![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Heinz Co Ltd v Kenrick [1999] UKEAT 1082_98_0312 (3 December 1999) URL: https://www.bailii.org/uk/cases/UKEAT/1999/1082_98_0312.html Cite as: [1999] UKEAT 1082_98_0312, [2000] ICR 491, [1999] UKEAT 1082_98_312, [2000] IRLR 144 |
[New search] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2000] ICR 491] [Help]
At the Tribunal | |
On 29 October 1999 | |
Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR P DAWSON OBE
MR P A L PARKER CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
RESERVED JUDGMENT
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) 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."
A. Unfair Dismissal
"(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."
B. Disability Discrimination: General considerations
(i) Comparison with other legislation
"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)
"(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."
"..... 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.
"(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."
(iii) A balancing of interests
(iv) The Employer's knowledge of the disability for the purposes of Section 5 (1) (b)
(v) A consequence of Section 5 (5)
C. Disability Discrimination; The medical position in Mr Kenrick's case
"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."
"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...."
"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."
"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."
D. The Appellant's arguments
(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
"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."
(ii) Failure to refer to the Code
"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."
(iii) The balancing of the needs of the Employer
"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"
"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."
(iv) Knowledge of the disability
"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."
"Dr MacIntyre knew that the Applicant was suffering from symptoms falling within Schedule I ...."
(v) Justification
"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."
"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."
"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."
"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."
"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."
"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."
E. Remission
F. Our conclusion as to Disability Discrimination
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.