MR M VAZ SERRA v CROSS CHANNEL CATERING CO LTD & OTHER [2000] UKEAT 1280_99_1812
[1]APPEARANCES For the Appellant PETER WALLINGTON (of Counsel) LAGER Unit 10 Leroy House 436 Essex Road London N1 3QP MR JUSTICE BELL : We propose to allow Mr Vaz Serra's appeal to go ahead to a full inter partes hearing, but Mr Wallington on his behalf has asked leave to amend the existing Notice of Appeal to substitute for the grounds as they appear there three grounds as follows. The first is that the tribunal erred in law in construing the appellant's contract of employment as only imposing on the respondent an obligation to pay benefits in circumstances which were covered by its Zurich insurance policy. Mr Wallington makes detailed points in his skeleton argument in respect of that matter. The tribunal's interpretation of the contractual position was part at least of its route to finding that the respondent's treatment of the appellant in failing to pay him the relevant benefits, was justified. If, contrary to the tribunal's decision, the respondent was contractually bound to pay the benefits, it would not be possible, it is argued, or it would be very much more difficult, to justify the respondent's non-payment of them. In any event, Mr Wallington would wish to argue that the Employment Tribunal would have addressed the question of justification on a false footing if his contentions on the contractual point are well founded. The question of breach of contract is potentially important for Mr Vaz Serra in respect of any breach of contract claim as opposed to his disability discrimination claim.[2]The second ground is dependent upon the appellant succeeding on the contract point. It is contended that the cost of equal treatment cannot justify an employer in treating a disabled person less favourably than it would treat others if the cost is in fact no more than it is the employer's contractual obligation to bear.[3]There is a third ground, which is an alternative to the first two grounds, which comes into play if the contract point fails. It consists of various points of challenge to the finding of justification, all of which are set out in Mr Wallington's skeleton, which we do not propose to rehearse.[4]In our view, the first two grounds merit argument inter partes. That being so, Mr Wallington on behalf of the appellant should be entitled to argue the points comprising third ground also.[5]The matter will go ahead to a full hearing. We give leave to amend to substitute the three grounds which Mr Wallington has identified and which we have referred to, in substitution for the grounds in the existing Notice of Appeal, but we give that permission without prejudice to the entitlement of the employer to argue at the full hearing that, for instance, any particular point was not raised before the Employment Tribunal or cannot be found in the original timeous Notice of Appeal. The listing will be Category B for one day. No Notes of Evidence are required. Skeleton arguments should be filed not less than 14 days before the date fixed for hearing.[6]Mr Wallington applies for the appeal to be expedited. His plea being based upon the fact that Mr Vaz Serra suffers from AIDS. He has no precise prognosis. It would be too much to expect one in the circumstances of that disease unless the appellant's circumstances were particularly dire. We are told that his condition is stable at the moment, though he suffers, understandably, from psychological difficulties. He is on combination therapy. In a nutshell, Mr Wallington urges us to do anything which would avoid delay which might cause further stress to Mr Vaz Serra, it now being approximately a year since his Notice of Appeal was filed.[7]Despite our sympathy for the appellant, we do not think we can order expedition to the degree that something already listed be taken out of the list to make room for this appeal, but we do urge listing to find as early slot as it can for this appeal in the light of the distressing circumstances in which the appellant finds himself.