ROSS BAXTER v POWER LINES PIPES & CABLES LTD [2005] UKEAT 0068_04_3003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0068_04_3003Case No Appeal No. UKEAT/0068/04Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
ROSS BAXTERAPPELLANTPOWER LINES PIPES & CABLES LTDRESPONDENT
Before
Lady Smith Dr A H Bridge Mrs A E HibberdDate 30 March 2005
[1]APPEARANCES For the Appellant Ms M Gribbon, Solicitor Of- Messrs Digby Brown Solicitors Employment Unit The Savoy Tower 77 Renfrew Street GLASGOW G2 3BZ For the Respondent Mr G Keys, Solicitor Of- Messrs Ness Gallagher Solicitors Stewart Chambers 95 Stewarton Street WISHAW ML2 8AG SUMMARY UNFAIR DISMISSAL DISABILITY DISCRIMINATION Whether employee dismissed where employer believed him to have resigned; whether employer had made reasonable adjustments to account for disability and interpretation of s.6 of the Disability Discrimination Act 1995. THE HONOURABLE LADY SMITH: This case concerns the issue of whether or not the claimant was dismissed. The judgment represents the views of all three members who pre-read the relevant papers. We will refer to the parties as claimant and respondent. Introduction[2]This is an appeal by the claimant in those proceedings against the decision of the Employment Tribunal sitting at Glasgow, Chairman, Mr M. W. J. Macmillan, registered with reasons on 25 June 2004. The claimant was represented there and before us by Ms M. Gribbon, solicitor, and the respondents were represented there and before us by Mr G. Keys, solicitor.[3]The claimant claimed unfair dismissal. The respondents contended that the claimant had not been dismissed. They were under the impression that he had resigned. The Issues[4]The issues, as defined by the Employment Tribunal were: Firstly, whether or not the claimant had established, on a balance of probabilities, that he was dismissed by the respondents. At times, in the course of her submissions, Ms Gribbon seemed to suggest that the issue was whether or not the respondents had established that the claimant had resigned but it is clear, in our view, that the issue was correctly identified by the Employment Tribunal. The second issue was whether the respondents had failed in the obligations incumbent upon them in terms of the Disability Discrimination Act 1995. The Facts[5]The claimant was employed by the respondents having commenced his employment as a trainee in June 2001 with a view to being trained as a linesman. He had, however, suffered a serious accident at work on 12 February 2002 and remained absent from work from that date until the time of the events examined by the Employment Tribunal. On 19th August 2002, he telephoned the respondents to speak to Mr Harrison, Jr. regarding some Social Security documents that he required to complete. Mr Harrison was not available that day but he returned the claimant's call on the following day, 20 August 2002.[6]Parties were, to some extent, at odds as to exactly what was said in the course of that call. It was, however, clear, as is recorded by the Employment Tribunal, that the claimant's position was that he had been dismissed in the course of the telephone call and the respondents' position was that he had resigned during it. Parties were agreed that no express words of dismissal or resignation were used. A letter was prepared for lodging with the claimant's solicitor after the telephone call. Although the Employment Tribunal recalled that it was drafted by the applicant, it appears that it was in fact typed by his mother but nothing material arises from that since the claimant's position was that it reflected accurately what had occurred. The terms of the letter are recorded by the Employment Tribunal in paragraph 6 of their decision and extended reasons, at page 4. They also record at the foot of the same page that they were provided with written submissions setting out each party's position clearly and giving references to the evidence relied on by each party in support of their case.[7]The Employment Tribunal's findings were, as set out at p.5, as follows:
"We preferred to look at the actual evidence rather than to draw too many inferences from evidence which was at times quite vague on both sides. We recall Mrs Baxter stating that her son had said he was "more or less" sacked. That did not indicate that specific words of dismissal had been used, and that the applicant was rather unsure of what had actually happened. Secondly, the letter which he drafted to his agent on the evening of the events made reference to a question "if there would be an opening with his company again if and when I was cleared by the doctor to work" (in any capacity). That phraseology clearly indicated to us that the applicant regarded his present employment as being at an end. What was being discussed was possible future employment on different terms and conditions. This is in our view much more consistent with the version of events put forward by Mr Harrison."
Mr Harrison's version of events was, as we have already noted, that he did not dismiss the claimant during the telephone call. Rather, the claimant resigned. The Employment Tribunal continued:
"We therefore concluded that the applicant did advise that he was going to take up full-time further education, and we noted that he did in fact do so. This seemed to us (and also to Mr Harrison) a sensible course of action where it would be at least one year before the applicant could consider gainful employment. There was then a later discussion about an opening in a different capacity "if and when", in other words, conditional upon recovery. In the circumstances, whilst Mr Harrison may have dashed the applicant's hopes for the future about such an outcome, it did not amount to a dismissal from the present employment; that decision had already been taken and had been communicated to him. We can quite understand why the applicant might have been aggrieved by this later exchange; after all, from his perspective, the respondents were the authors of his present predicament, and we could quite understand that he might regard them as having some duty towards him. When the discussion was reported to his parents, again, we could understand their desire to support their son, and encourage him to take up the position that he did. Nonetheless we felt that on the balance of probabilities, the applicant has failed to demonstrate that he was dismissed , either in express terms, or by reasonable inference."
The Claimant's Case:[8]It was submitted on behalf of the claimant that the Employment Tribunal had erred in law/acted perversely by finding that the claimant had not been dismissed. There were two aspects to the submission. Firstly, it was said that no regard had been given by the Employment Tribunal to a vital part of the claimant's evidence namely his evidence that during the phone call on 20 August Mr Harrison had told the claimant that his insurance costs had increased fourfold and that, off the record, he did not wish him to come back to work because he had submitted a claim for personal injury. Secondly, it was said under reference to B G Gale Ltd v Gilbert [1978] IRLR 453, Sothern v Franks Charlesly & Co [ 1981] IRLR 278, and Sovereign House Security Services Ltd v Savage [1989] IRLR 115 that the Employment Tribunal had failed to apply the appropriate legal test when determining whether the claimant had been dismissal or had resigned.[9]As regards the submission that the Tribunal had failed to have regard to a vital part of the claimant's evidence, much was sought to be made of the fact that it was acknowledged on behalf of the respondents in their written submission that the claimant had given evidence to the above effect and that the Employment Tribunal had found him to be wholly credible. There was, it was submitted, no doubt in the claimant's mind about the telephone call. Further, his position was that the letter typed by his mother corroborated his position that he had been dismissed. The submission seemed to be that, in these circumstances, it was incumbent upon the Tribunal to set out the claimant's evidence at length in their decision and reasons. As regards the submission that the Employment Tribunal had failed to apply the correct test in law the argument was that the Employment Tribunal were obliged to consider whether the language used was ambiguous or unambiguous and only if the wording was ambiguous was it appropriate to apply an objective test. Otherwise, it was said the words used were to be accepted at face value which meant that since, according to the claimant, it was not in dispute that Mr Harrison had said that he did not want him to return to work, they were bound to conclude that the claimant had been dismissed. We note, however, from the Employment Tribunal's extended reasons that it is clear that Mr Harrison did not accept that he told the claimant that he did not want him to return to work.[10]A third submission was presented on behalf of the claimant under reference to paragraph 7 of their extended reasons where they comment that the applicant did not appeal against what he took to be a dismissal. It was pointed out that the respondents did not have a formal appeal or disciplinary system at the time.[11]It was submitted that the cumulative effect of the first three grounds was to render the decision "precarious".[12]A fourth submission was presented on behalf of the claimant under reference to the Employment Tribunal's comments at the top of page 2 to the effect that there were some inconsistencies about the claimant's evidence in relation to matters which formed the core of the dispute "particularly in relation to the contents of the telephone conversation with Mr Harrison" . It was said that it was incumbent upon the Tribunal to detail the inconsistencies so that the claimant knew what the evidence was that he gave which was supposed to be inconsistent. It was submitted that this ground alone rendered the decision of the Tribunal "precarious".[13]Within the above submission something was also sought to be made of the fact that the date on the claimant's P45 was 27 August, not 20 August.[14]Whilst it was formally submitted on behalf of the claimant that the appeal under the first four grounds was based on both perversity and error of law it became apparent that the only submission in fact being advanced was that the Tribunal decision was perverse or, as it was put on behalf of the claimant, precarious.[15]A final submission was presented on behalf of the claimant that related to the provisions of the Disability Discrimination Act 1995. It was submitted under specific reference to section 6(3)(f) of the Act, that there was an obligation of the respondents to consider making adjustments so as to enable the claimant to remain in their employment even although not able to attend the workplace at all. The Respondent's Case:[16]It was contended, on behalf of the respondents, that the Employment Tribunal had not erred in law. Nor was their decision perverse. Under reference to the case of Piggott Brothers & Co Ltd v Jackson & ors [1991] IRLR 309 , Mr Keys reminded us of Lord Donaldson's reference to what was said by Lord Russell of Killowen in Retarded Children's Aid Society Ltd v Day [1978] IRLR 128:
"The function of the Employment Appeal Tribunal is to correct errors of law where one is established and identified. I think care must be taken to avoid concluding that an experienced Industrial Tribunal by not expressly mentioning some point or breach has overlooked it, and care must be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the Industrial Tribunal, searching around with a fine tooth comb for some point of law" and of what was said by Lord Donaldson himself: "
What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as 'perverse'."[17]In any event, it was, it was submitted, clear from what was set out at pages 10 and 11 of the Tribunal's decision and extended reasons that they had taken account of the evidence upon which the claimant sought to rely.[18]Regarding the appropriate legal test, Mr Keys submitted that the present case was a classic one of ambiguous language being used. The Tribunal had not, correctly, found that the language used was unambiguous and the circumstances could be distinguished from those in the cases referred to on behalf of the claimant where clear language had been used. The Tribunal had, appropriately, applied an objective test.[19]Regarding the reference to the failure of the claimant to appeal against his dismissal, it was accepted by Mr Keys that, at the relevant time, the respondents had no appeals procedure. However, he indicated that evidence was led to the effect that Mr Harrison was not the most senior person in the business. The claimant could have approached Mr Harrison's father if concerned.[20]Mr Keys refuted any suggestion that there was any significance in the date on the P45.[21]Regarding the submission that the Tribunal should have detailed the inconsistencies in the claimant's evidence to which they were referring, under reference to the Piggott Brothers case, Mr Keys submitted that the Tribunal were not bound to do so. In particular, he founded on the Lord Donaldson's reference to what he had said in the case of UCATT v Brain [1981] IRLR 224:
"[The purpose of reasons] is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind is to misuse the purpose for which reasons are given."
[22]Overall, Mr Keys submitted that the conclusion reached by the Tribunal was a permissible option in circumstances where the burden was on the claimant to establish that he had been dismissed.[23]Regarding the final submission on behalf of the claimant, Mr Keys relied on the Tribunal's conclusion as being correct and submitted that the interpretation of section 6(3)(f) of the Disability Discrimination Act 1995 which had been advanced on behalf of the claimant was, simply, wrong. The Legal Principles:[24]There is no doubt that the onus was on the claimant to establish that, on the balance of probabilities, he had been dismissed. Equally, there is no doubt that for a challenge to the decision of an Employment Tribunal on the ground that it was perverse to be successful it requires to pass a high test which has been characterised over the years by using expressions such as "irrational", "offends reasons", "certainly wrong", "not a permissible option", "outrageous", "flies in the face of properly informed logic", or others which are similar. Decision[25]We are readily satisfied that the decision reached by the Employment Tribunal in this case was one which was open to them on the evidence and did not bear any of the abovementioned hallmarks of perversity. We were not persuaded that, properly understood, the decision and reasons of the Tribunal indicated that they had failed to take account of material evidence. On the contrary, not only do they summarise the conflicting evidence of the claimant and Mr Harrison, they set out, in full the terms of the letter typed by the claimant's mother and make specific reference to the written submissions presented on behalf of parties in which the evidence was referred to in detail. It is difficult to see how they could have done more by way of reassurance to the parties that they had considered all relevant evidence in the case. Contrary to what was suggested on behalf of the claimant, they did not make an unqualified finding that he was wholly credible and reliable. They found him to be "generally" credible and reliable (p.2) but then went on to note that there were inconsistencies in his evidence regarding matters which formed the core of the dispute and they also record "that the applicant was rather unsure of what had actually happened." It seems that the latter was a record by the Tribunal of their impression, something which was not accepted on behalf of the claimant. Ms Gribbon submitted that that was a record of the impression gained by the claimant's mother. We do not see how that would alter matters. It would still be the case that the Tribunal had before them either their own or a witnesses' impression of the claimant in fact being unsure rather than, as was submitted on his behalf, absolutely clear about what had happened.[26]In any event, the important point, which seemed to be lost on the claimant, was that Mr Harrison had given contrary evidence. Further, we consider that the terms of the letter were such as to entitle Tribunal to interpret it as they did and they were entitled to take it into account in their deliberations in the manner set out by them.[27]As regards the submissions made on behalf of the claimant under reference to the cases of B G Gale Ltd, Sothern and S overeign House Security Services , each of those cases concerned circumstances where unambiguous words of resignation had been used by employees to an employer and the employer had thereafter treated the employee as having resigned. The present was not a case where unambiguous words of resignation we used. Accordingly, as indicated in those authorities, the proper approach is to look at all the circumstances of the case which is what the Tribunal, in this case, did.[28]Dealing shortly with the submission regarding the lack of appeal procedures open to the claimant, even proceeding on the basis of that the tribunal erred in their narration of the facts here, we do not see that any such error was material.[29]Further, we do not consider that the Tribunal were obliged, in the circumstances of this case, to spell out in detail what were the inconsistencies in the claimant's evidence which they had in mind. It is not the nature of those inconsistencies which, ultimately, caused the Tribunal to decide as they did. Rather, the claimant's problem appears to have been the lack of cogent evidence to the effect that he had been dismissed in the course of the telephone call. Nor do we see that the fact that the date on the P45 was a week later than the date of the telephone call supports the claimant's case. It could, equally, be seen as supporting the respondent's case that he had given instructions for the P45 to be sent out because he thought that the claimant had resigned.[30]Finally, we were not persuaded that the Tribunal had erred in any respect in their approach to the respondents' obligations under the Disability Discrimination Act. It was clearly too early in the progress of the claimant's recovery from injury to go any further in their considerations as to how they might accommodate him at work than they had done. Further, we reject the claimant's submission that section 6(3)(f) of the Act, which provides as an example of a step which an employer may have to take in relation to a disabled person that he should consider "allowing him to be absent during working hours for rehabilitation, assessment or treatment;" would cover an employer requiring to give consideration to keeping in his employment an employee who cannot attend at work at all. The provision clearly envisages a situation where an employee is working but, due to disability, requires or would be assisted by having time off for rehabilitation, assessment or treatment.[31]We shall, accordingly, dismiss the appeal.