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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gate Gourmet v. Jangra [2000] UKEAT 547_99_1212 (12 December 2000) URL: https://www.bailii.org/uk/cases/UKEAT/2000/547_99_1212.html Cite as: [2000] UKEAT 547_99_1212 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
LORD DAVIES OF COITY CBE
MR P A L PARKER CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellants | MR C SAMEK (of Counsel) Messrs Clarkes Solicitors Great Western House Station Road Reading Berkshire RG1 1JX |
For the Respondent | MR T ALLOWAY (of Counsel) Messrs Shuttani-Paul Solicitors 33-35 South Road Southall Middlesex UB1 1SW |
JUDGE PETER CLARK: This is an appeal by the respondent employer before the London (South) Employment Tribunal sitting on 11th and 12th February 1999 against that tribunal's reserved decision promulgated with extended reasons on 12th March 1999 upholding the applicant, Mrs Jangra's complaints of both unfair dismissal and disability discrimination.
The facts
"This right-handed patient continues to have significant pain in whole of her right arm and significant swelling and pain of right little finger. She has been seen by consultant orthopaedic surgeon at Hillingdon Hospital who suspects Sudeck's Dystrophy. I have also referred her to Professor Maini at Charing Cross hospital for second opinion. She has tried various Ndaids, analgesics, local rubs and multiple complimentary therapy without success. I do not anticipate her to return to work in the near future. She is still currently under hospital physiotherapy and acupuncture."
The Employment Tribunal decision
It was common ground that the respondent had a potentially fair reason for dismissal, capability. The question for the tribunal was whether the respondent had acted reasonably under s.98(4) of the Employment Rights Act 1996.
As to that question they found:
(1) that the dismissal hearing held on 18th September 1997 had been convened far too hastily. They rejected the respondent's reason for that, namely that senior managers were unusually busy at the time because of a merger. Secondly, they held that the applicant ought to have been sent a letter making it clear that she was being invited to a meeting at which the termination of her employment was possible so that she would be prepared for it. Thirdly, there was no need to make a final decision at that meeting. The decision to dismiss was, in these circumstances, unfair.
(2) that the appeal procedures did not cure the defects of the dismissal procedures.
The tribunal found:
(1) that the applicant was a disabled person within the meaning of s.1 of the Disability Discrimination Act 1995 ['DDA'] at the date of dismissal. The disability from which she was suffering was Sudeck's Dystrophy. Although the question of disability was put in issue before the tribunal, that finding is not challenged in this appeal.
(2) that s.5 DDA created two separate bases for a discrimination complaint. S.5(1), less favourable treatment and s.5(2), failure to comply with a s.6 duty to make suitable adjustments. Both are subject to the employer's defence of justification. That analysis is not controversial.
(3) The provisions of s.6 apply to dismissal cases. That proposition was based on the EAT decision in Clark v Novacold [1998] IRLR 420. It has since been disapproved by the Court of Appeal in Novacold [1999] IRLR 318. Mr Alloway does not seek to uphold that misdirection. Accordingly the appeal against the tribunal's finding of a breach of s.5(2) DDA succeeds by concession.
(4) Faced with a conflict of judicial authority in the EAT between Novacold and British Sugar v Kirker [1998] IRLR 624, the tribunal chose to follow the approach in the latter case on the question of comparators for the purposes of s.5(1) DDA. The tribunal directed themselves that the question was whether the applicant was less favourably treated than other employees where the reason for her treatment – a reason related to her disability – did not apply to those other employees. Answering that question the tribunal found that the respondent discriminated against the applicant by dismissing her. The dismissal was for a reason which related to her disability and was less favourable treatment than of others to whom that reason did not or would not apply. S.5(1)(a) read with s.4(2)(d) had been satisfied. They went on to make a similar finding under s.5(2), but as indicated under (3) above that alternative finding is not supported in this appeal.
(5) Justification The tribunal found (extended reasons, paragraph 33) that the issue of justification was essentially an issue about dismissal being treated as the only course open at the time. "It is therefore an issue of the timing of the dismissal". They found that there was no evidence to justify the respondent's failure to wait at least a week or two after 18th September to see what would happen. Alternatively, she could have been given notice instead of summary dismissal with pay in lieu of notice so that the respondent retained her in employment for eight weeks and rehabilitation during her notice period could have been attempted. The respondent, the tribunal found, failed to discharge the burden of making out the justification defence.
The appeal
The substantive appeal
Mr Samek, on behalf of the respondent, does not challenge the tribunal's finding of procedural unfairness at the initial dismissal stage (reasons paragraph 35). His submission in this part of the appeal is directed to the tribunal's finding at paragraph 36 that the appeal procedures did not cure the defects of the dismissal procedure.
We have already indicated that, by concession, the tribunal's finding that the respondent was in breach of s.5(2) DDA in dismissing the applicant cannot stand. That finding is accordingly set aside.
We have earlier observed that in deciding this case on 12th March 1999 the tribunal preferred the approach of the EAT in Kirker to that in Novacold on the comparator question. On 25th March 1999 the Court of Appeal delivered judgment in the Novacold appeal [1999] IRLR 318. In giving the leading judgment of the court, Mummery LJ, at paragraph 52, posed two questions under s.5(1)(a).:
(1) was Mr Clark dismissed for a reason which relates to his disability?
(2) If so, did Novacold treat him less favourably than they would treat others to whom that reason would not apply?
Having found less favourable treatment under s.5(1)(a) DDA it is then for the employer to show that that treatment is justified, s.5(1)(b).
"Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."
S.5(5) provides:
"If, in a case falling with subsection (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 subsection (3) unless it would have been justified even if he had complied with the section 6 duty."
S.6 deals with the duty of the employer to reasonable adjustments. But we should also refer to s.53(6) DDA which provides:
"If any provision of a code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question."
"6.21 Dismissal … of a disabled person for a reason relating to the disability would need to justified and the reason for it would have to be one which could not be removed by any reasonable adjustment."
Then two examples are given:
"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 vacant post elsewhere in the business is not practicable or otherwise not reasonable for the employer to have to make.
It would be justifiable to terminate the employment of an employee with a worsening progressive condition if the increasing degree of adjustment necessary to accommodate the effects of the condition (shorter hours or work or falling productivity, say) became unreasonable for the employer to have to make."
(1) the material and substantial test under s.5(3);
(2) the interrelationship between the s.6 duty to make adjustments and justification under s.5(1)(b) provided for in s.5(5);
(3) the balancing exercise between the interests of employee and employer;
(4) the Code, and in particular paragraph 6.21.
Conclusion
(1) given that the respondent has shown a potentially fair reason for dismissal, capability, but that the dismissal was procedurally unfair in the manner found by this Employment Tribunal at paragraph 35 of the reasons, did the internal appeal cure those defects so as to render the dismissal fair overall?
(2) given that the respondent discriminated against the applicant by reason of her disability by dismissing her, contrary to s.5(1)(a) DDA, has the respondent shown that their treatment of her, the dismissal, was justified under s.5(1)(b), bearing in mind the matters to which we have earlier referred?