Appeal No. UKEAT/0771/04/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 April 2005

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS OBE
MRS M V MCARTHUR

MR NOEL SHAIL	APPELLANT

SWINDON PRESSINGS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DAVID E GRANT
(Of Counsel)
Instructed by:
Messrs Rowley Ashworth Solicitors
247 The Broadway
Wimbledon
London SW19 1SE	
For the Respondent	MR PHILIP MEAD
(Of Counsel)
Instructed by:
BMW (GB) Ltd Legal Services
Ellesfield Avenue
Bracknell
Berks RG12 8TA	

SUMMARY

Disability Discrimination –and- Unfair Dismissal

Whether disabled – Question of fact for Employment Tribunal.  Section 98(4) fairness – perversity argument rejected.  Appeal dismissed.

HIS HONOUR JUDGE PETER CLARK

1.		This is an appeal by the Claimant, Mr Shail, against the decision of the Bristol Employment Tribunal, promulgated with Extended Reasons on 8 July 2004 dismissing his complaints of unfair dismissal and unlawful disability discrimination against his former employer, the Respondent Swindon Pressings Limited.

The facts
2.		The Claimant commenced employment with the Respondent as an apprentice fitter in August 1981.  Background issues arose as to his position in the Company and his pay which remained unresolved when, on the 21 September 2001, he went off sick after suffering chest pains and palpitations.  His General Practitioner diagnosed anxiety and depression and certified him unfit for work.  He remained off work until his dismissal at a disciplinary hearing held on 21 May 2003.  During the intervening period, attempts had been made by Mr Wozniak, the Respondent’s Personnel Operations Manager, to arrange a meeting with the Claimant, but without success.  

3.		The Respondent then instructed Enquiry Agents to carry out observations on the Claimant; this they did on 28 and 29 April 2003.  The investigators filmed the Claimant driving a land-rover, going to a DIY store to buy building materials on two occasions, stopping his vehicle and carrying out building work at a residential property, involving putting up a fence and hanging a gate, work which required sawing timber, digging and drilling.

4.		Following receipt of the investigator’s report and photography, the Claimant was summoned to a disciplinary hearing before Mr Wozniak, to be held on 21 May 2003.  He attended with his Trade Union representative, Mr Stanley.  The Claimant accepted the substance of the investigator’s report.  He said that he was working without pay and doing so on the advice of his doctor; the work was a form of therapy.  Mr Wozniak did not accept that explanation.  He concluded that the Claimant’s absence from work was unauthorised because he was capable of some work for the Respondent.  He was summarily dismissed.

5.		Against that decision the Claimant appealed.  At the appeal before Mr Haydon, further evidence was adduce by the Claimant, including a letter from his General Practitioner, Dr Dwivedi, dated 3 July 2003 which read:

“As the Claimant was suffering from a mental health problem and not a physical one my advice to him was to try to carry out or activities that he felt he could cope with.  This would help him to come to terms with his medical condition which in turn should aid and speed his progress back to health and return to work.”

6.		The Claimant also produced a letter from the householder, at whose property he was shown carrying out the building work, a friend, stating that he, the Claimant, had not been paid for his labours.  The appeal was dismissed.

The Tribunal decision – unfair dismissal
7.		It was common ground that the Respondent’s reason for dismissal related to the Claimant’s conduct; a potentially fair reason for dismissal.  Applying the Burchell test, the Tribunal concluded that on the basis of the Enquiry Agent’s evidence, which was not challenged, the Respondent had reasonable grounds for their belief, following a reasonable investigation, that the Claimant’s absence from work was unauthorised; he was guilty of gross misconduct.  Dismissal fell within the band of reasonable responses open to the employer.  Procedural points, not taken at the Appeal hearing, were not the Tribunal record, relied on by Counsel for the Claimant before them.

Disability discrimination

8.		The first issue was whether the Claimant was disabled within the meaning of Section 1 of the Disability Discrimination Act 1995 (‘DDA’).  The Tribunal had before them a report from Dr Michael Best, a Consultant Psychiatrist, jointly instructed by the parties dated 8 March 2004.  

9.		Contrary to the opinion expressed by Dr Best and the Claimant’s General Practitioner, the Tribunal concluded that the Claimant’s ability to carry out normal day to day activities was not substantially impaired.  Resolving that question of fact see Abadeh v British Telecommunications plc [2001] IRLR 23, in favour of the Respondent on the basis of the evidence of the Claimant’s activities, revealed in the Enquiry Agent’s report.

10.		Strictly, that disposed of the disability discrimination claim but they went onto consider that claim, in the event that they were wrong in finding that the Claimant was not disabled within the meaning of Section 1.  They found 1) that the Claimant was not dismissed for a reason relating to his disability, DDA Section 5(1)(a), but due to his unauthorised absence from work.  They relied on the decision of this Tribunal (Miss Recorder Elizabeth Slade QC, presiding) in London Clubs Management Ltd v Hood [2001] IRLR 719, 2) alternatively, if his dismissal was for a reason relating to his disability, then he suffered less favourable treatment but that less favourable treatment was justified by the employer on the grounds on the Claimant was absent from work when he was apparently capable of working for the Respondent.

The appeal

Unfair dismissal
11.		Boldly, Mr Grant puts this part of the appeal on the base of perversity, accepting as he must, the stern test imposed by the Court of Appeal in such cases, see Yeboah v Crofton [2002] IRLR 634 (CA), Paragraphs 92-95 per Lord Justice Mummery.  He takes three distinct yet linked points.  

12.		In essence, he submits that in concluding that the Claimant’s dismissal was fair under Section 98(4) of the Employment Rights Act 1996, the Tribunal failed properly to take into account the failure of the Respondent to give advance notice of the disciplinary charge against the Claimant, prior to the hearing held on 21 March 2003, feeding through to the appeal hearing in July at which the Respondent had sight of Dr Dwivedi’s letter of 3 July and the house owner’s letter stating that no payment was made to the Claimant for his building work.  Although no separate point was taken below that the dismissal was procedurally unfair per se, nevertheless, in concluding that dismissal fell within the range of reasonable responses the Tribunal failed properly to take into account the Respondent’s failure to adjourn the appeal hearing so that Dr Dwivedi could be specifically consulted on the effect, if any, on his opinion of the Enquiry Agent’s findings.    

13.		We reject this part of the appeal. We accept Mr Mead’s point that the General Practitioner’s letter of 3 July 2003 added nothing to the opinions which he had earlier expressed to the Respondent in letters dated 6 January and 14 February 2003.  They paint a picture of a man grossly disabled, unable to open his own front door to visitors or to attend meetings with his employer over an 18 month period, during which he was in receipt of sick pay ending in March 2003.  The Tribunal held that the Respondent was entitled to conclude that that picture was wholly at odds with the hard physical evidence and covered by the Enquiry Agent, suggesting that the Claimant was capable of doing some work for the employer, hence the dismissal for unauthorised absence as defined in the Company’s Code of Conduct.

Disability
14.		The first question is whether the Tribunal’s finding that the Claimant was not disabled within Section 1 DDA is wrong in law.  The first point taken by Mr Grant relates to timing.  It is common ground that the judgment, as to whether the Claimant was disabled must relate to the time of his dismissal; that is the act of discrimination complained of and therefore the relevant date.  An issue has been raised before us as to whether the date of dismissal is that of the first disciplinary, the 21 May 2003 or the subsequent Appeal Hearing on 8 July.  The Tribunal, for example, at paragraph 28 of their reasons, refer to the material time without specifying that date.  However, we are satisfied that the case proceeded below on the basis that the material date was 21 May; that was the date to which the jointly instructed expert Dr Best, was asked to work.  We have been shown no evidence adduce below that the Claimant’s condition altered between 28 and 29 April and 21 May.  The Tribunal did, and in our view, was entitled to consider the position as at that date.  

15.		True it is, as Mr Grant submits, that the Enquiry Agent’s report shows what the Claimant could do, not what he could not do, cf. Goodwin v Patent Office [1999] IRLR 4.  However, we accept Mr Mead’s submission that, at paragraphs 26-28 of their reasons, the Tribunal reject the factual basis for the opinion of Dr Best and Dr Dwivedi.  That was, in the circumstances of the present case, a permissible option open to the Tribunal based on the Enquiry Agent’s evidence, see Lord Justice Pill in Kapadia v London Borough of Lambeth [2000] IRLR 699, paragraph 30.  In these circumstances, we uphold the Tribunal’s conclusion that the Claimant was not disabled within the meaning of the Act.  No error of law has been shown in respect of their approach to that question.  Accordingly, we do not find it necessary to go on to consider the Trib unal’s alternative findings at paragraphs 29-32 of the reasons.  This appeal must be dismissed.