MR H LARRIER v LIVERPOOL CITY COUNCIL & OTHERS [1999] UKEAT 800_99_1111
[1]APPEARANCES For the Appellant MR C HAY (Representative) Northern Complainant Aid Fund Check Point 45 Westgate Bradford BD1 2TH JUDGE WILKIE QC : Mr Hay has addressed us with admirable clarity and brevity. His skeleton argument also presents these virtues. He raises, in effect, two points.[2]One is in connection with what appears, on the face of it, to be minor factual errors or omissions by the tribunal. The point is dealt with at paragraph 5.1 of his Notice of Appeal.[3]We think that this raises no seriously arguable case. The omissions or errors of fact contained within those paragraphs do not directly go to the issue which was involved. It was clear that Mr Larrier was refused unpaid leave to go on the course concerned. There was a suggestion that he might at his own expense take part of his annual leave subject to it being convenient for the operation of the service to do so. It is clear that he went on the course not having made any such arrangement at a time when he was off sick. The triggering event for the discovery of that possibility by management was his attempted rather than his actual, cancellation of a medical appointment, but that error by the tribunal is neither here nor there. The triggering event occurred and it was discovered that he was attending the course whilst on sick leave. Therefore, the points raised at 5.1 really amount to nothing whatsoever. Thereafter, the respondent took the view that a disciplinary offence may have been committed and suspended Mr Larrier, but his sick leave continued.[4]The point raised by Mr Hay in 5.2 of the Notice of Appeal, is, in our judgment, one of substance which ought to go forward to a full hearing. It was clear that, in respect of his treatment by the respondent in being suspended, pending a disciplinary investigation arising out of his attendance at the course whilst on sick leave, Mr Larrier was treated in a less favourable fashion by reference to a comparator, Tricia Dunne, whom it was said had not suffered any disciplinary investigation arising out of a similar instance of conduct. That was a comparison which was before the tribunal. The respondents were given and took the opportunity to call evidence of Ms Dunne's Line Manager in order to deal with that point. It is right to say that this decision of the tribunal contains no reference whatsoever to that comparator, nor the respondents' explanations for any discrepancy in treatment, nor did the tribunal arrive at any conclusions as to whether that discrepancy of treatment constituted discrimination against Mr Larrier. Therefore, that matter is a matter of substance and should go forward to a full hearing.[5]In order to enable the Employment Appeal Tribunal at the full hearing to deal with that point, we direct that the Chairman's Notes of Evidence in respect of the evidence of Ms Jean Camps should be produced and, of course, any written witness statement which was submitted by the respondent of Ms Camps.[6]The time estimate for the hearing will be two hours or thereabouts, which is generous, but probably right and the case listed as Category C.