Oliver v The Ultimate Solution Partnership Ltd (Disability Discrimination) [2011] UKEAT 0142_11_1608

EAT
Oliver v The Ultimate Solution Partnership Ltd (Disability Discrimination)
[2011] UKEAT 0142_11_1608 · 2011-08-16
[1]When the Disability Discrimination Act came to fruition there were widespread concerns that those who were disabled should receive redress that the earlier Discrimination Act had woefully failed to provide. The old system of quotas for disabled people was both insulting and ineffective, but no one, I think, had any illusion about the difficulty of defining disability. But interesting though these debates are, we are sending this case back of our own volition, having heard argument from both Mr Otchie, who is from the Free Representation Unit, and Ms Watson, who is from Devereux Chambers, because quite simply this decision cannot stand. It offends our sense of justice and fairness, and if that appears self‑important and pompous, we apologise. We think that there is a fundamental requirement that all those who appear before a court know why they have won and why they have lost. If authority for that trite proposition is necessary, it can be found in the Judgment of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250 . Discussion[2]The problem with this case is this: what was the reason for the dismissal of Mrs Oliver? Perhaps we can do very little, or nothing at all, to improve the marvellously succinct way in which Bingham LJ put it in Malcolm . The task of the court is to ascertain the real reason for the treatment; the reason that operates on the mind of the alleged discriminator. This may not be the reason given and it may not be the only reason, but the test is the objective one. Now, in this case when the Respondents received the originating application, their response was in these terms in a document drafted by counsel (Devereux Chambers, experienced in employment law):
“15. The decision to terminate the Claimant’s employment was made in early September 2007 on the basis of her dishonesty and breach of trust and confidence. (1) The Claimant admitted on the telephone when speaking to Mark Banini that she had been working for her husband whilst she was off on sick leave and was indeed building his website when she spoke to Mark Banini. (2) There were also occasions when the office manager rang the house to find out the current position in relation to sick notes which had not been supplied that one of the children answered and was told that ‘Mummy had gone to work on the train.’ (3) There were further occasions when Mark Banini rang to speak to her where her husband answered and said that she was not in when she clearly was as she could be heard speaking in the background. […] (4) Whilst off sick, she was actively seeking a new job. The Curriculum Vitae of the Claimant was found by a researcher acting for the Respondent who was checking availability of management consultants since the Respondent was seeking to recruit more management consultants. The researcher asked the Claimant why she was looking to move after only 8 months with the Respondent and she was told the four hour travelling a day was too much for her. She was asked about her availability for an interview and replied that she did occasionally work from home and if she had enough notice she could ‘manipulate’ things so she could attend. She was also asked whether she had any medical issues and she confirmed she had none at all. (5) If the Claimant was truthful with the researcher then she had no reason being off work on sick leave.”
[3]This Tribunal decision was promulgated some six months after the hearing. The Judgment was sent to the parties on 9 February and, Reasons thereafter having been sought, it was on 13 July this was promulgated. This case had lasted 1, 2, 3, 11 and 23 December. This Tribunal would never criticise Employment Tribunals because the decisions are brief, but really something has gone wrong here. There is no finding at all about the contention made that the reason for dismissal was dishonesty and breach of the implied term of trust and confidence. It is, as Sir Alastair Graham pointed out in argument, mentioned on a sort of sliver basis from time to time, but as has been pointed out by Mr Lyons, the other industrial member, you do not leave an allegation like this lying on the table; you decide it.[4]Neither the Respondent nor the Claimant have had a fair trial. The Respondent has not heard its reasons adjudicated upon properly; the Claimant has had this slur put across her at a time when on any view of the matter she was vulnerable, and it has not been resolved one way or the other. You cannot begin to assess what the reason was if you do not examine the evidence that was put before you, and Ms Watson tells us that the evidence was put before the ET. It is just not in the decision as to what findings the Employment Tribunal made. There are real issues, and they are ones that the parties have well prepared in their skeleton arguments, of the extent of those in Malcolm , which was a housing case. What was the reason for the dismissal? To what extent can you impute knowledge of disability from surrounding circumstances? Conclusion[5]This is a case in which I ought to say we have sympathy for both parties. It is free to the parties to negotiate issues and discuss things. We do not think it is free to us to allow this case to be dealt with on a wholly unrealistic basis, which has ignored the principal contention of the Respondent in their ET3. Ms Watson may well have put her finger on it - if it was not disability, it did not really matter what it was, because it was within 12 months of employment, and therefore the Tribunal may not have felt it necessary to address this issue. We think it is vital to address the issue of what the reason was when you are deciding whether the reason was disability. We therefore allow the appeal and send it to a differently constituted Tribunal. With the best will in the world, in view of what has gone wrong none of us think that the parties could live with the same Tribunal adjudicating upon them. Having said that, I am sure we all agree that if they can find a way of resolving the issue without litigation, so much the better.