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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lowwhite v. Smithies [1999] UKEAT 216_99_1105 (11 May 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/216_99_1105.html Cite as: [1999] UKEAT 216_99_1105

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APPEARANCES

 

For the Appellant	MR T LINDEN (OF COUNSEL) (Instructed by) Eversheds London Scottish House 24 Mount Street Manchester M2 3DB


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an Appeal which Lowwhite Limited (formally known as Whitley Willows Limited) wish to make against the unanimous decision of an Employment Tribunal that Mrs Smithies had been discriminated against by them on grounds of her disability in relation to the transfer of her employment to premises in Shelley. Secondly, that she had been unfairly dismissed. The points of law in this case (there are 4 of them) can be identified thus:

i. The first point that is made is that the question which the Tribunal may not have considered or may not have considered properly is whether the disadvantage which Mrs Smithies was going to experience as a result of the transfer to a different location was a disadvantage due to her disability or whether it was a disadvantage which she would have experienced regardless of her disability.

ii. The second point of law is whether the Tribunal have approached the question of reasonable adjustment in a way which is sound. The issue more precisely, is whether the adjustment suggested by the Tribunal would have in fact, prevented the effect of the disadvantage in question within the meaning of Section 6(4)(a) of the Disability Discrimination Action.

iii. The third point of law which seems to us to be arguable is the limitation point. The Application was presented 15 months out of time. She had lawyers acting for her throughout and those lawyers had specifically invited the Employers, the Appellants, to agree to an extension of time for the presentation of her complaint and they expressly refused to do so. In those circumstances, Mr Linden would wish to argue that the discretion exercise by the Tribunal to extend time under the just and equitable provision was wrong.

iv. The fourth point is that in relation to the unfair dismissal finding where the argument is that the Employment Tribunal have substituted their own judgment for that of the Employers in the sense that they have not looked at the range of reasonable responses test, or alternatively, they have arrived at a conclusion which is manifestly perverse.

1. Those points we consider to be arguable. We wish to make it perfectly plain that in so saying, we are not indicating how the Employment Appeal Tribunal will adjudicate on the Appeal when it comes back for a Full Hearing. This was an ex-parte procedure and the Respondent to the Appeal, Mrs Smithies should not seek to read into this judgment more than has been intended. These points are arguable: whether they are right or not is to be determined upon another occasion.
2. I now turn to the question of directions. This is a case where neither party has presented a PHD form. That is regrettable. I take the view that this is a category B case and that it will take 1 day to argue. We are doubtful whether notes of evidence of a limited form as sort by the Appellants will, in fact, be of assistance to the Employment Appeal Tribunal but since we do not know what the attitude of Mrs Smithies is to that matter, we cannot be sure that this is a case where notes of evidence are not required. It should be made plain that we think it unlikely that notes of evidence will be of assistance to the Employment Appeal Tribunal but we will keep an open mind having regard to any representations the Respondent might seek to make.