BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom Employment Appeal Tribunal


You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Heinz Co Ltd v Kenrick [1999] UKEAT 1082_98_0312 (3 December 1999)
URL: http://www.bailii.org/uk/cases/UKEAT/1999/1082_98_0312.html
Cite as: [1999] UKEAT 1082_98_0312, [2000] ICR 491, [2000] IRLR 144, [1999] UKEAT 1082_98_312

[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2000] ICR 491] [Help]


BAILII case number: [1999] UKEAT 1082_98_0312
Appeal No. EAT/1082/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
             At the Tribunal
             On 29 October 1999
             Judgment delivered on 3 December 1999

Before

THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)

MR P DAWSON OBE

MR P A L PARKER CBE



H J HEINZ CO LTD APPELLANT

MR M KENRICK RESPONDENT


Transcript of Proceedings

JUDGMENT

RESERVED JUDGMENT

© Copyright 1999


    APPEARANCES

     

    For the Appellant MR T LINDEN
    (of Counsel)
    Instructed By:
    Ms A T Phillips
    Messrs Eversheds
    Solicitors
    11-12 Queens Square
    Bristol BS1 4NT
    For the Respondents MR P WARD
    (of Counsel)
    Instructed By:
    Mr Lewis
    Messrs Keogh Ritson
    Solicitors
    Gould House
    59 Chorley New Road
    Bolton BL1 4QP


     

    MR JUSTICE LINDSAY:

  1. This is the appeal of the employer, H J Heinz & Co. Ltd., in the matter of Mr M Kenrick -v- H J Heinz & Co Ltd. There was a hearing spread over some three days in May 1998 before the Employment Tribunal at Manchester under the Chairmanship of Mr M L Creed.
  2. Mr Kenrick, an employee of Heinz from 1979, was off work sick for a long period from May 1996 to April 1997, when he was dismissed. The causes of and the name properly to be put to his condition and the prognosis were all unclear. Only after he had been dismissed did it become entirely clear and was it accepted that Mr Kenrick suffered from ME or Chronic Fatigue Syndrome ("CFS"). Mr Kenrick lodged an IT1 claiming unfair dismissal and redundancy but leave was later given for him to add a claim for disability discrimination. It was conceded at the hearing before the Employment Tribunal that Mr Kenrick was suffering from CFS at the time of his dismissal and that that syndrome was a disability for the purposes of the Disability Discrimination Act 1995. The unanimous decision of the Tribunal was:-
  3. "(1) The applicant's claim for a redundancy payment entitlement is dismissed upon withdrawal.

    (2) The applicant's claim for disability discrimination pursuant to the provisions of the Disability Discrimination Act 1995 succeeds on the balance of probabilities.

    (3) The applicant's claim for unfair dismissal succeeds on the balance of probabilities.

    (4) The case stands adjourned pending resolution of any outstanding issues between the parties and in the absence of agreement the case will be relisted for consideration of the remedies on a date to be fixed by the Tribunal."

  4. Heinz appeals against both the unfair dismissal and disability discrimination aspects of the case.
  5. We shall need to return in more detail to Mr Kenrick's medical position later but it will be convenient to deal first with the more simple part of the appeal, namely unfair dismissal.
  6. A. Unfair Dismissal

  7. The Tribunal was satisfied that there was a dismissal and that it was for a potentially fair reason, namely on the ground of capability. That had been the only ground advanced by Heinz. It cannot be doubted but that there was ample material to support such a finding. Mr Kenrick had become ill on the 30th May 1996. By the 3rd February 1997 he was advised that he was running out of his contractual sick pay entitlement for the year 1996/97 (which was to 9 months' sick pay in any year of absence). On the 28th February 1997 he was told that if there was no indication given of a likely date for his return to work he would be at risk of being dismissed. On the 20th March 1997 his own General Practitioner advised that he did not know how long it would take Mr Kenrick to get back to normality. On the 3rd April 1997 the Company's medical adviser noted that Mr Kenrick was not fit to return for work. He was dismissed that day. Even at the Employment Tribunal hearing in May 1998 the evidence was that he was still not fit to work.
  8. Given the unexceptionable conclusion that Mr Kenrick was dismissed for the potentially fair reason of capability, the Tribunal should then have moved on to the question, under Section 98 (4) of the Employment Rights Act 1996, as to whether, depending on the circumstances, including the size and administrative resources of the employers' undertaking (both here considerable), the employer had acted reasonably or unreasonably in treating such incapability as a sufficient reason for dismissal, viewing the matter in accordance with equity and the substantial merits of the case. Was that what the Employment Tribunal did? What they did was to hold:-
  9. "(iii) However, having regard to the findings of the Tribunal in relation to the claim under the [Disability Discrimination] Act the Tribunal was satisfied that the dismissal of the applicant in all the circumstances was unfair applying the principles set down in Section 98 (4) of the 1996 Act."

  10. It is not easy to know precisely what the Tribunal had in mind in its reference to the findings in relation to the Disability Discrimination Act claim but it looks as if they may have been proceeding on the basis that any dismissal which was on the grounds of disability was, without more, automatically unfair within Section 98 (4). However, it is plain that there can be disability-related dismissals which do not offend the Disability Discrimination Act - see e.g. para. 6.21 of the Disability Discrimination Code of Practice (1996). That tends to suggest that it should be possible to have a disability-related dismissal which is not necessarily unfair for unfair dismissal purposes either.
  11. It may be, instead, that the Tribunal was proceeding on the basis that a disability-related dismissal which was not "justified" under the provisions of the Disability Discrimination Act, was, without more, automatically unfair. That, though, is nowhere provided in the provisions which have been enacted by the legislature. There could easily have been an "automatic unfairness" provision of the kind seen in, for example, Section 99 (1) of the Employment Rights Act 1996 or in TUPE Regulation 8 (1). Plainly Parliament knows how to so provide when it so intends. But nothing such is here to be found.
  12. These considerations convince us that the Tribunal erred in law in moving, as it were automatically or mechanically, as they seem to have done, from a holding as to unjustified disability discrimination to one as to unfair dismissal without, as far as one can tell, any separate consideration being given to the matters usually falling for consideration under Section 98 (4) of the Employment Rights Act. There was here, in our judgment, an error of law and, it may be added, that there may have been a further possible error in law in their failure sufficiently to explain their reasoning so as to have satisfied the familiar Meek -v- City of Birmingham test - see [1987] IRLR 250 CA at paras 8-11. We accordingly set aside the decision as to unfair dismissal. What conclusion the Tribunal would have come to had they considered unfair dismissal as the 1996 Act requires we cannot say and, subject to one consideration to which we shall later refer, the better course is thus for us not only to set aside the conclusion as to unfair dismissal but to remit the subject to the Employment Tribunal.
  13. B. Disability Discrimination: General considerations

  14. Now we turn to disability discrimination. First we make some general observations.
  15. (i) Comparison with other legislation

  16. Clark -v- Novacold [1999] IRLR 318 CA, a seminal case in this area of the law, was first reported in The Times on the 1st April 1999 and in IRLR on the 5th May 1999. The significance of those dates is that they are both well after O'Neill -v- Symm & Co [1998] IRLR 233, a judgment given on the 26th February 1998 to which the Employment Tribunal referred in the case before us. Those reports of Clark -v- Novacold were also after the hearings before the Tribunal in May 1998, after the Tribunal's decision was sent to the parties on the 14th July 1998, after the Preliminary Hearing at the EAT on the 10th December 1998, after the amended Notice of Appeal of the 15th December 1998 and after the Respondent's Answer of the 2nd February 1999. Through no fault of anyone, the consideration given to disability discrimination at those various stages could not have had the reasoning of the Court of Appeal in Clark -v- Novacold in mind.
  17. Amongst the points made by Clark -v- Novacold in the Court of Appeal is that a textual comparison between the disability discrimination legislation and that relating to sex or race discrimination is not helpful and may even be misleading. Thus at paragraph 30 of the decision in IRLR Mummery L.J., with whom Roch and Beldam L.JJ agreed, says:-
  18. "Contrary to what might be reasonably assumed, the exercise of interpretation is not facilitated by familiarity with the pre-existing legislation prohibiting discrimination in the field of employment (and elsewhere) on the ground of sex (Sex Discrimination Act 1975) and race (Race Discrimination Act 1976). Indeed, it may be positively misleading to approach the 1995 Act with assumptions and concepts familiar from experience of the workings of the 1975 Act and the 1976 Act."

    (ii) Justification within s 5 (1) (b)

  19. Section 5 (1), linked with Section 4 (2), represents a cause of action separate from Section 5 (2) - Clark -v- Novacold supra at para 93. Once it is held, for the purposes of Section 5 (1), that the claimant has been treated "less favourably" for a reason which relates to his disability then further consideration of the complaint within Section 5 (1) falls into one or other of two cases; cases in which there is no duty on the employer to make adjustments under Section 6 and cases where there is such a duty.
  20. To take first the case where there is no Section 6 duty, it there falls to the employer (the onus is plainly put upon him) to show that such treatment "is justified" - Section 5 (1) (b).
  21. To "justify" a state of things is to show or maintain the justice or reasonableness of it; to adduce adequate grounds for it; to show or maintain sufficient reason for doing that which one is called to answer for - see the Oxford English Dictionary. For a practical understanding of the yardstick by which the adequacy, sufficiency, or justice of the reasons given are to be judged one needs some amplification and that is found in Section 5 (3) which provides:-
  22. "(3) Subject to sub-section (5), for the purposes of sub-section (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."
  23. During the hearing the President flirted with the idea that Section 5 (3) provided only a necessary rather than a sufficient condition for justification, meaning that a Tribunal could not hold there to be justification unless the reason for the treatment was "both material to the circumstances of the particular case and substantial" but that even if the reason satisfied that test there was not necessarily justification. Given that the Code of Practice at para 4.6, speaking of "both material to the circumstances of the particular case and substantial" says that that means:-
  24. "..... that the reason has to relate to the individual circumstances in question and not just be trivial or minor"

    it might be thought such a very low threshold for justification was itself indicative of Section 5 (3) providing, surely, only a necessary condition rather than a sufficient one. Were the condition to be merely necessary Tribunals would have been able, as many would applaud, to adopt a broad approach to justification based on their views, as "the Industrial jury", of the substantial merits of the case rather as is required of them under s. 98 (4). However, we must recognise that Section 5 (3) provides that the treatment "is justified" if the condition is met, not that it "can" or "may" be. It thus seems, in the category we are dealing with, that the condition stipulated in Section 5 (3) is both necessary and sufficient. As the Code has to be taken into account - Section 53 (6) or 53A (8) - then whatever one might think about the lowness of such a threshold, (lower, it might be thought, than the word "substantial" would usually indicate), if the reason for the treatment relates to the individual circumstances in question and is not just trivial or minor then justification has to be held to exist in the category of case which we are dealing with, namely that in which no Section 6 duty falls upon the employer. This is not a conclusion we reach with enthusiasm but as the language of the domestic statute is clear (and no reference has been made to Community law) the remedy for the lowness of the threshold, if any is required, lies in the hands of the legislature not of the Courts.

  25. The other category, where s. 5 (1) is being considered but where there is also a Section 6 duty on the employer, requires the satisfaction of a further condition before justification within s. 5 (1) (b) can be held to exist. Section 5 (5) provides:-
  26. "(5) If in a case falling within sub-section (1), the employer is under a Section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under sub-section (3) unless it would have been justified even if he had complied with the Section 6 duty."
  27. The Section 5 (3) condition is still necessary in this category but it is now not sufficient as the further requirement of Section 5 (5) also needs to be satisfied.
  28. As for the reference in Section 5 (3) to "material to the circumstances of the particular case", the EAT has held that the relevant circumstances include the circumstances of both the employer and the employee - see Baynton -v- Saurus General Engineers Ltd [1999] IRLR 604. That, we respectfully agree, is plainly right and at least one of the examples given in the Code so suggests. It is of a person who has psoriasis, a skin condition, being rejected for a job modelling cosmetics on some part of his body which was thus disfigured. The example plainly takes account of the particular circumstances of the employer - his need to have an attractive model for his product - as making the applicant's appearance incompatible with the purpose of the work on offer and hence justifying his rejection.
  29. (iii) A balancing of interests

  30. In Baynton supra the EAT preferred a submission that in applying a test of justification under Section 5 (3) a Tribunal had to carry out a balancing exercise between the interests of the disabled employee and the interests of the employer. We have already noted that the "circumstances of the particular case" referred to in Section 5 (3) can include the employer's circumstances. Whilst we would not preclude some balancing exercise, the comparatively limited requirements of Section 5 (3) are to be borne in mind. It does not require a wider survey of what is reasonable having regard to specific features such as is found in Section 6 (1) and Section 6 (4). Under Section 5 (3) all that is material is whether the reason for the treatment is "both material to the circumstances of the particular case and substantial" which, under the Code, as we have cited, means that the reason has to relate to the individual circumstances in question and not just be trivial or minor.
  31. (iv) The Employer's knowledge of the disability for the purposes of Section 5 (1) (b)

  32. O'Neill -v- Symm & Co. Ltd [1998] IRLR 233 EAT appears to conclude that there cannot be some less favourable treatment of a person by an employer within Section 5 (1) (a) of the 1995 Act being properly held to be for a reason that relates to that person's disability unless the employer has knowledge of the disability "or at least the material features of it as set out in Schedule I of the Act" - see O'Neill supra at paras 35, 46 and 47.
  33. We would hesitate before adopting that view. Firstly, its adoption, if Mr Linden's argument on behalf of Heinz in this case is a guide, would, we fear, lead in many cases to hair-splitting medical evidence. We were addressed on whether CFS was a physical or mental condition or some combination of the two, was it psychosomatic, was it clinically well-recognised, was it long-term? One can readily imagine cases in which, if detailed knowledge were to be relevant as O'Neill was argued to require, there would need to be medical evidence as to the labels which could be attached to this or that symptom or aggregation of symptoms as a person's condition deteriorated or improved. We cannot think such an approach was within the legislature's broad intendment.
  34. Secondly, the conclusion arrived at in O'Neill was based partly on a comparison between the legislative provisions relating to disability discrimination and those relating to other forms of discrimination, a comparison which, as Clark -v- Novacold has since held, can be misleading.
  35. Thirdly, O'Neill adopted the reasoning in Del Monte Foods -v- Mundon [1980] IRLR 224 which states that for there to be a dismissal having as its only or principal reason a reason connected with woman's pregnancy the employer would have to know - p 236 - ".... the facts alleged by the employee as grounding the reason and also to know or believe that those facts relied on are connected with the woman's pregnancy". The observation was obiter as in Del Monte the reason for the dismissal was pregnancy and not a reason connected with it but, in any event, the conclusion was, it seems to us, less than obvious. The 1978 Act that was being construed in Del Monte did not provide that the connection between the pregnancy and the dismissal should be adjudged subjectively, through the eyes of the employer, so presumably it was to suffice if, objectively regarded, there was such a connection, whether or not it featured in the employer's mind. If a woman was, for example, sacked for repeatedly falling faint one morning over the machinery at which she worked or over her food production line, would she not, objectively regarded, have been dismissed for "a reason connected with her pregnancy" if she was able to demonstrate at the hearing that it had been her pregnancy that had made her faint, even if both she and the employer had thought at the time that she had fainted because she had been out clubbing too late the night before?
  36. If Del Monte is vulnerable, then so must be O'Neill. Switching from pregnancy to disability, and without being, we hope, too far-fetched, one can imagine, for example, a postman or messenger who, at his engagement and for a while afterwards, successfully conceals the fact that he has an artificial leg and can walk only for short distances at a time. He may later be dismissed for a conduct or capability ground, namely that he had proved to be unacceptably slow in making his rounds, but still without his disability being spotted. His slowness could have been taken by the employer to have been by reason of idleness or absenteeism. If, however, the employee were then able to show that his slowness was by reason of his having an artificial leg then, as it seems to us, he would, in such a case, have been treated less favourably "than others to whom that reason does not apply" (namely, as Clark – V - Novacold requires, less favourably than other employees who did their rounds at an acceptable pace). Moreover he would have been so treated for a reason - unacceptable slowness - which related to his disability. That, it seems to us, would be the case whether or not the employer ever knew before the dismissal that the reason for the slowness was that the employee was disabled. The employee would, as it seems to us, have been discriminated against within the Act even if the employer had assumed that the slowness was attributable only to laziness or absenteeism. As another example, one might imagine a secretary dismissed because he or she, despite repeated training, persisted in typing hopelessly misspelt letters, yet without the employer or, perhaps, even the employee knowing that the reason for the errors was not ignorance or carelessness but dyslexia.
  37. As was the case with the pregnancy provision considered in Del Monte, there is no language in Section 5 (1) that requires that the relationship between the disability and the treatment should be adjudged subjectively, through the eyes of the employer, so that the applicable test should be the objective one of whether the relationship exists, not whether the employer knew of it. Indeed, unless the test is objective there will be difficulties with credible and honest yet ignorant or obtuse employers who fail to recognise or acknowledge the obvious. It is to be noted, too, that the provisions as to knowledge in Section 6 (6) are not of general application but are limited to the effect of Section 6.
  38. The phrase, "which relates to" in the expression, in Section 5 (1) (a), of "for a reason which relates to the disabled person's disability" widens the description of the reasons which may be relevant beyond what the case would have been had the Act said "by reason of ... the disability". As we see it, the expression may include a reason deriving from how the disability manifests itself even where there is no knowledge of the disability as such. This, we think, opens no floodgates but it does require employers to pause to consider whether the reason for some dismissal that they have in mind might relate to disability and, if it might, to reflect on the Act and the Code before dismissing. There is, in our judgment, no need to imply into the statute a requirement not expressly present, namely that the employer should know of the disability as such or as to whether its material features fell within or without Schedule 1 of the 1995 Act. It may be that O'Neill does not, in any case, go that far. This is not to say, though, that such knowledge or its absence may not be highly material to justifiability under Section 5 (1) (b) or Section 5 (2) (b) or as to the steps to be considered or taken under Section 6 - see also Section 6 (6) (b).
  39. (v) A consequence of Section 5 (5)

  40. The Employment Tribunal here specifically held that it did not need to consider Section 5 (2) or Section 6 of the Act. We mention in passing as a cautionary measure what can be, in some cases, a consequence of such self-denial.
  41. If a Tribunal holds (without regard to Section 6) that some less favourable treatment which falls within Section 5 (1) (a) is justified within Section 5 (1) (b) and Section 5 (3) it may feel that it need not consider Section 6. However, failure to do so might vitiate its decision. The case might have been that had it considered Section 6 it would have seen that the employer was under a Section 6 duty and, moreover, that such duty had not been complied with and that such failure under Section 6 was not itself justified under Section 5 (3). In such a case a fully reasoned decision on justification would have required the Tribunal to have considered whether the treatment would still have been justified within Section 5 (1) (b) even if the employer had first complied with the Section 6 duty falling upon him - Section 5 (5). A failure to consider Section 6 could thus vitiate what at first sight would have appeared to be a more simple conclusion under Section 5 (1). However, Section 5 (5) does not appear to work the other way about; in other words, if a treatment is held to be unjustified under Section 5 (1) independently of any Section 6 duty (as was the case before us) there would seem to be no obligation upon the Tribunal to go to reflect on whether or not the treatment would still have been unjustified had a Section 6 duty both existed and had been complied with. Wherever a Tribunal is moving towards a view that a treatment is justified within Section 5 (1) (b) it thus behoves it to reflect upon Section 6 by way of Section 5 (5) although, conversely, if it is clear to it that the treatment is unjustified then that extra reflection is unnecessary.
  42. C. Disability Discrimination; The medical position in Mr Kenrick's case

  43. Although we have touched on this when dealing with unfair dismissal, it would be as well if we set out more fully some of the facts found in relation to disability. Mr Kenrick began work for Heinz in 1979. He was a process worker. He had an exemplary work record but became ill in 1996. His condition, variously diagnosed, became worse. Full medical certificates were supplied. He was seen by his own GP and by a Consultant. In late July 1996 he saw Dr MacIntyre, a doctor who was not an employee of Heinz but was retained by them to supply medical services and who advised them. Mr Kenrick's back, testes and kidney had by this time been thought to be possible causes of his difficulties. X-rays eliminated the kidneys as the source of his troubles but his back then seemed to be more culpable. He was referred to a consultant orthopaedic surgeon. He was also referred to a consultant physician and gastroenterologist. He had pains and felt weary. Arthritis was next suspected. Mr Kenrick could not concentrate. Dr MacIntyre took the view that he would not resume work before January 1997. In February 1997 Mr Kenrick was advised, as we have mentioned above, that he was running out of contractual sick pay entitlement. Mr Kenrick saw Mr MacIntyre again, who then wrote to the consultant orthopaedic surgeon and to the gastroenterologist. Ms McGauley, Heinz's employee relations manager, was interested to establish at what point Mr Kenrick was likely to be able to return to work. Mr Kenrick, about this time, read a book on CFS. He told the gastroenterologist he thought his symptoms were consistent with it. The gastroenterologist referred him back to his GP. The gastroenterologist thought there was no organic disease and reported to Dr MacIntyre that Mr Kenrick himself thought he had CFS. Dr MacIntyre saw Mr Kenrick again, on the 28th February 1997. Mr Kenrick said that a heart scan was being arranged for him in March, that he was due to see the orthopaedic surgeon on the 3rd April 1997 and that he thought he had CFS. Dr MacIntyre considered that Mr Kenrick would work again. On the same day Mr Kenrick reported to Heinz that he would not at that point of time be able to manage any job. He mentioned the impending heart scan and visit to the orthopaedic surgeon. Ms McGauley (as held by the ET):-
  44. "Informed the applicant that as there was no indication of a date of likely return to work she would give him one month in order to obtain further information but if circumstances did not change and the applicant could not return to work he would be dismissed."
  45. On the 1st March 1997 Mr Kenrick asked his own GP, who had taken the view that he was suffering from depression, if he could be referred to a consultant who dealt with CFS. The heart scan came and went without revealing any cause of his symptoms. The orthopaedic surgeon arranged for a CT scan in case a tumour on the spine was present. On the 20th March 1997 the applicant's GP wrote to Dr MacIntyre saying:-
  46. "Mr Kenrick is awaiting for an appointment to see Dr Wiliamson to see if he is suffering from ME [i.e. CFS] and we will have to wait until we get an opinion from Dr Williamson. Considering his age I think he will be able to work in the future but I do not know how long it will take for him to get back to normality...."
  47. Dr MacIntyre took the view that Mr Kenrick would ultimately return to work but that he could not say when. There were yet further tests on Mr Kenrick. On the 1st April 1997 the gastroenterologist wrote to him:-
  48. "I am quite convinced you do not suffer from organic disease and that your symptoms though real, are manifestation of pyschosomatic disease. I urge you strongly to consult your General Practitioner and request an appointment to see a psychiatrist. I sent Dr MacIntyre a copy of this letter. I am sorry there is nothing further I can do to help."
  49. Mr Kenrick saw Dr MacIntyre once again. Dr MacIntyre noted that Mr Kenrick was not then, on the 3rd April 1997, fit to return to work. Mr Kenrick had, at his own cost, arranged to see an immunologist, Dr Williamson, on the 28th April 1997 to see if he had CFS, as he thought he had. The CT scan on his spine had been arranged for the 20th April 1997. An interview took place attended by Dr MacIntyre, Miss McGauley, Mr Kenrick's Line Manager (Mr Malloy), Mr Kenrick and Mr Kenrick's Union representative. Mr Kenrick again said that he thought he had CFS and said also that Heinz should wait until he had seen the immunologist before acting. Mr Kenrick was dismissed. Heinz's letter of the following day, the 4th April, says, inter alia:-
  50. "At the interview on the 3rd April you advised that you were still in pain and did not feel able to return to work in any capacity. You felt that you were not progressing, and in fact had deteriorated further, you had no indication that you would be able to return in the immediate future ...... You also showed us a further letter at the interview from specialists suggesting that you were psychosomatic, but you felt yourself this was not the problem and were pursuing further medical advice from other specialists, e.g. immunologists. After considering your situation we felt it was unlikely that you would return in the immediate future and regrettably, already having held your job open since the 4th June 1996 i.e. 10 months, your department were unable to hold your job open any longer and as such your employment was terminated. You will be paid 12 weeks in lieu of notice and any other contractual entitlements, e.g. holidays."
  51. Mr Kenrick saw the immunologist, Dr Williamson, on the 28th April 1997. The immunologist confirmed that he had all the symptoms of CFS but that further tests were needed in order to rule out other possibilities. On the 6th August 1997 the immunologist confirmed, after these tests, that Mr Kenrick had CFS. At the hearing before the Employment Tribunal Mr Kenrick gave evidence that he was not fit to work and still had difficulty with regards to concentration. The Tribunal was satisfied that the applicant did have CFS. As we have mentioned, Heinz conceded during the course of the hearing at the Employment Tribunal that Mr Kenrick was suffering from CFS at the time of dismissal and that CFS is a disability for the purposes of the Disability Discrimination Act 1995.
  52. D. The Appellant's arguments

  53. With that medical background in mind we turn to Mr Linden's attack on the Tribunal's reasoning which may be dealt with under five headings:-
  54. (i) Comparators and comparison.
    (ii) Failure to refer to the Code.
    (iii) The balancing of the needs of the employer.
    (iv) Knowledge of the disability.
    (v) Justification

    (i) Comparators and comparisons

  55. The Employment Tribunal held:-
  56. "The appropriate comparators for use with regard to the exercise were a person who could have been off work for the same length of time for nondisablement reason. Such comparator would possess all the characteristics of the Applicant save for the fact of disability and therefore a comparison between them would prove whether the difference in treatment was due to the Applicant's disability. The Tribunal concluded that using such a comparator the Respondents would have acted differently in the case of someone who was not suffering from disability. A decision would not have been taken without adequate medical evidence or where evidence would be provided within three to four weeks. The reason for the dismissal was therefore related to disability and the Tribunal was satisfied in the circumstances that the Applicant had been treated less favourably on grounds of disability and that there was no justification for this difference in treatment in the circumstances."
  57. As Clark -v- Novacold shows, the comparator necessary to determine whether Mr Kenrick was less favourably treated within the meaning of Section 5 (1) (a) was not a person of the kind there described by the Tribunal but a person who attended to work in the ordinary way and hence who afforded his employer no grounds for his dismissal for capability. However, as, even using the comparator it did, the Tribunal concluded that there had been less favourable treatment on grounds of disability, we find it impossible to suppose, having regard to the facts which the Tribunal found, that they would or might have concluded otherwise than they did had the Clark -v- Novacold comparison been applied. As Mr Ward neatly put it, on behalf of Mr Kenrick, if the Tribunal could hold, as they did, that Mr Kenrick was less favourably treated than someone off work for as long as he had been but who was without a disability, then, a fortiori, he must surely have been treated less favourably compared with someone who had not been off work at all. Through no fault of its own, the Tribunal could not have had the benefit of Clark -v- Novacold in the Court of Appeal and, although that case makes now impassable the precise route which the Tribunal took, they could, in our view, have arrived at no other conclusion on the facts found than that to which they did, even had they clung to the route which the Court of Appeal now maps out. We thus do not see the argument as to comparators and comparisons as assisting the Appellants.
  58. (ii) Failure to refer to the Code

  59. Mr Linden drew our attention to Ridout -v- TC Group [1998] IRLR 628 EAT where, at para 28 we find:-
  60. "However, we do criticise the Industrial Tribunal for not making specific reference to the Code of Practice. It seems to us that as the case law develops in relation to the Disability Discrimination Act, Industrial Tribunals will build up a knowledge of how the Act should be applied in practice. At this period of development it is particularly important, in my judgment, that Industrial Tribunals should also refer to the relevant provisions of the Code of Practice as they are required to do under Section 53."
  61. As Section 53 contains no requirement that the Code of Practice should be specifically mentioned in Tribunal's decisions but rather that it should be taken into account it is plain that in Ridout the ambiguous requirement that the Code should be referred to was not a requirement that the Code should invariably be specifically mentioned by Tribunals in their decisions but rather that it was to be weighed in the Tribunal's deliberations. One therefore does not illustrate a failure to respect Ridout by saying that the Code was not specifically referred to in a Tribunal's reasoning. Furthermore, the Code or specific provisions of the Code are mentioned by the Employment Tribunal in the case now before us - see para 16 of the Tribunal's Extended Reasons. We cannot assume that because one provision of the Code is specifically mentioned that the rest of it was not in mind, nor, because a factor was not expressly mentioned, that it cannot have been taken into account - see per Lord Russell of Killowen in Retarded Children's Aid Society -v- Day [1978] IRLR 128 CA. We detect no error of law under this heading.
  62. (iii) The balancing of the needs of the Employer

  63. Where it is only discrimination within Section 5 (1) which is being considered (as was the case here, given that the Tribunal did not turn to Section 6) such balancing as is required under Section 5 (3) in the course of determining whether the treatment of the claimant has been justified is, as we have explained, to be with respect only to the limited issues of whether the reason for the treatment was related to the individual circumstances in question and not just trivial or minor.
  64. In the course of their decision the Tribunal at several points show an awareness of the needs and practice of the employer. They refer to Heinz's need to know when Mr Kenrick would return to work and of there being no general practice at Heinz of keeping employees "on the books" for 12 months but that decisions as to future employment were generally taken after only 36 weeks' absence. The Tribunal acknowledged, as Heinz had, that it was not easy to accommodate Mr Kenrick in circumstances where he could not undertake a full day's work. In holding that:-
  65. "The Tribunal was [not] satisfied that any satisfactory reason for the difference in treatment was put forward by [Heinz] either on grounds of cost or time"
  66. The Tribunal acknowledged that such grounds, had they been advanced, would have ameliorated Heinz's position on the justification issue. Insofar as some balancing was required it cannot be said that the Tribunal recognised only the factors on one side of the scales. They concluded:-
  67. "In resolving the issue of justification the Tribunal reminded itself that justification required a reason that was both material to the circumstances of the particular case and substantial."
  68. That, of course, was precisely what the Tribunal should have reminded itself of and we see no error of law under this heading.
  69. (iv) Knowledge of the disability

  70. The relevant disability was CFS, a condition which Mr Kenrick was not diagnosed as having until the 6th August 1997, some while after he had been dismissed. Mr Linden, relying upon O'Neill supra, asserts that even assuming Mr Kenrick was treated less favourably than others (namely those able to do their jobs) he could not have been so treated for a reason which related to his disability within Section 5 (1) (a) as that would have required Heinz to have had knowledge of his disability by the time of the dismissal, which knowledge it did not have.
  71. However, the Tribunal held that Heinz had been made aware by Mr Kenrick as early as the 28th February 1997 of the symptoms that he was suffering from. Dr McIntyre, it held, knew he was suffering from symptoms falling within Schedule 1 of the Disability Discrimination Act 1995. The symptoms, it held, had been listed to him by Mr Kenrick. The Employment Tribunal held:-
  72. "In those circumstances the Tribunal was satisfied that the Respondents had all the information which they required save for the fact that the condition from which the Applicant was suffering was not identified by name and confirmed by a medical officer until shortly after his dismissal. The Tribunal was satisfied in those circumstances that the Respondents had knowledge of the disability which the Applicant had at the time when the decision was taken to dismiss him."
  73. The Tribunal arrived at that conclusion on the footing that O'Neill supra was correct. The Tribunal's holdings on the facts cannot be said (and are not said) to have been perverse. Mr Linden's argument, relying on O'Neill, is that, consistently with that authority, the employer, before he can be held to have discriminated under Section 5 (1), must know of the fact of "the disability or at least the material features of it as set out in Schedule 1 of the Act" - see O'Neill para 47. But that was held; the Tribunal specifically held, as we have mentioned:-
  74. "Dr MacIntyre knew that the Applicant was suffering from symptoms falling within Schedule I ...."
  75. On the facts found it is not possible (nor is it attempted) to distinguish between Dr MacIntyre's knowledge and Heinz's.
  76. In the light of our doubts as to O'Neill expressed above it may be that even less specific knowledge of the manifestations, or of the label properly to be applied to the manifestations, of Mr Kenrick's disability would have sufficed but, even assuming, in Heinz's favour, that O'Neill is right, given the facts as found we would have to conclude that such knowledge as the Tribunal held Heinz to have sufficed in law to entitle the Tribunal to conclude that Mr Kenrick was dismissed ("treated less favourably ..") for a reason which related to his disability. We add that Mr Linden conceded in the course of argument that, on the facts as found, the employer, by the time of the dismissal, knew of the symptoms which, a little later, were diagnosed as being CFS. In our judgment Mr Linden's attack under this heading thus fails.
  77. (v) Justification

  78. As for justification, the only justification which the Tribunal considered was that within and for the purposes of Section 5 (1) (b). We say that because the Tribunal specifically said that it did not need to consider Section 5 (2) and Section 6. In relation to justification the Tribunal held:-
  79. "The Tribunal was satisfied that it was [Heinz's] practice in cases of long-term ill health absence to take a decision in liaison with the employer's General Practitioner and an external consultant. Notwithstanding that Dr MacIntyre was satisfied that the Applicant was absent on grounds of genuine illness and that symptoms had been specified and that a consultant's appointment was arranged a matter of 3 weeks after the final interview hearing and notwithstanding that [Heinz's] dismissing officer, Mr Malloy, was conversant with company practice and procedure, [Heinz] nevertheless went ahead and dismissed the applicant."
  80. The Tribunal later held:-
  81. "The Respondents acknowledge, in the course of evidence, that although not easy to accommodate the Applicant in circumstances where he could not undertake a full day's work by reason of his condition, it might have been possible to accommodate him in some other lesser capacity within the Respondents' undertaking."
  82. A little later they held, referring to the immunologist who diagnosed CFS :-
  83. "In the circumstances the Tribunal accepted the evidence of Dr Williamson. It was plain from his assertions that part-time work would have been possible with support from the Respondents in the circumstances. The Tribunal was not satisfied that the haste with which the Respondents had reached a date upon which to decide upon dismissal was necessary or appropriate in the circumstances."
  84. Later still the Tribunal continued:-
  85. "The Tribunal was not entirely satisfied that there was discussion about part-time and lighter duties and offers of alternative engagement between February and April 1997. The Tribunal considered that Ms McGauley failed to apply a reasonable approach both regard to this aspect and regard to her failure to advise waiting until Dr Williamson had seen the Applicant [which] were crucial [factors] in the Respondent's arguments."
  86. It was upon such findings that the Tribunal concluded:-
  87. "In resolving the issue of justification the Tribunal reminded itself that justification required a reason that was both material to the circumstances of the particular case and substantial. The Tribunal was [not] satisfied that any satisfactory reason for the difference in treatment was put forward by the Respondents either on grounds of cost or time. In the circumstances, therefore, the Applicants claim under Section 4 (2) (b) and Section 5 (1) of the 1995 Act succeeded on the balance of probabilities."
  88. We cannot say there was no material before the Tribunal to support its conclusion that Mr Kenrick's less favourable treatment was not justified. Mr Linden refers us to paragraph 6.21 of the Code of Practice where one finds:-
  89. "6.21 Dismissal - including compulsory early retirement - of a disabled person for a reason relating to the disability would need to be justified and the reason for it would have to be one which could not be removed by any reasonable adjustment.
    It would be justifiable to terminate the employment of an employee whose disability makes it impossible for him any longer to perform the main functions of his job, if an adjustment such as a move to a vacant post elsewhere in the business is not practicable or otherwise not reasonable for the employer to have to make."
  90. Although that passage, by reference to "reasonable adjustment" seems to be dealing with a case within Section 6 ("Duty of employer to make adjustments") or with a case in which Section 5 (5) is relevant, and thus may be ranging beyond the simple Section 5 (1) case we are considering, it would seem to be implicit within that passage that an employer who does not adequately consider, for example, alternative employment or shorter hours, may find that the dismissal he has put into effect is held to be not justified. Presumably that conclusion would be arrived at on the basis that a reason for the dismissal such as continuing incapability would not be material to the circumstances so long as part time or lighter duties might have fitted the bill.
  91. Although we do not pretend that it would not have been better if the Tribunal had spelled out its reasoning as to justification more fully, if we confine ourselves, as we must, to inquiring whether there is here some error of law, we say only that we detect no error in law in the Tribunal's conclusion on this part of the case.
  92. E. Remission

  93. We mentioned earlier that, having set aside the decision as to unfair dismissal, then, subject to one point, we would remit the subject of unfair dismissal to the Employment Tribunal. The one point is this; if, after considering the point, Mr Kenrick's advisers come to the conclusion that it is monetary relief only which he seeks and that there is no head under which he would be likely to recover by way of monetary remedy to any substantial extent for unfair dismissal in excess of what might be so recovered for disability discrimination, then the remission for unfair dismissal may be likely to be pointless or at least disproportionate in terms of costs and delay. We therefore do not make an immediate order for such remission but shall order remission of the subject of unfair dismissal only if, not later than 21 days after being sent a transcript of this judgment, Mr Kenrick's advisers request such a remission by letter sent to the Employment Appeal Tribunal (with a copy to Heinz's Solicitors). If there is to be such a remission it should if possible be to the same Tribunal as before.
  94. F. Our conclusion as to Disability Discrimination

  95. Whilst we have found no error of law in the Tribunal's decision as to disability discrimination we would not wish to leave the case without some expression of sympathy for Heinz's position. Heinz has not, on the facts of this case, been a "bad" employer in any moral sense. It responded to Mr Kenrick's long and indefinite absence with real patience; it frequently consulted Mr Kenrick, it listened to him and his Union Representative. It repeatedly made Dr MacIntyre's services available to him. Whether or not the Employment Tribunal, on remission of unfair dismissal, ultimately finds the decision fair or unfair, (which will be entirely a matter for them) Heinz's decision to dismiss could not, in our view, be described as harsh. For all that, it has been held to be guilty of disability discrimination, a finding which may attract some opprobrium to the perpetrator and which Heinz has accordingly very properly sought to resist. It has failed in that task not because it is a bad employer - there is no reason to think it is - but because, at a stage when the difficult disability discrimination legislation was in its infancy, it failed to give such full consideration as is now necessary to the possibility of disability and to discrimination by reason of it. That legislation was, well after the time at which Heinz was grappling with the unfolding facts in 1997, described in Clark -v- Novacold supra by Counsel as revolutionary and described by the Court of Appeal itself as being unusually complex. It is hard to be very critical of an employer faced in early 1997 not only with such legislation but also with so nebulous a disability as CFS. The legislation has also been described, rightly in our view, as passed in order to change the attitudes and behaviour of
  96. employers - British Sugar plc -v- Kirker [1998] IRLR 624 EAT; it may fairly be said that Heinz's principal shortcoming in 1997 was in not changing fast enough.

  97. We dismiss the appeal so far as it concerns disability discrimination.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKEAT/1999/1082_98_0312.html