steps and it is indeed accepted by Mr Burns that a failure to mention Morse v Wiltshire itself or indeed directly of the sequential steps set out therein does not necessarily render the Employment Tribunal’s Reasons faulty.  See Humphreys v Environment Agency (EAT/24/99) where Lindsay J points this out.

11	However, having considered the matter carefully this Tribunal is satisfied that in order to ascertain whether the Employment Tribunal reached proper conclusions having regard to the statutory provisions it is necessary to make considerable inferences and that the gaps that exist are sufficiently serious to render the judgment of the Employment Tribunal unsatisfactory.  One of the most serious of those, as pointed out to us by Mr Burns, is the absence of any clear finding as to the need within the statute to find a substantial disadvantage in comparison with persons who are not disabled.

12	Furthermore, Mr Burns has also satisfied us that there is considerable deficiency in the way in which the Employment Tribunal tackled the issue of justification.  Although there is reference to Jones v The Post Office [2001] IRLR 384 and to the guidance given in that case by Arden LJ as to the appropriate questions to be asked and answered, we are unable to find that that guidance was followed.  It was at least incumbent in order to follow the Meek test that the parties should be able to follow how the Tribunal had concluded that justification was permissible in the particular situation which arose.  This renders unsafe the Employment Tribunal’s findings in respect of disability discrimination.

13	The Appellant’s appeal in respect of the findings on disability discrimination must therefore be allowed and the case remitted to a new Employment Tribunal for reconsideration.  Nothing said above is to be taken as indicative of how that Tribunal may determine the relevant issues in due course, other than their following the correct legal analysis and process.

14	We turn now to the cross-appeal by Mr Boyd.  There is, we feel, considerable substance in the submission that the Tribunal’s determination on this matter, as it appears in the Reasons, is faulty.  Having determined, as they were obliged to do, the reason for Mr Boyd’s dismissal, they omitted altogether in paragraph 6 of the Reasons to mention section 98 (4) of the Employment Rights Act 1996, either directly or by reference.  By moving on only to British Home Stores v Burchell they did not direct themselves correctly as to consideration of the overall fairness in the particular circumstances.  A later reference in paragraph 10 of the Reasons when considering justification for discrimination cannot remedy this defect.

15	The Tribunal was hearing all the evidence appertaining to a claim of unfair dismissal as well as disability discrimination prior to their reaching any conclusion on either.  It does not appear from paragraphs 6 and 7 of their Reasons that issues relating to Mr Boyd’s disability and  what adjustments were found to be appropriate under section 6, were taken into account as a material factor in their consideration of the fairness or otherwise of the dismissal under section 98 (4).

16	We conclude that the finding of unfair dismissal also requires re-consideration.  Since we are remitting the case to a fresh Employment Tribunal for reconsideration on the disability discrimination issues it will be appropriate for that Tribunal also to reconsider the finding of unfair dismissal.

17	It does not of course necessarily follow that Mr Boyd will succeed in respect of unfair dismissal on the basis he asserts since, even taking into account the matters referred to in paragraphs 14 and 15 above in considering section 98 (4), the Tribunal might still reach the same conclusion as hitherto.  However, it is appropriate for the cross-appeal also to be allowed and the question of whether Mr Boyd was unfairly dismissed remitted to the new Employment Tribunal for further determination in respect of liability for unfair dismissal and any consequent remedy which may arise.