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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Greater London Authority v. Leach [2003] UKEAT 0363_03_0312 (3 December 2003) URL: https://www.bailii.org/uk/cases/UKEAT/2003/0363_03_0312.html Cite as: [2003] UKEAT 363_3_312, [2003] UKEAT 0363_03_0312 |
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At the Tribunal | |
On 6 October 2003 | |
Before
HIS HONOUR JUDGE PETER CLARK
MR S M SPRINGER MBE
MR R N STRAKER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR IAN SCOTT (of Counsel) Instructed by: Greater London Authority Legal Services Department City Hall The Queen's Walk London EC1 2AA |
For the Respondent | MR BEN COOPER (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW |
HIS HONOUR JUDGE PETER CLARK
Background
(i) unexplained absences totalling 46.5 days since April 2001;
(ii) failure to complete key tasks allocated to the Applicant. The most specific of these related to work over the weekend of 1 and 2 September 2001, when it was contended that the Applicant had absented himself from work for two periods of two and four hours, one of which was apparently to watch the England v Germany World Cup football match;
(iii) a poor attitude to colleagues in that he was rude and aggressive and failed to take instructions from, or report to, Keith Beddard.
Unfair Dismissal
(1) Did the Respondent have reasonable grounds, based on a reasonable investigation, for their genuine belief that the Applicant was guilty of the misconduct found? The Burchell test.
(2) Was the dismissal procedurally fair or unfair?
(3) Did the sanction of dismissal fall within the range of reasonable responses open to the employer? In answering that question it is not for the Employment Tribunal to substitute their own view for that of the employer.
(a) Ms Ibrahim, who, as Department Head would normally carry out the investigation into the conduct of a member of her department, which might lead to disciplinary proceedings, plainly should not have done so because she was herself the subject of a grievance taken out by the Applicant (which she investigated) and thus she could not be seen to conduct an impartial enquiry. Secondly, she was the principal witness, enquirer and prosecutor in the disciplinary proceedings. These findings, it seems to us, go both to the reasonableness of the employer's investigation and the procedural fairness of the dismissal; and
(b) dismissal was not a reasonable response to the situation with which the disciplinary proceedings were dealing.
Disability Discrimination
Section 5 (1) DDA
(i) what was the reason for the Applicant being treated as he was, namely for him being dismissed?
(ii) was the material reason one which related to his disability?
(iii) would the employer have dismissed some other employee to whom that material reason would not apply?
See Cosgrove v Caesar Howie [2001] IRLR 653, paragraph 5, per Lindsay P, applying Clark v Novacold [1999] IRLR 318 (CA). If those three questions are answered in favour of the Applicant then, subject to the Respondent establishing the defence of justification as defined in section 5 (3), unlawful discrimination will be established.
(1) that the material reason was a combination of 'logistical absences', not related to his disability and absences on medical grounds;
(2) that the reason therefore related in part to his disability and in part to his unauthorised absences from work.
Section 5 (2) DDA
Conclusion
(1) Unfair Dismissal
(a) They were wrong to conclude that the Respondent failed to carry out a proper investigation solely on the basis that the investigating officer, Ms Ibrahim, was tainted by the appearance of bias in that the Applicant had taken out a grievance against her;
(b) They failed to properly apply the range of reasonable responses test to the sanction of dismissal.
(2) DDA
Section 5 (1)
(a) They failed to ask themselves and answer the question as to whether the employer would have dismissed some other employee to whom the disability related part of the reason for dismissal did not apply.
(b) They failed to demonstrate how they reached their conclusion that the Respondent had failed to make out the defence of justification. Any implicit finding that the defence was not made out by virtue of the provisions of section 5 (5) is subject to their findings under section 6, as to which:
Section 5 (2)
(a) They failed to give the Respondent an opportunity to deal with the material evidence given by the Applicant in cross-examination which, coupled with their own experience, led them to make a significant finding as to what were reasonable adjustments for the purposes of section 6;
(b) For completeness, we should record that it is common ground before us that the defence of justification was not separately raised by the Respondent under section 5 (2) (b).