MR N IVANOV v ADTRANZ SIGNAL (UK) LTD [2000] UKEAT 220_00_0906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 220_00_0906Case No Appeal No. EAT/220/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N IVANOVAPPELLANTADTRANZ SIGNAL (UK) LTDRESPONDENT
Before
Mr Justice LindsayDate 9 June 2000
[1]APPEARANCES For the Appellant MISS S ROBERTSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Mr Nikolay Ivanov in Ivanov against Adtranz Signal (UK) Ltd. On 3 June 1999 Mr Ivanov lodged an IT1 for unfair selection for redundancy and disability discrimination. The Company filed an IT3 claiming that he had been fairly selected for redundancy. Although he mentions disability discrimination in box 1 of his IT1, in box 11 which says "Please give details of your complaint" he does not, in fact, follow it up with any particular allegation of discrimination based on disability.[2]The Company responded by an IT3 that does not take up the point of disability discrimination. I do not think very much can be made of the fact that it does not deny disability discrimination because disability discrimination had not been amplified in the box 11. The matter went forward on the basis that the Company had filed an IT3 claiming that Mr Ivanov had been fairly selected for redundancy.[3]There was a hearing at Reading under the chairmanship of Mr J.R. Hardwick spread over some three days in December 1999. The decision was sent to the parties on 13 January 2000 and it was unanimous that the Applicant was not unfairly dismissed and that the Applicant's complaint that he was discriminated against contrary to the Disability Discrimination Act 1995 failed.[4]Mr Ivanov himself lodged a home-made (so to speak) Notice of Appeal on 24 February and in advance of the hearing we looked at the papers in relation to that and to the argument that was sought to be raised and we are bound to say that our discussions led us to the view that the grounds raised by Mr Ivanov in his own Notice of Appeal disclosed no error of law at all. However, this morning Miss Robertson, under the ELAAS scheme, has appeared for Mr Ivanov and her address has been a valuable example of just how helpful the ELAAS scheme can be because, undoubtedly, without her assistance, Mr Ivanov's Notice of Appeal would have failed today and have gone no further and yet she has produced an argument which, it seems to us, merits going forward. There is going to need to be comprehensive amendment to the Notice of Appeal because Miss Robertson, rightly in our view, accepts that the present Notice of Appeal discloses no error of law. So we may as well, so to speak, throw away that part and start afresh.[5]The grounds which Miss Robertson asks us to consider to go forward are, first of all, so far as concerns disability discrimination, that the Tribunal, in their paragraph 15, wholly failed to come to grips with it. In that paragraph they say:
"15. We deal briefly with the complaint under DDA because we have to say we see nothing in this. For a start the Applicant led no real evidence to show that he had a disability within the ambit of section 1 and schedule 1 of the Act. It is for the Applicant on the balance of probabilities to show that he has a disability and he has not done that."
[6]We have not got the papers that were laid before the Tribunal but we are told that amongst those papers was a report from a doctor that plainly disclosed sufficient material to justify a finding of disability. Whether the report, properly examined, does come up to that or not we cannot judge but that is the way the matter is argued before us and, moreover, Miss Robertson says that there was no counter to that in the sense that there was no countering informed medical evidence and that for the Tribunal to say that the Applicant led no real evidence is really a misunderstanding of the position. We find it difficult to rule in any comprehensive way on the issue. As we say, we have not had the doctor's reports laid in front of us, but we are disposed to take the view that there is an arguable point - and, of course, at this stage we need say nothing more than arguable - that the Tribunal misdirected itself in relation to evidence and the weight of evidence and how to treat unopposed evidence on the subject of disability discrimination. So we have a case, in other words, in which the matter is going forward to a full hearing.[7]There are other grounds that Miss Robertson has raised. She says that, in effect, the redundancy consultation process disclosed too little, too late. Mr Ivanov was very near the cut off point. The cut off point was 16 points, he scored 14. If only he had been told the score earlier than he was, further efforts might have been made, particularly emphasising the fact that he was disabled and he might have escaped redundancy, if only that had been made clear to him. He says that the score and cut off point was withheld from him, not as I understand it, as a matter of policy but as a matter of fact, until a late stage. It was not until his stage 3 grievance, on 21 May 1999, he says that it was disclosed to the Applicant that his score was 14. When he first learned that the cut off point was 16 is not clear. We are bound to say that there are possible weaknesses in the argument because the Tribunal went into the consultation process in some detail and, in their paragraph 22, concluded that Mr Case had come over as a fair and even-handed Manager whose evidence had impressed the Tribunal. The Tribunal continued, relative to redundancy assessment:
"We find that he carried out his assessment of all those employees in an objective, structured and fair manner. "
[8]However, if the case is going forward on disability, I think we can take a fairly relaxed view as to the point which is sought to be raised in relation to redundancy consultation and, in any event, we do not say that it is completely unarguable; so that that ground, too, is to be permitted.[9]Next, Miss Robertson raises a ground relating to breach of the Code of Practice and this is a ground that emerges from the fact that at stage 2 (I think it was) of the Grievance Procedure on 30 March 1999 Mr Wilson, who was the Director of European Products, referred to an incident in July 1997 for which the Applicant had had a written warning. There was no point taken below as to that representing any breach of a Code of Practice and it is arguable that the Employment Appeal Tribunal case which says that in such circumstances it is incumbent on the Employment Tribunal itself to raise the point is not necessarily to be followed on the particular facts of this case. But we cannot say that the point is so unarguable that it would not be fit even to allow it to be framed by Miss Robertson or by other advisers on Mr Ivanov's behalf and we think that that ground also should be permitted to go forward.[10]Last of the four grounds is this. One of the ways in which the Company explained why Mr Ivanov had not been orally consulted earlier about redundancy was that he was off sick and was visited at home and that, in the course of the visit, before Mr Ivanov had been spoken to, Mr Case, who had gone there with a view to talking about redundancy to Mr Ivanov, was met by the Applicant's wife who said:
"Please do not tell my husband that he is redundant. It may kill him."
It was disputed by the Applicant at the hearing below that his wife had ever said that.[11]Mr Case's evidence on the point was accepted and the drift of the point was that Mr Case thought that Mr Ivanov had angina; he looked pale and looked ill and it did seem to Mr Case, as a matter of common decency, appropriate not to mention to Mr Ivanov that he was either selected for redundancy or under threat of it, when his wife was so concerned about the effect that would have and when Mr Case thought he had angina.[12]It is Mr Ivanov's instruction to Miss Robertson today that he only received on the very morning of the hearing below the papers from the Company that indicated the conversation which included the allegation that his wife had said "Do not tell my husband that he's redundant, it may kill him"; that the point having arisen so late, Mr Ivanov at the hearing asked the Tribunal if he could call his wife or could produce a tape recording of the conversation. It might be a little surprising that the conversation was taped but, anyhow, that apparently is what is going to be said. The Tribunal nowhere in the decision refer to the fact that there had been an application for the calling of the wife or the production of a tape. It could be that on what was, on the Tribunal's reasoning, a crucial issue, Mr Ivanov was deprived of an opportunity to put his case and that it was not his fault that he was so deprived but that the deprivation really was a consequence of the very late production by the Company of their Witness Statement, a lateness which we are told was in breach of orders made or directions given. Again that is a point which we cannot say is unarguable on his behalf as an error of law on the Tribunal's part and we allow the matter to go forward.[13]Accordingly, there needs to be a comprehensive amendment of the present Notice of Appeal by the striking-out in total of the grounds at the moment framed and their substitution by the four grounds that we have indicated we permit to go forward. We give leave to Mr Ivanov to amend by such a striking-out and such an addition within 14 days from today. If the Notice of Appeal is not amended, well, of course, then the full hearing would only hear the unamended form which, as Miss Robertson accepts, would be doomed to fail.[14]So far as concerns Chairman's Notes, we think the more convenient course is that that subject is dealt with when the matter is not merely ex parte, as it is today, but when both sides are in a position to make some input to the question. Also, it will be valuable, if Mr Ivanov is able to get legal representation for the full hearing, that whoever is to be responsible for that legal representation at the full hearing considers what notes are necessary and so on.[15]So the better course, rather than our ruling upon Chairman's Notes now, is that the matter be dealt with in the first instance by writing to the President. I will be able to judge on application in writing from both sides, I would hope, just what notes are necessary and what are excessive. I suggest that course instead of having a directions hearing because a directions hearing involves money and delay which the written procedure I suggest, I would hope, avoids. If, when the written applications are made and are ruled upon, one side or another is dissatisfied, well then, of course, there would have to be an oral directions hearing but one would hope that it could be avoided.[16]So we give leave for the amendment of the Notice of Appeal, as we have indicated, and we deal with Chairman's Notes as we have indicated but we cannot leave the case without expressing to Miss Robertson our gratitude, which Mr Ivanov certainly should thoroughly endorse, for the comprehensive turnabout that she has managed to secure on Mr Ivanov's behalf. It is an illustration of just how valuable the ELAAS scheme can be.