MR S P HUTTON v A E PROCTOR LTD [2000] UKEAT 1319_99_1812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1319_99_1812Case No Appeal No. EAT/1319/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S P HUTTONAPPELLANTA E PROCTOR LTDRESPONDENT
Before
His Honour Judge D Pugsley Mr D J Hodgkins Cb Mr A D TuffinDate 18 December 2000
[1]APPEARANCES For the Appellant MR A BURNS (of Counsel) P R Hanna Solicitors Oriel House 52 Coombe Road New Malden Surrey KT3 4QP For the Respondents MR C BENNISON (Employment Law Consultant) First Business Support 33 Old Woking Street West Byfleet Surrey KT14 6LG JUDGE PUGSLEY : This is an appeal from the decision of the Employment Tribunal sitting in London (North) in which they held that Mr Hutton was not suffering a disability within the meaning of section 1 of the Disability Discrimination Act 1995 . Mr Hutton had commenced employment with the respondents on 1st March 1999. He was employed by the respondents to answer the telephone, take orders for deliveries and make invoices out. The respondents carried on the business of builders' merchants. Mr Hutton's employment ended on 12th March 1999.[2]There is an issue between the parties as to the extent to which his disability figured as a reason for his dismissal. Accordingly to the appellant the dismissal was because he was dyslexic and that was a disability and he cites the letter from the respondents dated 12th March 1999 where Mr Proctor, the general manager of the respondent company, says this:
"To confirm the details of our discussion earlier today, unfortunately, we are unable to continue with your employment due to your word blindness. We were unaware of this when your employment commenced. As discussed, there are no alternative posts where other employment is available. We wish you all the best for the future, and thank you for your short time with us."
[3]In the Notice of Appearance what is said is:
"Mr Hutton was not dismissed because of his dyslexia. He was employed as a manager and did not show any commitment, enthusiasm, dedication or interest in his work. Instead of motivating members of staff, he distracted and hindered them. He did not seem willing to learn or be shown our companies working methods, and would not adopt them fully. He showed a careless and non-compliant attitude and would not pay attention to detail. Despite, at interview Mr Hutton told us of his managerial history and he claims it speaks for itself; I did not find Mr Hutton's managerial qualities acceptable."
The Notice of Appearance went on to say that after a week after his employment terminated Mr Hutton:
"asked me to back-date a letter saying that he had been dismissed due to his dyslexia. He told me that it would help him at the job centre, and that it would help a more speedy reinstatement of his benefits. I was under the impression that this had been requested by the job centre. I did not realise that the letter that I wrote at Mr Hutton's request, was to be used against me so that he could apply to a tribunal for a disability discrimination claim. The dyslexia had a minimal effect on the work and was not the reason for dismissal."
[4]The tribunal decision is very brief. It recites the statutory provisions as to the redundancy and it goes on to say this:
"3. We considered Mr Hutton's evidence that he had suffered from dyslexia from the age of 11. It did not affect his normal day to day activities. He now knows how to use a spell check and he now knows how to use a dictionary. 4. We considered exhibit A1, the report from the local Occupation Psychology Service Employment Assessment Report. Ms Bamford, the Occupational Psychologist states: "
We agreed that Sean is likely to benefit from using the spell-check and dictionary at work. Sean's worked very quickly on all of his assessments. He also told me that he often gets work done ahead of time in his job. He mentioned that very occasionally he writes order numbers down incorrectly, although he doesn't feel that this is a general difficulty. He may benefit in his work from checking and confirming written information." 5. We considered Mr Hutton's curriculum vitae and we not that since he left school in 1997 he has been in employment virtually continuously except from October 1997, when he left PJ Scott & Sons Builders Merchants. He then obtained employment with the Respondent on 1 March 1999. He has not worked since he left that employment. [ We note that the reference to leaving school in 1997 is clearly wrong, Mr Hutton left school in 1977. We can do many things in a tribunal but rejuvenate someone by 20 years is not within our powers. ] 6. Since leaving school Mr Hutton has taken a number of training courses including forklift truck driving, telephone sales, computer data base, onwards sales, product knowledge and kitchen planning and health and safety at work. He has completed all these courses successfully. 7. We find, as a fact on the evidence and as a matter of law, that, although Mr Hutton suffers from some form of dyslexia, nevertheless, he has been able, on his own admission, to carry out his normal day to day activities and his dyslexia does not appear to have affected the manner in which he lives or the manner in which he has conducted his employment. Whilst having a great deal of admiration and sympathy for Mr Hutton we cannot find in his favour. He does not suffer from a disability within the meaning of section 1 of the Disability Discrimination Act 1995. This application fails."[5]Mr Burns on behalf of the appellant has, putting it as gently as possible, said that this is a decision that falls far short of being a decision which deals with the issues appropriately. He notes of course the definition in his skeleton argument of disability if a person has "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities."[6]The guts of Mr Burn's argument is this: that the tribunal have made general and stereotyped assumptions and have consistently failed to look at the guide notes, the Code of Practice or Goodwin v Patent Office [1999] ICR 302 . For example, says Mr Burns, if you look at the guidance notes which tribunals under section 3(3) are to take into account, the guidance notes in terms refers to dyslexia as being a disability (C 12). Now Mr Burns does not immediately say "well look because the guidance notes refer to it therefore that is the end of the matter". His argument is not as crude as that, but what he points out that the Code of Practice at 4.12, for example, a person who has dyslexia us specifically mentioned:
"A [ person ] who is disabled by dyslexia applies for a job which involves writing letters within fairly long deadlines. The employer gives all applicants a test of their letter-writing ability. … [ The person ] would be substantially disadvantaged compared to non-disabled people …. "
Mr Burns points out is that in the Code of Practice under "Reasonable adjustment", and the Guidance Notes, both deal with a person who has dyslexia. All we can say is that if the tribunal had had regard to the guidance notes and the Code of Practice we think it would have had some considerable impact on them when they saw that dyslexia was actually cited. Moreover, Mr Burns says with some considerable force, that the tribunal have misconstrued what is meant by day-to-day activities and if one goes to the guidance related to that definition:
"C2. The term "normal day-to-day activities" is not intended to include activities which are normal only for a particular person or group of people. Therefore in deciding whether an activity is a "normal day-to-day activity" account should be taken of how far it is normal for most people and carried out by most people on a daily or frequent and fairly regular basis. C3. The term "normal day-to-day activities" does not, for example, include work of any particular form, because no particular form of work is "normal" for most people. In any individual case, the activities carried out might be highly specialised. The same is true as playing a particular game, taking part in a particular hobby, playing a musical instrument, playing sport, or performing a highly skilled task. Impairments which affect only such an activity and have no effect on "normal day-to-day activities" are not covered. The examples included in this section give an indication of what are to be taken as normal day-to-day activities."
The guidance then sets out a number and the matter which is relied upon in particular is the "memory or ability to concentrate, learn or understand" at C20. It is quite clear, looking at the decision, that although the tribunal correctly direct themselves as to the law in paragraph 7, nevertheless all the examples they quote in the decision are examples are work-related and there is no analysis in the decision of the tribunal, which is very short, of what could be said to be a widespread and comprehensive review of the definition of day-to-day activities as interpreted in the guidance notes. Moreover the point is made that the tribunal does not at any time show that it has considered the case of Goodwin v Patent Office , where Morison J, then President of the EAT, set out a number of guidelines which tribunals were advised to consider. In particular what was stressed was that the:
"the focus of attention required by the Act of 1995 is on the things the applicant either cannot do or can only do with difficulty, rather than on the things the person can do"
(at page 309). This decision of the Employment Appeal Tribunal made it clear that the tribunal should adopt an investigative role and inquisitorial element; that the tribunal should bear in mind that with social legislation of this kind a tribunal should adopt at purposive approach. A person with a disability will often, out of a matter of dignity, answer and say that he or she can cope, yet their ability to lead what would generally be construed as a normal life pattern had been severely compromised.[7]It is quite clear what this tribunal did was to look down the appellant's curriculum vitae, say he has coped well in the past, and he is not disabled. With the greatest of respect, that did not do justice to the issues that were before them. In particular, it does not seem that the tribunal have carried out any balanced judgment of his day-to-day as opposed to his work-related activities. It is said, with a measure of force, that the tribunal erred in forgetting that measures taken to correct an impairment must be discounted when assessing the substantial adverse effect on normal day-to-day activities. (Schedule 1, paragraph 6.)[8]Mr Bennison has batted bravely on what he has the realism to admit is a somewhat sticky wicket. He has referred us to paragraph 7 of the tribunal's decision. He argues there is nothing inherently wrong about the tribunal's conclusion. The difficulty about that argument, if we may so, is that the evidential and legal reasoning which lay behind that conclusion is not evident from the decision. We are bound to say that if any tribunal had appreciated that dyslexia was cited in terms in the guidelines and the Code of Practice they would immediately have seen an amber light before reaching such a brisk decision as they did. The reality is that this subject demanded and deserved greater attention than this tribunal gave to it. We are concerned, we make no finding about it, that it is by no means clear how long the tribunal actually did consider the matter. The applicant's estimate is half an hour and then ten minutes to consider it. The respondent thinks it took rather longer. Both of them are straightforward people doing there best to assist us and it is inevitable recollections will have failed.[9]We want to say this: tribunals often suffer, as do other areas of the law, from a heavy workload. We are not presuming to lay down in tablets of stone the formula that should be adopted. What we are asking is that discretion be used by each tribunal depending on the facts of the individual case. By a letter dated 26th July 1999, the tribunal defined the issues:
"(i) is the Applicant disabled within the definition contained in the Disability Discrimination Act 1997; (ii) was the Respondent aware of his disability? (iii) did the Respondent for a reason which related to the Applicant's disability treat him less favourably than he treated or would treat others to whom the reason does not or would not apply; and (iv) cannot show that the treatment in question is justified?"
The letter then went on to set out a preliminary hearing and gave certain directions.[10]We are bound to say that we think it would have been far more helpful had the tribunal heard the whole case lock, stock and barrel. They would then have been in a position to adjudicate upon whether or not the respondent had dismissed the appellant for a reason relating to his disability or whether he had not. They might have found that reasons that were given by the respondent for dismissal which were perceived as a species of conduct and inefficiency were in fact a matter which related to his disability due to dyslexia. They may or may not have found that. They may have found that that the reason the appellant was dismissed was nothing to do with his dyslexia but was to do with his attitude. All these matters would have thrown light on the fundamental question they were considering. Moreover it would save the parties time, in the long run. It is the experience of this tribunal that by trying to answer questions piecemeal often what happens is that cases yo-yo between this tribunal and the Employment Tribunal and back again for another aspect of the same case to be heard. If one can give an example, in personal injury cases, although not invariably the case, on many occasions where a judge, although he finds against a claimant, nevertheless goes on to assess damages. Sometimes the judge does it of his own initiative; other times he is asked to do it. If he is successfully appealed on liability by the disappointed claimant, there is still an award of quantum that stands there. If the claimant or the defendant disagree with the quantum they can then appeal that as well. It is extra work for the judge but in the long-term it saves time and effort. We do with great respect say that where there is an issue as to why the respondent dismissed the appellant, hearing that evidence may very well throw light on whether or not the person was to be regarded as disabled and there is likely to be a far more penetrating analysis of what happened, than certainly occurred in this rather short tribunal decision.[11]We have come to the view that this case should be remitted. We think that it would be wholly wrong for us to pronounce that the appellant does come within the Act. Mr Burns, with realism, appreciates that he cannot spend the bulk of the hearing saying "this is an inadequately reasoned decision" and then expect us to reverse its findings. It is his case that no proper investigation took place. Moreover, it will give, if we may say so, the respondent an opportunity to be heard as to the merits, if our direction and suggestion is agreed that everything is heard at the same time.[12]We invite the tribunal which considers the matter to consider looking at the overall case rather than dealing with it in discrete parts.