Appeal No

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Appeal No

     Appeal No. UKEAT/0392/08/MAA



     At the Tribunal

     On 26 November 2008








    Transcript of Proceedings


? Copyright 2009


    For the Appellants MR ALASTAIR HODGE

    (of Counsel)

    Instructed by:

    Countrywide Estate Agents (Group

    Legal Department

    Perry Way


    Essex CH8 3SX For the Respondent MR JAMES BOYD

    (of Counsel)

    Instructed by:

    Brabners Chaffe Street Solicitors

    1 Dale Street


    Merseyside L2 2ET



    Disability related discrimination

    Direct disability discrimination

    The Employment Tribunal confused the relevant tests for disability discrimination under s.3A of the Disability Discrimination Act 1995 as amended. Case remitted to the Employment Tribunal to consider the issue of disability discrimination in the light of the judgment and London Borough of Lewisham v Malcolm [2008] IRLR 700 (HL).



1. We are going to dismiss the appeal on grounds 1-3 and allow the appeal in respect of

    ground 4 and remit the case to the same Employment Tribunal for them to consider in the light

    of our judgment and the decision in London Borough of Lewisham v Malcolm [2008] IRLR

    700 (HL). I will give a judgment.


    2. This is an appeal from the decision of an Employment Tribunal sitting in Liverpool in

    November 2007, January and February 2008. The reserved judgment was sent to the parties

    and entered in the register on 10 March 2008. The Employment Tribunal decided a substantial

    number of issues which are set out at the beginning of the judgment.

3. It made a variation in respect of the identity of the parties and found (1) that the Claimant

    was unfairly dismissed by the First and Second Respondent, (2) that the Claimant’s claim of

    harassment was withdrawn and dismissed on withdrawal, (3) that the Claimant was unlawfully

    discriminated against on the grounds of his disability by the two Respondents, (4) that he was

    not victimised by the two Respondents and that claim was dismissed and (5) the claims of

    unpaid wages, holiday pay and other contractual benefits were dismissed.

4. Against certain of those findings and, in particular, in relation to disability discrimination,

    the two Respondents appealed to this Tribunal and I shall hereafter refer to them as the

    Appellants. The Appellants are being represented by Mr Alastair Hodge of Counsel and the

    Respondent, Mr Ronald Rice, by Mr James Boyd of Counsel. We are grateful to both of them

    for their succinct oral and written submissions.


    - 1 -

The Material Facts

    5. These are set out in the Employment Tribunal judgment paragraphs 12-79: EAT bundle pages 7-18. It is not necessary for the purposes of this appeal to go into the factual matrix in any great detail.

    6. Suffice it to say that the Claimant was employed by the two Respondents who run an estate agency and financial service business in North Wales, Wirral and Cheshire. The Respondent was originally employed as a branch manager in January 1980 and became a partner in 1982. He was, and remains, a chartered surveyor and practised as a general estate agent. Following a transfer of ownership he became an area sales director in 1990 and, subsequently, a regional sales director covering Cheshire and West Midlands. He was described by the Tribunal as Mr Philip Turner’s right-hand man. He was responsible, as a

    regional director, for a number of offices within his region.

    7. Unfortunately, in 2001, the Claimant was admitted to hospital suffering from a heart attack for which he was subsequently prescribed medication. He returned to work. In August 2004 he suffered a second heart attack which again required hospitalisation and a further prescription of drugs. He was required to take those drugs for the rest of his natural life.

    8. He also suffered from mechanical back pain and sciatica in January 2006 at the time of his dismissal. There was an agreed medical report and the Tribunal found that the Respondent was disabled by virtue of his heart condition but not his back condition. There were quite clearly potential limitations on what work the Respondent could do on his return to work.


    - 2 -

9. Simultaneously, there was a reorganisation within the Appellants’ regions and the result

    was a redundancy exercise whereby there would only be three regional directors instead of the existing five. One, in fact, left of his own accord meaning that there had to be a selection of three from a pool of four.

    10. The Tribunal set out in considerable detail, for which we are grateful, the redundancy process and made a number of criticisms of it. The result of the redundancy process was that the Respondent was made redundant. He subsequently brought a claim for unfair dismissal and discrimination and victimisation.

The Employment Tribunal Judgment

    11. The judgment follows a conventional form. In structure it first sets out the decisions it made: EAT bundle pages 1-2. It then sets out a preamble which is in effect the history of the claim: paragraphs 1-10 EAT bundle pages 2-3. It sets out the issues at paragraph 11 which then (through an error of numbering) appear as 9.1-9.23): EAT bundle pages 3-6. It sets out the facts at paragraphs 12-79: EAT bundle pages 7-18. It then turns to setting out the law at paragraphs 80-98: EAT bundle pages 18-21. Finally it reaches its conclusions at paragraphs 99-27: EAT bundle pages 21-28.

    12. Having heard submissions from both Counsel who were present at the hearing, it seems to us that what went wrong in this case was this. There was a discussion, as is inevitable and desirable at the beginning of the hearing, as to what the issues were between the parties and what the Tribunal had to decide. The hearing concluded on 28 November and the Tribunal met again in chambers on 9 January and 8 February.


    - 3 -

13. As I have indicated, the Tribunal listed in paragraph 11 (as paragraphs 9.1 - 9.23) the

    issues it actually had to decide. They went beyond the issues which had been canvassed before

    it by Counsel. Indeed, although there are 23 paragraphs each of those paragraphs is subdivided

    into a number of sub-issues. We think that the Tribunal over-complicated the issues it had to

    decide in this case.

The Amended Notice of Appeal

    14. This appears in the EAT bundle pages 30-34. It has been supplemented by Mr Hodge’s

    admirably concise oral submissions as well as his skeleton argument. We take the grounds of

    appeal in turn. Ground 1 is contained in paragraph 6.1 of the amended Notice of Appeal. It

    says this:

    “It [The Tribunal] substituted its own judgment that it was procedurally unfair for the

    Appellants not to meet (or offer to meet) the Respondent at his home on 30th January 2006 as

    part of the redundancy consultation process rather than ask whether this was within the

    bound of reasonable responses of a reasonable employer (Reasons, paragraph 100).”

15. We can take grounds 2 and 3 together with ground 1. Ground 2 is contained in

    paragraph 6.2 of the amended Notice of Appeal. It says this:

    “It [The Tribunal] substituted its own judgment in relation to the Appellants formulation of

    the selection criteria rather than ask whether the said formulation was within the band of

    reasonable responses of a reasonable employer (Reasons, paragraph 102).”

16. Ground 3 is contained in paragraph 6.3 of the amended Notice of Appeal. It says this:

    “It [The Tribunal] substituted its own judgment in relation to the importance of the

    Respondent‟s RICS membership and REAPIT knowledge rather than ask whether the

    Appellants approach to those issues was within the bound of reasonable responses of a

    reasonable employer (Reasons, paragraph 106).”

17. Before turning to the Employment Tribunal’s reasoning in those paragraphs, it is useful to

    remind ourselves of the law. There is no dispute about the principles set out in Mr Hodge’s

    skeleton argument. The decision in Iceland Frozen Food v Jones [1982] IRLR 439 wasUKEAT/0392/08/MAA

    - 4 -

    approved by the Court of Appeal in Foley v Post Office [2000] IRLR 827:

    (a) the starting point should always be the words of section 98(4) themselves;

    (b) in applying the section an employment tribunal must consider the reasonableness of the

    employer‟s conduct, not simply whether they (the members of the employment tribunal)

    consider the dismissal to be fair;

    (c) in judging the reasonableness of the employer‟s conduct an employment tribunal must not

    substitute its own decision as to what was the right course to adopt for that of the employer;”

In other words, the case law prohibits the Employment Tribunal substituting its view

    for that of the employer.

18. Taking each of those in turn we turn to ground 1 and paragraph 100 of the judgment. The

    Tribunal say this:

    “However, the Tribunal was concerned that the respondent had not considered meeting the

    claimant in his home to discuss the matters raised in the 30 January meeting, given the fact

    that it was expressed to be a very important meeting which would have enabled the claimant

    to ask questions face-to-face about the redundancy process rather than via email. This failure

    on the part of the respondent did not amount to a breach of the statutory procedure but does

    add to the general unfairness by virtue of section 98(4) of the 1996 Act of this redundancy,

    which was both procedurally and substantively unfairly carried out for the reasons set out


19. In our judgment this is a throwaway remark by the Employment Tribunal. It is not

    substituting its view for that of the employer. It specifically finds that the failure, as they term it,

    did not amount to a breach of the statutory procedure but did add to the general unfairness by

    virtue of section 98(4) of the 1996 Act. However, the paragraph goes on to say that the dismissal,

    by reason of redundancy, was both procedurally and substantively unfairly carried out for the

    reasons set out below. In our judgment that does not incorporate a finding by the Tribunal that a

    failure to consider meeting the Claimant at his home was outwith the band of reasonable

    responses of a reasonable employer.


    - 5 -

20. The actual reasons found for finding that there was an unfair dismissal under section 98(4)

    of the 1996 Act are set out in the paragraphs which follow paragraph 100 and the point is not

    referred to again in those reasons. Paragraph 102 says this:

    “With reference to issue number 9.3, namely did Mr Turner predict a redundancy situation in

    April 2005 between regional managers in January 2006, the Tribunal decided that he had and

    that both the selection criteria and interview scores were designed to ensure the claimants

    selection for redundancy. The respondent had not established objectively fair selection

    criteria, and had made very little amendments when a number were suggested by the claimant,

    who clearly did not agree with them all. The respondent did not properly take into account

    the claimant‟s absences and the impact of his disability on the running of some offices,

    especially Chester.”

21. Ground 3 takes issue with paragraph 106. That says this:

    “The Guide warned against failing to follow previous historic matrixes without good reason.

    The Tribunal concluded that the matrix used for selecting the claimant was not wholly based

    on objective and verifiable grounds but also included the personal opinion of the assessors,

    which was wholly subjective. There was no adverse effect to the claimant when the

    respondent failed to take into account the entire continuity of his employment because the

    claimant, on his own admission during the appeal process, agreed that the respondent should

    follow its own guidelines which provided a cut off point of 10 years or more to the maximum

    mark. As the claimant and all his colleagues in the pool for selection possessed in excess of

    ten years of continuity of service then they were entitled to be equally scored on this, which

    they were.”

22. That, of course, is a point in favour of the Appellant. Paragraph 106 goes on:

    “However, the respondent‟s failure to take into account the claimant‟s qualification as a

    chartered surveyor and his expertise in the REAPIT computer system was a procedural and

    substantive failure. Mr Scarff confirmed that the claimant‟s RICS qualifications were of

    marginal benefit and that his expertise in REAPIT, was above average of his colleagues and

    therefore this would have been of value”.”

23. Mr Hodge, for the Appellant, submits that paragraphs 102 and 106 show that the

    Employment Tribunal was substituting its views for that of the Appellant as to whether or not the

    matters complained of were outside the bound of reasonable responses of a reasonable employer.

24. We agree with Mr Boyd that this criticism misses the critical point. It was a central plank

    of the Respondent’s case that the whole redundancy exercise was deliberately geared to engineering his dismissal. The Employment Tribunal heard the witnesses, including Mr Turner,


    - 6 -

who was the person against whom the Respondent had pointed the finger as the key player in his

    engineered dismissal.

25. The Tribunal in other parts of its judgment did refer to the relevant test in law. At

    paragraph 83 the Tribunal said this:

    “The question for the Tribunal is the reasonableness of the decision to dismiss in the

    circumstances of the case, having regard to equity and the substantial merits of the case. The

    Tribunal will not substitute its own view for that of the respondent. In order for the dismissal

    to be fair, all that is required is that it falls within the band of reasonable responses open to

    employer. It is necessary to apply the objective standards of the reasonable employer - the

    band of reasonable responses test - to all aspects of the question of whether the employee

    had been fairly dismissed.”

26. It goes on to refer, in paragraph 84, to the well-known decision of William & Ors v

    Compair Maxam Ltd [1982] IRLR 83 and refers to the reasonable employer in that paragraph on at least two further occasions. It seems to us that paragraphs 102 and 106 are not

    substitutions by the Tribunal for its views for those of the employer.

27. To hold otherwise would be to require employment tribunals to recite as a mantra, in every

    relevant paragraph, the phraseology of band of reasonable responses. We do not think that

    employment tribunals, particularly in lengthy judgments, should be required to do that. We, find

    no substance in grounds 1, 2 and 3 of the Amended Notice of Appeal.

28. We turn to ground 4. This is contained in paragraph 6.4 of the Amended Notice of Appeal

    which says this:

    “It [The Tribunal] failed to apply the proper test for direct disability discrimination in

    section 3A(5) of the Disability Discrimination Act 1995, which led to the perverse conclusion

    that the Appellant had directly discriminated against the Respondent on the grounds of his



    - 7 -

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