GARDNER MERCHANT LIMITED v MRS G FERRARI [2001] UKEAT 0930_00_0211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0930_00_0211Case No Appeal No. EAT/0930/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
GARDNER MERCHANT LIMITEDAPPELLANTMRS G FERRARIRESPONDENT
Before
His Honour Judge J R ReidDate 2 November 2001
[1]APPEARANCES For the Appellant MR ALEX LOCK (of Counsel) Messrs Beachcroft Wansbroughs Solicitors 10-12 Victoria Street Bristol BS99 7UD For the Respondent MR A CARPENTER (Representative) Messrs Carpenter & Associates 72 Brighton Road Surbiton Surrey KT6 5PP HIS HONOUR JUDGE J R REID QC This is an appeal by Gardner Merchant Limited against a decision of an Employment Tribunal at London North, the Chairman being Mr Rabin, which was promulgated on 14 June 2000 following a hearing in January and May 2000. By that decision the Tribunal, having at an earlier stage in the proceedings held that the Applicant, Mrs Ferrari (nee McGuire), was disabled within the meaning of Section 1 of the Disability Discrimination Act 1975 , went on to hold in these terms:
"The unanimous decision of the Tribunal is that the Applicant was discriminated against by reason of her disability, pursuant to section 4 (2) (d) and section 6 (1) of the Disability Discrimination Act 1995."
They then went on to dismiss a claim of breach of contract.[2]There is one ground of appeal presently argued, being the only ground that was permitted to go forward following a Preliminary Ex Parte Hearing before His Honour Judge Pugsley, Mr Fitzgerald and Mr Edmondson on 5 December 2000. That ground is this:
"The ground upon which this appeal is brought is that the Employment Tribunal erred in law in that it misapplied, alternatively misdirected, itself in drawing an inference of discrimination in that it failed to properly, or at all, consider the Appellant's reason for dismissing the Respondent."
[3]The facts are these. Mrs Ferrari, as she now is, was employed by Gardner Merchant as an Area Manager, a CAE they were called, on 26 August 1997. On 22 May 1998 she went on sick leave. On 16 June 1998 it was confirmed that she had problems with arthritis in her spine and a problem with her colon. On 7 July she visited a back specialist. On 13 July she returned to work, told Ms Laraine Kemp, of Gardner Merchant, of her back problem but then had to go off work again that same day owing to the pain she was suffering. She returned to work on 27 July. Thereafter certain changes were made to assist her in her work. On 11 August she told Laraine Kemp of the diagnosis that had been made on her. At that point an unsuccessful attempt was commenced to obtain medical reports relating to Mrs Ferrari from her Doctor. Those attempts went on right through the remainder of Mrs Ferrari's employment. On 31 August the company's bonus year ended.[4]On 5 November Mrs Ferrari spoke to Mrs Oughton because she was finding that the strain of continuing to work in pain and discomfort was getting too much for her. Mrs Oughton suggested that she speak to Laraine Kemp about a transfer to a position requiring less travelling or to which she could drive and take her files with her in the car. The same day Mrs Ferrari sent a letter to Laraine Kemp in which she requested a transfer on medical grounds. The Tribunal found that that letter was sent and received although it was denied by the Respondent below, Gardner Merchant. On 11 November Mrs Ferrari was called to an investigative meeting with Mrs Oughton owing to some accountancy problems in relation to one of their accounts, Guardian Properties, and some problems with some invoices which were being submitted. On the same day there was a meeting with Laraine Kemp. On 13 November the other CAEs all got their bonus which was due in respect of the year which had ended on the previous 31 August. Mrs Ferrari did not. She eventually got £300 of that bonus in December and much much later, after the start of the hearing in the Employment Tribunal, she got the remaining 80% of the bonus, another £1200.[5]On 17 November there was a function for Guardian Properties. Mrs Ferrari was supposed to be in charge of that. She left before the function started because there was another function that she wished to attend which was a champagne tasting event for Gartmore. It was found that she left no one of sufficient seniority in charge and as was almost inevitable in the circumstances everything that could go wrong did go wrong at the Guardian function. No fewer than 7 separate complaints were made afterwards. On the following day, on 18 November, she was disciplined by Mrs Oughton and given a final written warning against which she appealed. That appeal was never in fact disposed of because she had been dismissed before the appeal could be heard.[6]On 19 November there was an awards lunch ceremony to which she was not invited. This was the star team awards lunch. Mrs Ferrari described it as the most important company event in the year for the staff. Each district puts forward their nominations for the 5 categories for each division. The winners from each division go forward to the national final. Out of 100 units in London, she said that her teams had won 3 out of a total of 5 categories to represent London, including the overall star team award. She said that historically the team manager and the CAE would be invited to the award luncheon final, but she was told when she asked Mrs Oughton that there were no tickets left. It was never explained why she was not invited and why this apparent slight had taken place. On 26 November there was a meeting with Guardian Properties at which Mr Wyn Roberts attended with Mrs Ferrari in order to try and explain away the mistakes which had occurred at the Guardian function. Mrs Ferrari was under instructions not to say anything and not to try and pass the buck. Regrettably she was unable to keep her mouth shut and the following day Mr Roberts suspended her.[7]There then followed on 14 December a disciplinary hearing conducted by Mr Roberts who occupied all the conceivable positions in the hearing, in that he was the witness for the prosecution, he was the person who had conducted the investigation, he was the jury in that he decided whether or not there had been misconduct and he was the judge in that he imposed the sentence, which was that Mrs Ferrari should be dismissed. On 4 January Mrs Ferrari appeal by letter. The terms of the appeal were:
"(1) The accusation of 'negligence' levied against me is completely unfounded. I've never been negligent in my entire working life and wasn't on this occasion either." (2) I did respectfully act in accordance with the request made of me by Mr Wyn Roberts at the client meeting on 26 November 1998."
At the disciplinary meeting she made no mention of her disability but when the appeal, pursuant to that letter, was heard on 26 January she did mention for the first time the disability and she asserted that the company's attitude changed towards her when she came back from sick leave. She asserted that the Guardian function was being used as a way of getting rid of her. Mr Forbes, who conducted the appeal, listened to it and his evidence was that:
"… had she shown some contrition and willingness to learn from her mistakes, he might have reconsidered the penalty, but as she continued to maintain her position, he confirmed the dismissal, which he concluded was fair and reasonable."
On 19 February 1999 she made her application to the Employment Tribunal. In June of 1999 she in fact became Mrs Ferrari by marrying.[8]The Tribunal set out the law at paragraphs 26 through to 32 of their decision and no objection is taken to the manner in which they have done so. They then went on to record the submissions made by each party in some detail and at paragraph 39 they reached their conclusions. They made a number of findings of fact. I think it is fair to say that in general they were unimpressed with evidence given on behalf of Gardner Merchant where there was a conflict.[9]In paragraph 42 they turned to the matter which underlies this appeal. They said this:
"As both Mr Carpenter and Mr Lock acknowledged, [they being the 2 representatives of the respective parties] the fundamental question is whether Mrs Ferrari was dismissed for legitimate business reasons, namely her failure to take responsibility for the Guardian Properties function and afterwards to accept that responsibility when things had gone wrong, or was it because she, as a person suffering from a disability, was becoming an inconvenience and they would rather be rid of her than have to comply with all of the requirements, both statutory and practical, which are laid upon an employer in relation to a disabled employee?"
So there they clearly had in mind the question that they had to ask on this central part of the case. The position was that Mrs Ferrari had been dismissed and that amounted to discrimination against her unless the employer could show that the treatment in question was justified. The Tribunal then went on:
"Although nothing was said by Mrs Ferrari about her disability during the course of the investigation or disciplinary hearing, she did refer to it at the appeal. While Mr Roberts laid great emphasis on Mrs Ferrari's refusal to accept responsibility for the mistakes of the Guardian function, it seems to us that he has rushed to judgement in concluding that she must be dismissed. We derive some support for that view from a document which appears at page 128 of the bundle. This is a note in Mr Roberts' handwriting and which appears to have been made at the same time as he interviewed Jeremy, the chef who was at the Guardian function, that interview taking place some time before the disciplinary hearing. The note is headed, "1. Negligence (Gross) 2. Blatant disregard of instructions"
. Mr Roberts was unable to give any satisfactory explanation as to why he made that note and we infer that it was made in advance of the hearing and thus demonstrated his state of mind before having heard Mrs Ferrari's explanation." That therefore was the primary finding of fact and the inference that was drawn from the note was one which in our judgment the Tribunal was entitled to draw.[10]What is said, on behalf of the Appellants, Gardner Merchant, is that the Tribunal does not consider the explanation given by Gardner Merchant for the dismissal, namely good business reason, the failure to take responsibility of the Guardian Properties function, and afterwards to accept responsibility when things had gone wrong, but they had simply disregarded it. Is that a fair criticism? Before answering that question one must go on to look at what were described by the Tribunal as 'a number of straws in the wind' which confirmed to the Tribunal that Mrs Ferrari's disability was the reason for her less favourable treatment, ie her dismissal.[11]Those 3 straws in the wind were as follows, firstly, the failure to invite Mrs Ferrari to the star team awards lunch on 19 November 1998 which was unexplained and in the absence of any satisfactory explanation this treatment, clearly less favourable than the treatment of the other CAEs, was something from which discrimination could be inferred. Secondly, the failure to pay Mrs Ferrari's bonus. The payment was made extremely late. There was no satisfactory explanation as to why the payment was made so late. In those circumstances, again, the Tribunal inferred, as it was entitled to, that this was:
"… due to Mrs Ferrari's disability and the desire of the Respondents to treat her less favourably because of it."
The third matter was the imposition of the final written warning on 18 November which was confirmed by a letter on 23 November and the delay in the processing of the appeal against that decision. The Tribunal said, as they were entitled to, that in the absence of any satisfactory explanation as to why Gardner Merchant failed to follow its own procedure in dealing with a request for an appeal expeditiously they were entitled to infer that this was because of Mrs Ferrari's disability.[12]They had therefore in front of them 3 straws in the wind and they had to look at which of 2 explanations they preferred. They said at the end of paragraph 43:
"Taking all of these matters into account, we conclude that we can make an inference of disability discrimination in relation to Mrs Ferraris' dismissal and her less favourable treatment in respect of the matters referred to above."
They had clearly in their minds, and in our view it is plain enough when one reads the judgment as a whole, the explanation which had been given by Mr Roberts in relation to the reason for her dismissal and they were not satisfied by it. What they had was a disciplinary process which was manifestly deficient and hopelessly flawed. They had no explanation as to how it came about that Mr Roberts had made up his mind before the disciplinary process hearing was conducted.[13]In our judgment when one looks at what is said it is clear that the Tribunal have in mind the explanation given, and it is clear that basing themselves very largely on the pre-judgment by Mr Roberts they have drawn an inference from it. That is an inference which in the light of the other straws in the wind they were entitled to draw. It is a decision which when one looks at the totality of the judgment cannot have left Gardner Merchant in any doubt whatsoever as to why it was that the Tribunal held that Gardner Merchant could not show that the treatment in question was justified. Gardner Merchant may not like the findings of fact which were made about their various witnesses and may strongly disagree with them but those findings of fact having been made, the correct question having been posed, and the answer given in the form in which it was, it cannot in our judgment properly be said that the Tribunal erred in drawing an inference of discrimination or that it failed properly or at all to consider the Appellant's reason for dismissing the Respondent. They did consider the reason which was put forward. They did not accept that that was indeed the reason. In those circumstances we take the view that the appeal fails and must be dismissed.