COPAL CASTINGS LIMITED v MR D HINTON [2005] UKEAT 0903_04_0903
EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0903_04_0903Case No Appeal No. UKEAT/0903/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
COPAL CASTINGS LIMITEDAPPELLANTMR D HINTONRESPONDENT
Before
His Honour Judge J BurkeDate 9 March 2005
[1]APPEARANCES For the Appellant MR OLIVER SEGAL (of Counsel) Instructed by: Howes Percival Solicitors Oxford House Cliftonville Northampton NN1 5PN For the Respondent MR BRUCE CARR (of Counsel) Instructed by: Rowley Ashworth Solicitors No. 1 Snow Hill Plaza St Chad's Queensway Birmingham B4 6JG Wimbledon SUMMARY Unfair Dismissal and Disability Discrimination Employee's claims of(1) disability discrimination,(2) failure to make adjustments, and(3) constructive dismissal succeeded.[2]Employers' appeal against (1) and (3) dismissed; no misdirection; no perversity.[3]As to (2) both parties believed that the employee had diabetes type 1 – in which case he would have been a disabled person to whom s.6(2) duty (old law) applied. However these were both mistaken; he had diabetes type 2 – in which case he was not disabled. This gave rise to a new point; should the issue he decided on the basis of the parties' joint belief or on the basis of the true facts? Held that s.1(2) of the Act defines a disabled person as a person "who has a disability" and not as one "who has or is believed to have a disability": therefore the s.6(2) duty did not arise; this aspect of the appeal succeeded. HIS HONOUR JUDGE J BURKE QC The History and Issues "92. A ground of appeal based on perversity should always be fully particularised, so that the respondent can be fully prepared to meet it and in order to deter attempts to pursue hopeless and impermissible appeals on factual points… 93. Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with 'great care'…" He went on to point out that there have been frequent attempts in the tribunal to present appeals on issues of fact rather than on questions of law and that that should be resisted. "6 Duty of employer to make adjustments(1) Where - (a) any arrangements made by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect." In other words, the duty to make adjustments would have arisen. But Mr Carr concedes that Mr Hinton did not in fact have that condition; he had type 2 diabetes only, although the parties did not know that was the case; and, with admirable frankness, Mr Carr accepts that if, as was the true case, Mr Hinton only had type 2 diabetes, then the Section 6 duties would not apply because he would not have been a disabled person who was "at a substantial disadvantage in comparison with persons who are not disabled." "1 (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons." Those words focus on the grounds and the behaviour of the person who is alleged to be the discriminator and point in a different direction from that in which we have to look when considering Section 6 or Section 1 of the Disability Discrimination Act. Mr Carr accepts that if he is to persuade us on this part of his appeal, he must persuade us that Section 1(2) of the 1995 Act, which says:
"1. Meaning of "disability" and disabled person" (2) In this Act "disabled person" means a person who has a disability." should be interpreted as meaning "
In this Act 'disabled person' means a person who has a disability or is believed to have a disability". There is no authority for such an extension to the words of the statute; and we do not believe it to be right to read the words of the statute by adding important extra words which could have all sorts of consequences which the draughtsmen of the statute or, perhaps to be more correct, Parliament would not seem to have intended; and we decline the invitation so carefully dangled in front of us by Mr Carr. Constructive Dismissal " Further, we note that an employer may be held to be in repudiatory breach of contract not only if he breaks an express term but also if he infringes an implied term and therefore an employer will be held guilty of a breach which entitles an employee to resign and claim that he has been constructively dismissed, if the employer behaves in such a way which destroys the relationship of trust and confidence with his employee." Mr Segal submits that there is an important difference between something which destroys the relationship of trust and confidence in an employee and an act which is an act of the employer such as is likely or calculated to achieve that effect. The implied term, well recognised of course in the case of Malik v BCCI [1997] IRLR 469 and earlier cases, is that the employer shall not act in a way calculated or likely seriously to damage the relationship of trust and confidence between employer and employee. That requires an objective assessment of the nature of what the employer has done and it is insufficient to establish constructive dismissal, that what the employer has done is seen by the employee to have had the effect of destroying the relationship of trust and confidence. Yet, says Mr Segal, the words of the Tribunal in paragraph 12 indicate that they were directing themselves to look only at the subjective attitude of the employee and not objectively at the nature of the conduct of the employer. That, says Mr Segal, is supported by and strengthened by what they say in their conclusions as to constructive dismissal at the very end of their decision, at paragraph 27, which we have already cited in full. Conclusion