MR P H KIRBY v HAYES DISTRIBUTION LTD [2002] UKEAT 0980_00_1605

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0980_00_1605Case No Appeal No. EAT/0980/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P H KIRBYAPPELLANTHAYES DISTRIBUTION LTDRESPONDENT
Before
Her Honour Judge A Wakefield Mr P DawsonDate 16 May 2002
[1]APPEARANCES For the Appellant MR T R NAYLOR (Representative) Personnel Advisory Services 49 Warrington Road Cuddington Cheshire CW8 2LN For the Respondent MR D DOVAR (of Counsel) Messrs Lloyd & Associates Solicitors 48 Onslow Gardens London SW7 3PY HER HONOUR JUDGE A WAKEFIELD This is an appeal by Mr Peter Kirby against a decision of an Employment Tribunal sitting at Leicester on 11 July 2000 by which his complaints of unfair dismissal and disability discrimination were dismissed.[2]The brief background facts were that the Appellant had been employed by the Respondent since 22 June 1999, latterly as Training Officer. Soon after commencing work he lost part of the sight in one eye and subsequently suffered a similar loss of sight in the other eye. He retained partial sight but was registered blind in August 1999. In consequence of this disability he was away from work from August 1999. The Respondent's Human Resources Department, headed by Mrs Jones, commenced investigations into the implications both to the Respondent and to the Appellant of this disability, including health and safety issues. In February 2000 there arose an alteration in the requirements of the Respondent as to the work to be done. The Human Resources Department were told that some thirty to forty members of the workforce would have to be made redundant. The Appellant was dismissed by the Respondent with effect from 21 February 2000 purportedly by reason of redundancy.[3]The principal issues before the Employment Tribunal were; what was the reason or principal reason shown by the Respondent for the dismissal, was the dismissal for that reason fair or unfair and had the Respondent discriminated against the Appellant within the meaning of the Disability Discrimination Act 1995 ? Having made findings of fact in accordance with those already summarised in this decision the Employment Tribunal continued in paragraphs 13, 14 and 15 of their decision, sent to the parties on 18 July 2000, as follows:
"… There was a redundancy situation. In the light of that information Mrs Jones was told to look for people that could be made redundant. There would have to be between 30 and 40 people involved. Mrs Jones had no doubt been involved in her career in the past in redundancy exercises, they are not happy events and they have to be done professionally. Mrs Jones could see that the applicant's job as a Training Officer had now been satisfactorily covered by those that he had trained. The fact remains that the company had managed for seven months without him. Not least because he had done such a good job in training his deputies, which was part of his original job. The fact remains is that we can see that any employer in these circumstances would look to his job as being a candidate for a redundancy situation. That is what happened. As a result the applicant was visited on 18 February and a discussion took place between Mrs Jones and the applicant when he was told that his job was going to be made redundant unless there were very clear circumstances in which redundancy was not demanded. Consideration was given by Mrs Jones to alternative work albeit at a lower rate of pay within the office, as a clerk. The applicant made it quite clear that he did not want alternative employment as a clerk. He was told to think about it over the weekend and on the Monday 21 February 1999 he said that he entirely understood the circumstances, he understood why there was redundancy situation, that he did not want further work as a clerk and he accepted his redundancy. He did not raise any issue on appeal or exercise an grievance procedure."
The Employment Tribunal then concluded as follows in their paragraphs 16 to 18:
"First of all we hold that his disability was not the principal reason for his dismissal. The principal reason for his dismissal was the redundancy situation. We also hold that the respondent acted fairly in the way they conducted that redundancy dismissal. Then consulted about the issue. Their decision was justifiable. In those circumstances the dismissal was fair. We then go to the issue whether the applicant had been treated differently by reason of his disability. What we can say in this case and this is the worry, is that if he had not been disabled and away from work for seven months, we have no doubt the respondent would not have dismissed him. The reason for that is not his disability, however, the reason for that is that his absence showed up the good job he had done in training others. Whilst it is a fact he was disabled; and he was dismissed we cannot find as a fact that the respondents discriminated against him or failed to make reasonable adjustments because of his disability. In those circumstances, although we would like as I would suspect everyone in this room would, to give this man a glimmer of happiness, we cannot. To do so we would be acting out of sympathy. This case is dismissed."
[4]In that approach in the decision, the Employment Tribunal are criticised in this appeal on five grounds. Firstly, that there was a failure to deal in any way with the argument put forward on behalf of the Appellant that the more than twenty employees potentially affected by the redundancy programme were consulted pursuant to Section 188 of the Trade Union and Labour Relation (Consolidation) Act 1992, whereas the Appellant was not included in that consultation. Secondly, that the Employment Tribunal failed to set out the relevant law on disability discrimination, and the way in which they had directed themselves in accordance with that law having regard to the facts of the case. We note that there is in particular a complete absence in the decision of any reference to a possible requirement of the Respondent to make Section 6 adjustments. Thirdly that there was a misdirection or a perversity in finding that there had been proper consultation with the Appellant prior to the dismissal. Fourthly, that there are ambiguities and apparent contradiction in the conclusions. Finally, that it is impossible for the Appellant to know from the decision whether the Tribunal approached the matter in the correct way and why his complaints were dismissed.[5]We are in sympathy with each of these criticisms of the decision. The Respondent has conceded that the wording of parts of the decision may be, to use its counsel's word "unfortunate". It has been suggested that we can say nevertheless that the conclusion is sound, based on the facts as found and that we should not interfere with the decision. We were referred by counsel for the Respondent to a passage in the judgment of Sir John Donaldson, Master of the Rolls, in the case of Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 . In the Court of Appeal Sir John Donaldson said this (at page 818):
"Once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection. It is only if it is plainly and unarguably right not withstanding the misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact."
Wholly in accordance with that passage, we find that this decision cannot stand. The case is remitted to be reheard by a freshly constituted Employment Tribunal.