MEDICAL SICKNESS LTD v MARTYN LLEWELLYN SMITH [2001] UKEAT 1201_00_1903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1201_00_1903Case No Appeal No. EAT/1201/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MEDICAL SICKNESS LTDAPPELLANTMARTYN LLEWELLYN SMITHRESPONDENT
Before
Mr Justice Hooper Ms G Mills Mr J C ShrigleyDate 19 March 2001
[1]APPEARANCES For the Appellant MISS L CHUDLEIGH (of Counsel) Instructed by Messrs Lee Crowder Solicitors 39 Newhall Street Birmingham B3 3DY For the Respondent THE HONOURABLE MR JUSTICE HOOPER A Preliminary Hearing The Appellant, Medial Sickness Ltd in an amended notice of Appeal for which we have given leave today makes a number of criticisms of a decision of an Employment Tribunal sitting at Nottingham on 14-16 February 2000 and 20-23 June 2000.[2]The Tribunal found in favour of the Appellant in respect of various complaints of disability discrimination.[3]There are a number of grounds raised. We have heard argument on what Miss Chudleigh described as the best ground, to be found in the amended ground of appeal in paragraph 3. Before the Act came into force the Respondent was employed by the Appellant. It was known before his employment that he was suffering from problems with his right hip caused by osteoarthritis and that he also had rheumatoid arthritis. When he was employed he was told that he would be excluded from the sick pay scheme insofar as absences from work were to do with those problems. Ultimately he did take off a considerable period of time to have an operation.[4]In order to find discrimination in respect of the sick pay scheme, the Tribunal would have to find some detriment, detriment being a necessary component of discrimination. During this period when he was off work for the operation, the Appellant appears to have paid the Respondent sums of money roughly in accordance with the sick pay scheme.

(c) (page 11 of the bundle):

"The Respondent is satisfied that they have paid him at least what he would have received had he been fully covered by the scheme."
The Tribunal went on to say:
"Mr Llewelyn-Smith has yet to demonstrate that he has suffered a loss as a result of this partial exclusion and this point is left to the remedy hearing."
[5]Miss Chudleigh in an admirably brief submission makes the point, that unless one finds detriment, there cannot be a finding of discrimination. By finding discrimination without a finding of detriment, the Tribunal have left it open for the Respondent to recover damages in respect of this alleged discrimination. Miss Chudleigh raises other grounds which she can certainly argue, but this ground alone is sufficient to justify this case going for a full hearing.