British Sugar Plc v Kirker [1998] UKEAT 170_98_2807

EAT
British Sugar Plc v Kirker
[1998] UKEAT 170_98_2807 · 1998-07-17

JUDGE PETER CLARK :

This is an appeal by the employer, British Sugar Plc ["the Company"] against both the liability and remedies decisions of an Industrial Tribunal sitting at Nottingham under the chairmanship of Mr D R Sneath, promulgated with extended reasons on, respectively, 5th December 1997 and 9th January 1998, upholding the applicant, Mr Kirker's complaints both of unfair dismissal and disability discrimination, and awarding him compensation totalling £103,146.49.

The Facts

The applicant commenced employment with the Company at its Newark sugar refinery on 26th September 1977 at the age of 20. He began as a trainee and in 1980 he was appointed a Shift Chemist. He received no further promotion before his dismissal on grounds of redundancy in March 1997.The applicant was born with dislocated lenses in both eyes. He is and has been throughout his life visually impaired. He suffers from advanced glaucoma and being aphakic. His level of vision is 3/60 in each eye. He wears very powerful spectacles. He is registered as partially sighted but is eligible for full blind registration. He is not permitted to drive a motor vehicle and bicycled to work.By their Notice of Appearance the Company denied that the applicant was disabled within the meaning of s.1 of the Disability Discrimination Act 995 ["DDA"]. On the first day of the liability hearing held on 10th October 1997 it was conceded by the Company that the applicant was disabled. The tribunal were satisfied that that concession was properly made.The DDA came into force on 2nd December 1996.. The complaints of disability discrimination related to events leading up to the applicant's dismissal in March 1997. However, the tribunal made certain findings as to the history of the employment which are material to the tribunal's decision and this appeal.The applicant's poor eyesight was an issue with his managers during the course of his employment. In April 1985 he applied for promotion to a post at another factory site. He was not invited for interview and was told that his poor attitude had been the reason for not short-listing him. When he questioned that reason his managers could not give examples. Thereafter however he was offered interviews when he applied for other posts. In 1986 he applied for two positions and was interviewed in respect of each. At both of the interviews those interviewing him mentioned his poor eyesight. At one of them a concern was expressed as to whether the applicant would be safe to employ in the factory environment. In particular, there was concern about him having to climb on to the back of lorries carrying sugar beet. At the other interview which was for a post at the Company's central office in Peterborough he was asked whether he thought he would be able to perform the task in view of his poor eyesight. On another occasion he was told by his then shift manager that the thing that was preventing his promotion was not his attitude but his eyesight. He attempted to impress his employers as an efficient keen and enthusiastic worker, however, he did not succeed. He failed to secure promotion in the early 1990's to the post of acting day chemist. The decision to promote another employee had been made by Mr Jim Bell, the factory chemist. When the applicant raised with Mr Bell his concern that he had not been appointed, the latter expressed concerns about his eyesight and ability to perform safely the tasks which would fall to the acting day chemist. The following year there was a further vacancy for the same position. Whilst Mr Bell acknowledged that the applicant and his colleagues ought to have experience of working as acting day chemist, Mr Bell felt that he could not select the applicant owing to his poor eyesight. Mr Bell was concerned about safety but otherwise indicated satisfaction with his work. In 1994 the Company changed the way shift chemists work, there were four crews operating three shifts around the clock. Each crew had a shift chemist working with it. The changes meant that the applicant remained as the only shift chemist. His three colleagues became day workers and became more involved in project work rather than routine analysis. Mr Mallott, the factory manager, said that the applicant had declined the opportunity to change from shift work. The tribunal were told that he had been inflexible and that this inflexibility had contributed to his dismissal in March 1997. The applicant, on the other hand, gave different evidence which the tribunal preferred. He had discussed the proposed changes with the production manager and technical services manager and agreed that he should stay on shift in order to supervise the casual staff. He was approached in January 1996 by Mr Mallott with a view to transferring to day working. The applicant asked for the same compensation as was being given to his colleagues when they had transferred some two years earlier; he did not receive a reply to that request. Instead, Mr Mallott treated him as if he had rejected the transfer and then tried to persuade him that he should accept down-grading. The applicant was a grade 1 foreman, the grade below that was grade 9. Mr Mallott tried to persuade the applicant to accept grade 5 which would have meant a significant drop in pay. Mr Mallott's view was that he could no longer justify the employment of the applicant in his present position.In late 1996 and early 1997 the Company decided to restructure its workforce by removing some 200 employees across six sites. 29 jobs were to go at the Newark site. The recognised trade unions were consulted and redundancy selection criteria were agreed.The criteria were grouped under two main heads. Each factor had a points weighting, and those in the pool for selection were each scored under those heads. The lowest scoring employees were selected for redundancy.Under the first head, 'Work Attributes', the following factors, with maximum points values, were listed: Flexibility and Adaptability (15), Teamwork (15), Self-motivation (15) and Initiative (10). Under the second heading of 'Current Work History and Potential' were the following: Skills (15), Customer and Business Focus (10), Performance and Competence (Effective Working) (10), Qualifications (Work Related) (5) and Potential (5). Two further factors, namely Attendance Record and Current Disciplinary Record received a points weighting of nil to -5. Thus the maximum score was 100.The individual staff assessments were the responsibility of the operations managers, Ian Calvert and Jim Donovan, who in turn consulted with other managers lower down the line about individuals. One of the managers consulted was Jim Bell.The applicant scored an overall 40.5 points, made up as follows: Flexibility (7.5), Teamwork (1.5), Self-motivation (9.5), Initiative (1), skills (15), Customer and Business Focus (5) Qualifications (4), Performance and Competence (0), Potential (0), Current Disciplinary Record (-1), Attendance (-2).The lowest overall score among those retaining employment was 46. The applicant was dismissed by letter dated 17th March 1997, signed by Mr Mallott, with effect from 31st March. The Company's procedure provided for a two-stage appeal. The applicant appealed first to the two managers responsible for the assessment, Messrs Calvert and Donovan. That appeal was dismissed on 28th March. His further appeal to Mr Carter, Operations Director, was dismissed following a hearing on 12th May. Present at that hearing were both Mr Mallott and Mr Donovan. The applicant was represented by a full-time trade union officer.

The Complaint

By his Originating Application presented on 13th June 1997 the applicant complained of both unfair dismissal and disability discrimination. The principal grounds of each complaint were, first, in relation to unfair dismissal, that if a redundancy situation existed the applicant was unfairly selected for redundancy on the basis that the Company's selection criteria were both materially unfair and unreasonably weighted in favour of subjective assessments and additionally the criteria were applied unfairly to him; further, the Company failed to consult adequately with the applicant prior to dismissal. As to disability discrimination the applicant's case was that he was disabled and that he was unjustifiably subjected to less favourable treatment owing to his disability in that he was dismissed by the Company following the application of subjective criteria which favoured employees who did not suffer from similar disability.By its Notice of Appearance the Company contended that the applicant was genuinely redundant; he was fairly selected for redundancy, there was adequate consultation, the dismissal was procedurally fair, the claim for unfair dismissal was denied. Further it was denied that the applicant was disabled; if he was, the Company did not discriminate against him as a result of such disability. No plea of justification under s. 5(1)(b) of the DDA was raised then or at any stage in these proceedings.

The Industrial Tribunal decisions

Having heard from Messrs Mallott, Calvert and Carter, called on behalf of the Company and the applicant himself, the tribunal found that the applicant was a straightforward witness whose evidence was reasonably accurate and truthful, whereas the Company's witnesses had given a misleading impression of the applicant, albeit not deliberately, and that reflected the views of the managers consulted in the course of the assessment process. That view, in the tribunal's judgment, was influenced by the applicant's disability.In relation to the complaint of unfair dismissal the tribunal considered whether in marking the applicant as it did, the Company acted reasonably. In summary, they found that the applicant had not been marked objectively, when his low scores were set against the true position. The dismissal was substantively unfair.As to disability discrimination the tribunal set out their conclusions at paragraph 33 of the liability decision reasons in this way:
"33. As for discrimination, having seen and heard the Applicant and considered the way in which he was treated in the assessment process, we are left with a clear inference that he was viewed by the Respondent's managers as somehow different from his colleagues. The origin of that view, we are satisfied, lay in his disability. It coloured the judgements which those managers made in the selection process. In that process, we are satisfied the Applicant was treated less favourably for reasons which related to his disability. We refer to his poor eyesight and the manifestations of that disability which we have described earlier. Over a substantial part of the applicant's period of employment, his poor eyesight was an issue for his managers. Because of it, he was seen as an employee who did not have a future with the Respondent. A measure of his value to the Respondent was Mr Mallott's attempt substantially to downgrade him. Whilst we acknowledge that the Respondent's managers had some training in the matter of the Disability Discrimination Act 1995, it was not clear how far that training went other than an awareness of the statute and we do not accept it they went anywhere far enough to offset the prejudicial effect of the Applicant's disability on their judgement. They were probably not aware that they were discriminating but, in that regard, we see no difference in principle between disability discrimination, on the one hand, and race and sex discrimination on the other. Finally, because the Respondent had denied discrimination, it has not tried to show that it was justified. Thus, we do not think it necessary to say any more about justification."
In the remedies decision the tribunal addressed the question as to whether or not the applicant would have been dismissed anyway, had the Company not discriminated against him and/or acted unreasonably in treating redundancy as a sufficient reason for dismissing him. They concluded that on the balance of probabilities had the applicant been objectively assessed without the influence of his disability he would have received a higher score which would have placed him well above the cut off line so that he would have retained his job.The final calculation of compensation, dealing with past and future loss of benefits of employment, injury to feelings under the DDA and loss of statutory rights under the unfair dismissal claim (£200) resulted in the total award, including interest, to which we have referred.

The statutory provisions

The material provisions of the DDA, given the eventual concession by the Company that the applicant was disabled, are to be found in ss.

(d) of the Act:

"5 (1) For the purposes of this Part, an employer discriminates 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.
4 (2) 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."

Dismissal by reason of disability is not an automatically unfair dismissal. That is in line with the race and sex discrimination legislation. The Industrial Tribunal correctly directed themselves in accordance with ss. 98(2)(c) and (4) of the Employment Rights Act 1996 . We need not set out those provisions.

The Appeal

The re-amended Notice of Appeal extends to 13 separately pleaded grounds. However, by a skeleton argument and in oral submissions to us Mr Hillier has narrowed the focus of the appeal to two broad submissions. Before turning to those submissions we should record certain concessions, properly made by Mr Hillier in our view, which have greatly assisted in our determination of this appeal. First, he accepts that if the tribunal was entitled to find that unlawful disability discrimination caused the dismissal, then it would be highly exceptional for that dismissal not to be unfair. Secondly, he does not challenge the tribunal's approach in assessing compensation on the basis of the uncapped loss attributable to dismissal by reason of the applicant's disability. The only additional element attributable solely to the unfair dismissal was the £200 award for loss of statutory rights. Thirdly, he does not seek to challenge the tribunal's factual finding that, on the balance of probabilities, he would not have been dismissed but for the disability discrimination as found. Finally, he concedes that if the tribunal's findings that the Company marked the applicant adversely in relation to the four lowest scored criteria by reason of disability were permissibly made, it follows that the applicant was less favourably treated by comparison with the other employees in the redundancy selection pool.We should add that although recorded as concessions, coming as they do from highly experienced Counsel, we should have so found had those concessions not been made.

Disability Discrimination

Mr Hillier's primary submission is formulated in this way: as a matter of law the tribunal was not entitled to draw from pre-DDA events of less favourable treatment of the applicant by reason of his disability, which he submits was justifiable, any inference that the Company had a general prejudice against the applicant by reason of his disability when considering the material complaint which post-dated the Act.We reject that proposition. The thrust of the Company's case, particularly through the evidence of Mr Calvert, who took part in carrying out the material assessment, was that the applicant's disability played no part in that assessment. In rejecting that evidence the tribunal was entitled to take into account the history of the applicant's treatment prior to the Act coming into force by way of background in order to determine whether or not old perceptions of the applicant's value as an employee, based on his disability, were carried through to the material assessment. We think that the position is analogous to the cases of race and sex discrimination where by reason of the limitation rules past alleged acts of discrimination may be taken into account in deciding whether the material complaints brought within time are made out. Din v Carrington Viyella Ltd (Jersey Capwood Ltd) [1992] IRLR 281 .As a matter of policy the DDA was passed, as were its predecessors outlawing sex and race discrimination, in order to change the attitudes and behaviour of employers. We think that this tribunal had that well in mind when they observed, at paragraph 33 of the liability reasons, that although the Company's managers had received some training in the DDA, it did not go far enough to offset the prejudicial effect of the applicant's disability on their judgment when it came to making the material assessment.We further reject Mr Hillier's contention that the tribunal failed to properly tie the pre-Act incidents to the actual marking of the applicant in that assessment. They were entitled to find that the perception of the applicant as an employee who did not have a future with the Company went to the very top with Mr Mallott. Mr Bell, who had in the past declined to select the applicant for the post of acting day chemist on the grounds of his eyesight, was one of the managers consulted in connection with the assessment. It was thus clear to the tribunal why the applicant was scored at 0 for promotion potential. It also resulted in his score of 0 out of 10 for performance and competence, a score which, under the Company's own selection criteria, meant that he did not always achieve the required standard of performance and required close supervision. In fact he was never criticised for poor performance and did not have any supervision.Mr Hillier modified his submission by adding the words "without more". It seems to us that the tribunal was entitled to look at both the pre-DDA events and the objectively unjustified scoring, which, in combination, entitled them to draw the inference of disability discrimination in the Company's assessment of the applicant leading to his dismissal. But for his disability he would not, on the balance of probabilities, have been dismissed.Finally, Mr Hillier relied particularly upon the submission that the pre-DDA incidents of less favourable treatment by reason of the applicant's disability were justifiable. Such treatment was based on the Company's concern for the applicant's safety. We do not believe that that submission is factually correct in every instance, but assuming that it is, that does not alter the basis for a finding of prejudice by the tribunal. The question of justification will only arise as a defence to the material complaint. It was not so advanced in this case. There was no suggestion that the applicant was marked down by reason of his disability on Health and Safety grounds; the case was that his disability played no part in the assessment. On the facts as found the tribunal were entitled to reject that case.Mr Hillier's second submission is that the tribunal were not entitled to conclude that the applicant had suffered less favourable treatment without nominating a comparator and examining that comparator's marks as against those awarded to the applicant. There are a number of difficulties with that submission. First, as Ms Drew points out, that argument was not advanced below. The point cannot be taken for the first time on appeal. Kumchyk v Derby City Council [1978] ICR 1116 . Secondly, even if it was taken below, it is not a good point. First, because the Company disclosed a list of individual total scores without identifying the employees on the list; secondly, because the DDA, unlike the race and sex discrimination legislation (see s. 3(4) of the Race Relations Act 1976 and s. 5(3) of the Sex Discrimination Act 1975 ) does not require a like for like comparison; thirdly, because the scheme of s. 5(1) of the DDA simply requires the applicant to show that he was less favourably treated than other employees where the reason for his treatment, that is a reason related to his disability, does not apply to those other employees. In this case there was no suggestion that the other employees suffered from a disability. That was therefore not a factor in their assessments but was, on the tribunal's findings, a detrimental factor in the assessment of the applicant. The complaint here was not that other employees were overmarked, simply that the applicant was undermarked by reason of his disability. It was therefore unnecessary to consider the scores of the other employees in the selection pool, other than for the purpose of determining the causation question; but for his disability, would the applicant have been dismissed?In our view the tribunal was entitled to conclude that the applicant's complaint under ss. 5(1) and 4(2)(d) of the DDA was made out on the facts as found and inferences properly drawn by the tribunal.

Unfair dismissal

In the light of Mr Hillier's concession in relation to the appeal against the finding of unfair dismissal, and our conclusion that the tribunal's finding of disability discrimination should be upheld, it is not strictly necessary to consider this part of the decision. However, we would add this observation. The growth of employment protection legislation has meant that Industrial Tribunals are increasingly faced with multiple complaints. It is essential that the issues in each complaint, both as to liability and remedy, are kept separate. Thus, for example, in a conduct case raising complaints both of unfair dismissal and wrongful dismissal, it will be necessary for the tribunal to deal separately with the issue as to whether the employer has acted reasonably in treating the reason for dismissal as a sufficient reason for dismissal, an enquiry into the reasonableness of the decision, and the question as to whether in fact the employer had sufficient grounds for summarily dismissing the employee at common law.Similarly, in the present case it is clear from authority that the tribunal is not required to carry out its own assessment exercise in a redundancy selection case for the purpose of determining the fairness of dismissal. British Aerospace v Green [1995] IRLR 433 . Whereas for the purposes of a DDA claim, in circumstances where it is alleged that the assessment carried out on the applicant was impermissibly coloured by considerations of his disability, it may be necessary for the employer to lead some evidence to explain how the assessment was reached absent the disability factor.We think that in this case the evidence led was directed to the unfair dismissal issue of reasonableness rather more than the factual question as to whether, in that assessment, the applicant was less favourably treated by reason of his disability.Based on the evidence called before it we are satisfied that the tribunal properly directed itself in relation to the separate tests for unfair dismissal and disability discrimination, and having done so, reached permissible conclusions on each.

Conclusion

It follows, in our judgment, that no error of law in the tribunal's approach has been made out. The appeal is dismissed.

Costs

Ms Drew applied for a proportion of the applicant's costs in the appeal, put at 75%, on the grounds that the Company was guilty of unreasonable conduct in conducting these appeal proceedings. EAT Rule 34(1). She submits that in correspondence the Company was invited to restrict its grounds of appeal, but did not do so until service of Mr Hillier's skeleton argument on 3rd July 1998. Accordingly the applicant's side were put to additional work and expense.We reject that application. It seems to us that where a party has, with leave, set out extensive grounds of appeal in an amended Notice of Appeal, and then limits the grounds for argument at the hearing, that is a perfectly proper course to take. To decide otherwise would discourage parties from refining the argument for fear of a costs order being made against them. That would lead to an undesirable waste of hearing time and consequent further expense to the parties.

Leave to appeal

Finally, Mr Hillier has applied for leave to appeal to the Court of Appeal. For the reasons which we have given, we are not satisfied that any point of principle arises in this appeal such that we should grant leave. Accordingly that application is refused.