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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Solloway v. HPC Engineering Plc [2001] UKEAT 1192_99_2304 (23 April 2001) URL: https://www.bailii.org/uk/cases/UKEAT/2001/1192_99_2304.html Cite as: [2001] UKEAT 1192_99_2304 |
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At the Tribunal | |
On 11 January 2001 | |
Before
THE HONOURABLE MR JUSTICE CHARLES
LORD GLADWIN OF CLEE CBE JP
MISS A MACKIE OBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR ROBIN WHITE (of Counsel) Instructed By: Messrs Hamnett Osborne Tisshaw Solicitors 48-52 South Road Haywards Heath West Sussex RH16 4LA |
For the Respondent | MR DAVID GRIFFITH-JONES (One of Her Majesty's Counsel) Messrs Wilsons Solicitors Steynings House Chapel Place Fisherton Street Salisbury Wiltshire SP2 7RJ |
MR JUSTICE CHARLES:
Introduction
"1 The Applicant was not discriminated against, contrary to the Disability Discrimination Act 1995.
2 The Respondent concedes that the Applicant was unfairly dismissed.
3 The Tribunal finds an 80% probability that the Applicant would have been dismissed in any event had a fair procedure been followed.
4 By consent it is ordered that the Respondent pay to the Applicant £1,873.00
5 The recoupment regulations do not apply."
The issues raised on this appeal
"The appeal has two aspects:
(i) Failure to have regard to paragraph 4.62 of the "Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have a disability" which deals directly with the circumstances of an officer of an employer being made aware in confidence of an employee's disability.
(ii) Criticisms of certain findings of fact by the Tribunal in the light of the evidence received by them."
The challenge to the findings of fact
"took no direct part in the selection process".
It was said that this was contrary to her written statement. The purpose of this challenge was to enable the Appellant to assert that the findings of the Employment Tribunal (i) that the persons who selected the Applicant for redundancy were unaware of the fact that she suffered from multiple sclerosis, and (ii) that her disability was not taken into account in deciding to make her redundant as the relevant managers did not know that she suffered from multiple sclerosis, were flawed.
The second aspect of the appeal – failure by the Employment Tribunal to have regard to paragraph 4.62 of the Code.
(a) The Employment Tribunal could not properly have considered a claim based on paragraph 4.62 of the Code because it was not a claim that was made (or pleaded) before them. In this context the Respondent referred us to and relied on the following authorities: Kumchyk v Derby County Council [1978] ICR 1116 (and in particular at 1123 B/G); Chapman v Simon [1994] IRLR 124 (in particular the second paragraph of the headnote and paragraphs 33 and 44 of the judgments); Clark v Novacold Ltd [1999] ICR 951 (in particular at 965 F to 966 H and especially 966 E) and Smith v Zeneca [2000] ICR 800 (in particular paragraphs 22, 43 to 47 and 52).
(b) Further or alternatively we should not allow the Appellant to advance this new ground on appeal. In this respect the Respondent relied on Jones v Governing Body of Burdett Coutts School [1999] ICR 38 (in particular at pages 43/44). In this context we have also had regard to Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719.
(c) In any event paragraph 4.62 of the Code was not relevant to, and thus did not apply to, the Applicant's claim under Section 5(1) DDA.
Some background
(a) she had received no warning or consultation;
(b) she had longer service than others who were not selected, and
(c) she believed that her multiple sclerosis was a factor in the Respondent's decision to select her for redundancy.
"It is appreciated that the Applicant has, in her grounds of complaint, raised the allegation that her illness was a factor in the Respondent deciding to select her for redundancy and will, therefore, form part of the evidence to be presented to the Tribunal at the hearing on 15 June. Accordingly, the Respondent is prepared to agree to the proposed amendment."
(i) whether any, and if so what, "arrangements" placed the Applicant at a "substantial disadvantage" under Section 6(1) DDA;
(ii) whether there were any, and if so what, "reasonable steps" which the Respondent ought to have taken to prevent such "arrangements" having that effect, again under Section 6(1) DDA;
(iii) whether the Respondent's failure to take any "reasonable steps" was "justified" in the circumstances; and
(iv) whether any such complaint was in time and if it was not whether the Employment Tribunal should exercise its discretion to permit it to be heard (see paragraph 3 of Schedule 3 to the DDA).
Paragraph 4.62 of the Code
"If an employer's agent or employee (for example, an occupational health officer, a personnel officer or line manager) knows in that capacity of an employee's disability, then the employer cannot claim that he does not know of that person's disability, and that he is therefore excluded from the obligation to make a reasonable adjustment. This will be the case even if the disabled person specifically asked for such information to be kept confidential. Employers will therefore need to ensure that where information about disabled people may come through different channels, there is a means – suitably confidential – for bringing the information together, so the employer's duties under the Act are fulfilled.
[Examples are then given]."
"The Act says that employers are responsible for the actions done by their employees in the course of their employment. In legal proceedings against employer based on actions of an employee, it is a defence that the employer took such steps as were reasonably practicable to prevent such actions. It is not a defence for the employer simply to show the action took place without his knowledge or approval. Employers who act through agents will also be liable for the actions of their agents done with the employer's express or implied authority.
[An example is then given]."
"53(6) 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."
There is no express provision in the DDA setting out the consequences of a failure of a court or tribunal to take such a provision of a Code into account. Further in one sense (and perhaps a rigid one) this provision is circular because it only applies when it appears to a court or tribunal that a provision of a Code is relevant and it is therefore at least arguable that if a court or tribunal has reached this conclusion it has inevitably taken that provision into account.
The Respondent's first point
The Respondent's second point
The Respondent's third point
Overall decision