TINY COMPUTERS LTD v MR T C STEELE [2000] UKEAT 816_99_2106

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 816_99_2106Case No Appeal No. EAT/816/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
TINY COMPUTERS LTDAPPELLANTMR T C STEELERESPONDENT
Before
His Honour Judge Peter Clark Mr P A L ParkerDate 21 June 2000
[1]APPEARANCES For the Appellant MR S CHEETHAM (of Counsel) Messrs Ingram Winter Green 26 - 28 Bedford Row London WC1R 4HE JUDGE PETER CLARK By an Originating Application presented to the London (South) Employment Tribunal on 11 November 1998 the Applicant, Mr Steele, brought a complaint, among others of disability discrimination against the Respondent, Tiny Computers Ltd (the company), by whom he was employed from 31 March until 25 September 1998.[2]The Company took the point that the Applicant was not disabled within the meaning of Section 1 of the Disability Discrimination Act 1995. That point was in turn taken as a preliminary issue before an Employment Tribunal (Chaired by Ms C E Taylor) sitting on 27 April 1999. By a decision with extended reasons dated 4 May 1999 the Employment Tribunal resolved that issue in favour of the Applicant. They found that he was disabled for the purposes of Section 1 of the Act. His disability related to his ability to hear.[3]Against that decision the Company has appealed. The sole basis of the appeal is that the Employment Tribunal made findings of fact which were inconsistent with the evidence. We accept that a point of law may arise for argument where there is no evidence to support a material finding of fact. It is not enough for the Appellant to contend that there was, for example, insufficient evidence to justify a particular finding. See British Telecommunications Plc –v- Sheridan (1990) IRLR 27 .[4]The appeal was first listed for preliminary hearing before a division presided over by Lindsay J on 22 October 1999. On that occasion the matter was adjourned in order to obtain the Chairman's Notes of Evidence and such comments as the Chairman saw fit on the way in which the case was put in a skeleton argument prepared by Mr Cheetham for the purposes of the original preliminary hearing.[5]The Chairman has provided her Notes of Evidence and in these circumstances the matter now returns to us on the restored preliminary hearing.[6]Mr Cheetham accepts, we think fairly that the Chairman's Notes of Evidence are not as helpful to his cause as they might have been. The way in which the case was put originally on behalf of the Company, relied to some extent, on notes taken at the Tribunal hearing. There has been no attempt to invite the Chairman to add to or in any way alter her Notes of Evidence. In these circumstances we must view Mr Cheetham's submissions before us on the basis of the Chairman's notes.[7]He directs his attack to the concluding paragraph of the Tribunals reason, that is paragraph 14, and in particular these two findings:
"(1) The Tribunal find that the Applicant cannot hear or understand normal speech without the assistance of his ability to lip read; (2) He cannot hear speech at all when the background is moderately noisy and is therefore unable to hold a conversation in those circumstances."
[8]Mr Cheetham has referred us to passages in the Chairman's Notes of Evidence, which he submits, are inconsistent with those findings. We have to view the evidence as a whole and looking at the Notes of Evidence we are quite satisfied that there was some evidence to support both of the findings under attack.[9]In these circumstances, it seems to us that this appeal is bound to fail and accordingly we shall dismiss it at this preliminary hearing stage.