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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Davies v Cooper Cleaning UK Ltd [2002] UKEAT 427_02_1911 (19 November 2002) URL: https://www.bailii.org/uk/cases/UKEAT/2002/427_02_1911.html Cite as: [2002] UKEAT 427_02_1911, [2002] UKEAT 427_2_1911 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE J ALTMAN
MR B R GIBBS
MRS M McARTHUR
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MISS J HEAL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme |
For the Respondents | No appearance or representation by or on behalf of the Respondents |
HIS HONOUR JUDGE J ALTMAN
"My contract of employment contained a stated Disciplinary procedure which was not followed in the case of my dismissal. The procedure states that in instances of alleged misconduct an investigation will take place. I was not advised of this, nor were any alleged findings discussed with me."
The Employment Tribunal conducted a detailed investigation of the disability discrimination, to which we shall return, and that was recorded in the Decision. At paragraph 16 of the Decision, the only reference to consideration of contractual matters deals only with the dismissal. In the context of a finding that Mr Cooper genuinely relied upon the content of the quite strong reservations expressed by Mr Sparrow, in concluding that the Applicant would have to be removed from the ASDA Charlton branch, they go on to say that:
"17 …… It follows in our judgment that it would have been difficult to place the Applicant in any other ASDA branch"
"the reasons for the dismissal… were encompassed globally within the general proposition, namely "the customer is right", and the individual reasons making up that request from the customer we find were valid and justified."
It appears that the Tribunal themselves had purported to form an assessment of the validity of those complaints on the evidence before them, but we are driven to the conclusion that Mr Snowden, writing on behalf of Cooper UK Cleaning, the Company Secretary, appeared to be expressing the view that there was no need for any investigation. That was a clear breach of contract. We can understand, although there is no evidence of it, that an employer approaching the one-year barrier would wish to bring matters to a speedy conclusion, even at the risk of breaking good industrial relations practice and being in breach of contract, but it seems to us inevitable, on the findings of fact of the Tribunal, that there was a breach of contract in this case, for it appears to be the fact that there was a contractual entitlement to an investigation before dismissal for misconduct.
"questionable judgment skills with regard to employment of the cleaning team.
i.e. Shoplifting."
We are not sure what that refers to; we assume that it must be that one of the employees brought on to the site of ASDA was involved in some accusation that she - nothing to do with the Applicant - had been guilty of shoplifting.
"We find that none of the reasons as a matter of fact related even remotely to the Applicant's disability."
The Employment Tribunal point out that the Applicant was away from work because of ill-health at the time of dismissal, asserted by the Applicant herself as being influenza, and that there had been a conversation in which she had told her employer that she was hoping to be fit to return and be signed off by her doctor.
"If, however, the employee were then able to show
that his slowness which, as I add, led to the detriment
"…..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'."
He would have been so treated for a reason, an acceptable slowness, which related to his disability, and Ms Heal, on behalf of the Applicant, argues, that the process of reasoning that the Employment Tribunal omitted in this case, was to ask themselves not the proximate cause of the dismissal, namely the five matters alleged, but whether those aspects of conduct were themselves related to the disability of the Applicant.
"We have no doubt that the Applicant herself did not believe that she was "disabled" either within the meaning of the Act or indeed in any other way and we reject her assertion that she said something along those lines to Mr Cooper."
There again, in the Heinz case, the question that is dealt with is that it does not matter whether the employer or the employee knew. Then in paragraph 26, the Tribunal continued:
"…..so far as Mr Cooper was concerned this was by no means a case of "closing his mind to the obvious" because the problems which were arising were all in our judgment totally unrelated to the obvious problems which the Applicant has suffered over the years with her unfortunate depression; this was not for example a case where the Applicant was being criticised for being "forgetful" or moody or anything of that kind. Indeed, the matters about which Mr Cooper himself had firsthand experience in relation to the completion and handing in of the weekly rota plans; the use of swipe cards and the decisions about which employees should be retained or dismissed were all matters about which Mr Cooper was entitled to conclude the Applicant had taken conscious and deliberate decisions. In our judgment therefore the question of knowledge of the disability in the result was irrelevant to the issues which we had to determine."
It is perfectly true that that answer was not, strictly speaking, to the question as to whether or not those aspects of conduct could have been related to the disability, but it does indicate the issues that were truly before the Tribunal.