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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Baxter v. Power Lines Pipes & Cables Ltd [2005] UKEAT 0068_04_3003 (30 March 2005) URL: https://www.bailii.org/uk/cases/UKEAT/2005/0068_04_3003.html Cite as: [2005] UKEAT 68_4_3003, [2005] UKEAT 0068_04_3003 |
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At the Tribunal | |
Before
THE HONOURABLE LADY SMITH
DR A H BRIDGE
MRS A E HIBBERD
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
For the Appellant | Ms M Gribbon, Solicitor Of- Messrs Digby Brown Solicitors Employment Unit The Savoy Tower 77 Renfrew Street GLASGOW G2 3BZ |
For the Respondent |
Mr G Keys, Solicitor Of- Messrs Ness Gallagher Solicitors Stewart Chambers 95 Stewarton Street WISHAW ML2 8AG |
Whether employee dismissed where employer believed him to have resigned; whether employer had made reasonable adjustments to account for disability and interpretation of s.6 of the Disability Discrimination Act 1995.
THE HONOURABLE LADY SMITH:
Introduction
The Issues
Firstly, whether or not the claimant had established, on a balance of probabilities, that he was dismissed by the respondents. At times, in the course of her submissions, Ms Gribbon seemed to suggest that the issue was whether or not the respondents had established that the claimant had resigned but it is clear, in our view, that the issue was correctly identified by the Employment Tribunal. The second issue was whether the respondents had failed in the obligations incumbent upon them in terms of the Disability Discrimination Act 1995.
The Facts
"We preferred to look at the actual evidence rather than to draw too many inferences from evidence which was at times quite vague on both sides. We recall Mrs Baxter stating that her son had said he was "more or less" sacked. That did not indicate that specific words of dismissal had been used, and that the applicant was rather unsure of what had actually happened. Secondly, the letter which he drafted to his agent on the evening of the events made reference to a question "if there would be an opening with his company again if and when I was cleared by the doctor to work" (in any capacity). That phraseology clearly indicated to us that the applicant regarded his present employment as being at an end. What was being discussed was possible future employment on different terms and conditions. This is in our view much more consistent with the version of events put forward by Mr Harrison."
Mr Harrison's version of events was, as we have already noted, that he did not dismiss the claimant during the telephone call. Rather, the claimant resigned.
The Employment Tribunal continued:
"We therefore concluded that the applicant did advise that he was going to take up full-time further education, and we noted that he did in fact do so. This seemed to us (and also to Mr Harrison) a sensible course of action where it would be at least one year before the applicant could consider gainful employment. There was then a later discussion about an opening in a different capacity "if and when", in other words, conditional upon recovery. In the circumstances, whilst Mr Harrison may have dashed the applicant's hopes for the future about such an outcome, it did not amount to a dismissal from the present employment; that decision had already been taken and had been communicated to him. We can quite understand why the applicant might have been aggrieved by this later exchange; after all, from his perspective, the respondents were the authors of his present predicament, and we could quite understand that he might regard them as having some duty towards him. When the discussion was reported to his parents, again, we could understand their desire to support their son, and encourage him to take up the position that he did. Nonetheless we felt that on the balance of probabilities, the applicant has failed to demonstrate that he was dismissed, either in express terms, or by reasonable inference."
The Claimant's Case:
The Respondent's Case:
"The function of the Employment Appeal Tribunal is to correct errors of law where one is established and identified. I think care must be taken to avoid concluding that an experienced Industrial Tribunal by not expressly mentioning some point or breach has overlooked it, and care must be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the Industrial Tribunal, searching around with a fine tooth comb for some point of law"
and of what was said by Lord Donaldson himself:
"What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as 'perverse'."
"[The purpose of reasons] is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind is to misuse the purpose for which reasons are given."
The Legal Principles:
Decision