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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Metrobus Ltd v Cook [2007] UKEAT 0490_06_0901 (9 January 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0490_06_0901.html Cite as: [2007] UKEAT 490_6_901, [2007] UKEAT 0490_06_0901 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR D NORMAN
MR P A L PARKER CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Transcript of Proceedings
For the Appellant | MR MARTIN PALMER (of Counsel) Instructed by: Messrs Dean Wilson Laing Solicitors 96 Church Street Brighton East Sussex BN1 1UJ |
For the Respondent | MISS SARAH BEECHAM (of Counsel) Instructed by: Messrs Drakers Green Brett Solicitors The Captain's House Central Avenue Pembroke Chatham Maritime Kent ME4 4UF |
SUMMARY
Disability Discrimination – reasonable adjustments
Practice and Procedure – 2002 Act and pre-action requirements
On the Claimant's concession that the Employment Tribunal, not having being shown Tarbuck, erred in applying Mid Staffordshire, this error did not contaminate two other findings of actual breach of the duty to make reasonable adjustments which were not related to the failure to consider adjustments. While it is possible for contamination to occur, these freestanding findings showed no error here.
On the Respondent's concession at the Employment Tribunal that it failed to carry out the statutory dispute resolution procedure and so automatically unfairly dismissed the Claimant contrary to the Employment Rights Act 1996 s 98A, the Employment Tribunal was under no duty to make findings under s 98 relating to ordinary unfair dismissal.
The 40% uplift of compensation was justified by the Employment Tribunal's finding of blatant failure and was not manifestly excessive or perverse.
HIS HONOUR JUDGE McMULLEN QC
Introduction
"It is conceded by the Respondent that it is in breach of that procedure because it did not send a Step 1 letter and that, in those circumstances, it is inevitable that the Tribunal will find the Claimant was automatically unfairly dismissed. We so find."
It is both an unappealed finding and a concession not sought to be withdrawn.
The issues
The legislation
"3A Meaning of "discrimination"
(1) For the purposes of this Part, a person discriminated against a disabled person if-
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and(b) he cannot show that the treatment in question is justified.
(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.
(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty."
"It is unlawful for an employer to discriminate against a disabled person whom he employs-
(d) by dismissing him, or subjecting him to any other detriment."
"98A Procedural fairness
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-
(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,(b) the procedure has not been completed, and(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."
"31 Non-completion of statutory procedure: adjustment of awards
(1) This section applies to proceedings before an employment tribunal relating to a claim under any of the jurisdictions listed in Schedule 3 by an employee.
(2) If, in the case of proceedings to which this section applies, it appeals to the employment tribunal that-
(a) the claim to which the proceedings relate concerns a matter to which on e of the statutory procedures applied,(b) the statutory procedure was not completed before the proceedings were begun, and(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employee-(i) to comply with a requirement of the procedure, or(ii) to exercise a right of appeal under it,
it must, subject to subsection (4), reduce any award which it makes to the employee by 10 per cent, and may, if it considers it just and equitable in all the circumstances to do so, reduce it by a further amount, but not so as to make a total reduction of more than 50 per cent.
(3) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—
(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,(b) the statutory procedure was not completed before the proceedings were begun, and(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,
it must, subject to subsection (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent
(4) The duty under subsection (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances."
"12 Failure to comply with the statutory procedures
(1) If either party fails to comply with a requirement of an applicable statutory procedure, including a general requirement contained in Part 3 of Schedule 2, then, subject to paragraph (2), the non-completion of the procedure shall be attributable to that party and neither party shall be under any obligation to comply with any further requirement of the procedure."
The facts
"4. The Claimant was born on 23 January 1944. For many years he worked in the motor trade in a variety of capacities. Thereafter, for a period of some 20 years, he was the purchasing manager for a small group of hotels until it went into liquidation. Following that, he commenced his employment with the Respondent's predecessor on 7 January 1995.
5. The Respondent is, as its name implies, a bus company. It was independent prior to January 2000 when it became a subsidiary of the "Go-Ahead Group". At that time the Respondent had depots at Orpington, Godstone and Crawley. The Godstone depot has more recently been transferred to Croydon. Although the Respondent operates semi-autonomously, it is an associated company for the purposes of employment legislation. Those associated companies employ some tens of thousands of staff.
6. The Claimant had an accident-free record as a bus driver for some seven years. In August 2003 he had an accident at work that caused significant pain in his shoulder. It is common ground that no-one was to blame for that accident. There is no personal injury claim proceeding in any other jurisdiction. The cause of that pain was unidentified for a long period. The Claimant was able to work but took some time off. He was later signed off work on 20 November 2003 as unfit to drive. He was never able to return."
"24.1 the Respondent did not inform the Claimant of his right to be accompanied to that meeting;
24.2 the Respondent did not tell the Claimant that it was to be a meeting at which he might be dismissed;
24.3 the meeting did not comply with paragraph 13 of the procedure because of the numerous interruptions that took place;
24.4 the appeal did not take place within a reasonable time, contrary to paragraph 12."
Those failures engaged the provisions of the 2002 Act and Regulations and the Tribunal said this:
"27. On the basis of those provisions we take the view that the Respondent's initial failure to Comply with Step I of the procedure results in an inevitable finding that the non-completion of the procedure is attributable to the Respondent, and the Claimant is potentially entitled to an increase in any relevant award which may be made of at least 10%.
28. We took the view that the Respondent's failures in complying with the stautory procedure were serious. The Respondent, in its own right, is a large employer with substantial resources. The requirements imposed by the 2004 Regulations had been in place for a considerable period before the events with which we are concerned. The requirements are not complex. They are designed to ensure minimum standards of natural justice. It is disappointing to find that an employer of the Respondent's size and status has blatantly failed to comply with them. The provisions are more penal than compensatory in nature. In our view, the Respondent's breaches of these provisions make it just and equitable to make a further uplift of 30%, so as to increase any relevant award to the Claimant by a total of 40%."
The Respondent's case
The Claimant's case
"We are also of the unanimous view that the actual failure of the Respondent to make an offer of one of the roles that did become vacant was a failure to make a reasonable adjustment."
"We therefore took the view that it would have been a reasonable adjustment for the Respondent to await the outcome of the anticipated operation, even though the date of that operation was not then known."
The legal principles
Conclusions