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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Billfields Food Company Ltd v. Kontemeniotis & Anor [2004] UKEAT 0096_04_0809 (8 September 2004) URL: https://www.bailii.org/uk/cases/UKEAT/2004/0096_04_0809.html Cite as: [2004] UKEAT 0096_04_0809, [2004] UKEAT 96_4_809 |
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At the Tribunal | |
Before
HER HONOUR JUDGE WAKEFIELD
DR B V FITZGERALD MBE LLD
MR R LYONS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR MAURICE JOHNSTONE (Representative) The Employment Law Service Wembley Law Chambers 38 Napier Road Wembley Middlesex HA0 4UA |
For the First Respondent |
MR DANIEL TATTON-BROWN (of Counsel) Instructed by: Messrs Piper Smith & Bashman Solicitors 31 Warwick Square London SW1V 2AF |
For the Second Respondent | No Appearance or Representation by or on Behalf of the Appellant |
SUMMARY
Unfair Dismissal / Disability Discrimination
Issue as to the factual basis upon which the ET proceeded - whether or not a concession had been made. Issue as to correct approach to mitigation of loss in UD.
HER HONOUR JUDGE WAKEFIELD
"19. We are therefore satisfied firstly that his contract of employment was to work from 4.00 am until midday on weekdays, secondly that the Respondents required him to change that, that change was a fundamental change which went to the root of this contract, that he was therefore entitled to and did accept that as an ending of his obligations under the contract. We therefore find for him that he was constructively dismissed and the Respondents having conceded that that was unfair that complaint succeeds"
"23. In the facts above we have recited that in answer to a letter before action the Respondent by a letter dated 9 October some five weeks after he had left offered to reinstate him in his former hours of work. He rejected this because he did not consider it sincere. The Respondents had not contacted him at all after he told them that he could not work the new hours and had waited until they received the letter before action before taking this course. In that letter that they had utterly denied his claim describing it as without merit and in those circumstances he did not consider that a proper employer-employee relationship could be re-established between them. We referred to the case of Wilding- v- British Telecommunications Plc [2002] EWCA 349 and we agree with Mr Kontemeniotis that his action in declining this offer was not unreasonable."
"10. He worked from 4.00 am to noon- what was called the day shift. In 1999 he tried to work from midnight to 9.00 am but he found he could not work those hours, because he found it difficult to sleep during the daylight hours and his nerves started to suffer. Panic attacks came on and when he saw the doctor he was diagnosed as having a recurrent depressive disorder. He described its effect upon his home life which, as the Respondents have admitted he is disabled, we need not repeat in this public document. We are quite satisfied that his illness, left untreated, would have had a substantial adverse effect on his day to day activities. Fortunately he was prescribed tablets which were able to control that situation and he was able to work quite regularly. However it is clear to us from Mr Kontemeniotis's evidence that he was constantly aware that he had that recurrent depressive disorder which was only controlled by tablets and he was quite fearful of it recurring."
They then in paragraph 20 (as originally drafted) said this:
"20. We further find for Mr Kontemeniotis on disability discrimination. We are satisfied that he was dismissed for a reason relating to his disability. To the extent that it requires knowledge by the employers in constructive dismissal cases we are satisfied that the employers whilst they may not have known that he was disabled for the purposes of the Disability Discrimination Act knew or should have known had they made the proper enquiries that he was a person who was receiving treatment for a condition and certainly their managers knew all about it. Therefore we cannot accept a defence that they did not know. We therefore find that they treated him less favourably by dismissing him for a reason connected with his disability."
The amended Notice of Appeal in ground (a) criticised that paragraph in the following terms:
"a. .At point 20 of the decision the Tribunal failed to show how it was that panic attacks through worrying about the safety of his family led to a disability that meant he was unable to work shift patterns and in particular only certain shift patterns. The Tribunal gave no regard as to how any employer in such circumstances led to the conclusion that their managers should have known the applicant faced difficulty with certain shift patterns. In fact he had worked those hours before."
"to record the Employment Tribunal's reasons for the finding (in paragraph 20) of disability."
This the Chairman has now done by a letter received in this Tribunal on 23 August 2004 as follows:
"……para 20 of the decision [is revised] as follows.
We further find for Mr Kontemeniotis on disability discrimination. The facts we have found in paragraph 10 above satisfy us that he was suffering from recurrent depressive disorder, which, if untreated would have had a substantial and long term adverse effect upon his ability to carry out normal day to day activities.
We are further satisfied that he resigned because the Respondents, in compelling him to change the only hours he could work to cope with his disability in effect forced him to resign therefore dismissing him for a reason which related to his disability.
We are not satisfied that the Respondent could justify that action because other staff transferring from Wembley subsequently worked the 4.00 am to midday shift.
We are satisfied that the employers knew enough about his condition to know that their insistence upon new hours would impact upon his disability. Their managers clearly knew about it and, having heard his objection, they had a duty to enquire."
(1) Firstly, that the Employment Tribunal dismissed Lillian and Sexton Limited from the action but did not at any stage in the Extended Reasons address the issue of whether Billfields was the company liable for any compensation payable to Mr Kontemeniotis. The issue of who was Mr Kontemeniotis's employer at the relevant time was clearly raised in the Notices of Appearance by both the original Respondents and it seems inconceivable that the Employment Tribunal, in absence of the suggested concession, would not have addressed that issue;
(2) The written closing submissions made on behalf of Billfields do not refer to the issue;
(3) Having received the decision, sent to the parties 2 December 2003, Billfields did not request a review as they must surely have done if such a fundamental issue remained unresolved;
(4) Correspondence and copies of e-mail's before us, (but not all before the Employment Tribunal) tend to evidence a concluded agreement as to the concessions suggested. Had there been any argument as to there being a concluded agreement on the concession, the Employment Tribunal would surely have been invited by the parties to consider all these documents and to give a ruling. As it was, the only issue that the Employment Tribunal did consider and resolve in favour of Billfields in relation to a relevant transfer was as to any requirement to consult (see paragraph 21 of the Extended Reasons). On that issue they found that the relevant transfer to Billfields was in November 2002 and that there had been no duty to consult;
(5) Billfields only added this issue as a ground of appeal by amendment;
(6) Counsel for Mr Kontemeniotis had a clear recollection that the concessions had been made without which the issue as to who was Mr Kontemeniotis's employer at the relevant time would have featured largely in argument before the Employment Tribunal, which it did not.
COSTS