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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Williams v. Owens Corning Fibreglass (Gb) Ltd [2001] UKEAT 1039_00_1312 (13 December 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1039_00_1312.html Cite as: [2001] UKEAT 1039__1312, [2001] UKEAT 1039_00_1312

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APPEARANCES

 

For the Appellant	MR T WILLIAMS (Solicitor) Messrs Tudor Williams & Co Solicitors 27 Chester Street Wrexham Clwyd LL13 8BG
For the Respondent	MR N GRUNDY (Of Counsel) Messrs Eversheds Solicitors London Scottish House 24 Mount Street Manchester M2 3DB


 


JUDGE D PUGSLEY

1. This is a case in which we would all wish to begin in expressing our appreciation of the very real skill and experience that has been demonstrated by the advocates in this case. It is valuable to have the benefit of skeleton arguments we have had in this case.
2. The case concerns an applicant, Mr Williams, who was born on 7^th May 1949. He became 50 in May 1999. It was common ground before the Tribunal he was a person with a disability within the meaning of the Act of 1995. He had been a senior operator in charge of a group of men from the mid-1990s.
3. In June 1998 a restructuring package took place which required the Applicant to change his job description and required the acquisition of two basic skills and one technical skill. He then worked in the silver handling department and opted to transfer to the rovings department to gain his second skill. That was the only other department in which he considered he could work with any degree of safety owing to his disability.
4. The Respondent's physiotherapist determined that the Applicant was not suited for work in the rovings department because of the need for heavy lifting and turning. That was passed to the Respondent's personnel manager and he was not offered any alternative.
5. In 1998, in the latter part of that year, the Respondent company engaged upon a redundancy programme. In that exercise the Applicant scored 51 points. The Applicant's failure to acquire a second basic skill deprived him of 4 points. He scored zero out of 20 for team working. The Tribunal set out various shortcomings, as they saw it, in the procedure adopted by the Respondent.
6. When the Applicant had been unable to undertake training in the rovings department, he was sent off to see Dr Jones, the medical adviser who he saw on 10^th November. The object of that was that Dr Jones should give a better understanding of his restriction and his ability to train in the rovings department. He was told that he would be contacted again when Dr Jones's report had been received. In fact he was never contacted in connection with Dr Jones's report or his disability at all.
7. The Tribunal made it clear, in one part of their decision, that Dr Jones's report had only emerged one week before the Applicant had left in May 1999 (it was dated 23^rd May) and they decided it could not be relevant to the Respondent's decision to accept the Applicant as a volunteer way back on 5^th February. The decision that led ultimately to the Applicant's departure from the company had been taken long before Dr Jones committed his views of the examination he held in November to paper in a report.
8. The Applicant was seen by his manager in a meeting on 27^th January 1999 when he was called in, with his union representative, and told he was at high risk of being made redundant. He was told he had scored zero for teamwork but was told that in order to find out his other scores he would have to appeal and that the points could only be adjusted by appeal. It was the Respondent's declared policy that those who volunteered for redundancy would be told they would be permitted to stay on longer whereas those who were made compulsorily redundant would leave at about the end of 1999. Because of the Applicant's age he regarded it as a high priority that he should remain in employment until his 50^th birthday so that he could be eligible for a pension. The deadline for applications for voluntary redundancy was 5^th February. The Applicant was told by a Mr Huntington that if he volunteered he would endeavour to keep him in employment until he was 50 years of age. The Applicant reluctantly acceded to that course and volunteered.
9. The Tribunal first came to one view which was unanimous. They said at paragraph 8.

"The scoring system employed by the Respondent was an arrangement which placed the disabled Applicant at a substantial disadvantage in comparison with people who were not disabled. The Respondent therefore came under the duty to take such steps as were reasonable for it to take in order to prevent the arrangement from having that effect. There was no evidence of any compelling reason, or any reason at all, why the scoring system had to be arranged as it was. [It was noted that in the resin plant a slightly modified system was applied]. There was no suggestion of any reason other than the Applicant's disability which prevented him from acquiring a second skill, and the four points would have gone with it. There was no evidence that the Respondent gave any consideration to modifying its scoring system at all so as to prevent the Applicant from suffering the substantial disadvantage of the loss of four marks. Further, there was no evidence that the Respondent's failure to consider making any adjustments, or its failure to make any adjustments was justified."

On this basis the Tribunal were unanimous that the Applicant was discriminated against under Section 5(2) of the Act. There is no appeal from that decision.

10. Unhappily for us, and for the parties, that was the only point of which the Tribunal were unanimous. Paragraph 9 reads as follows

"So far as the dismissal itself is concerned both members were of the view that the Applicant's claim under Section 5(1) should fail because his dismissal, which was the action of less favourable treatment complained of, arose because he decided to volunteer for redundancy and therefore was not treatment of him by the Respondent. The Chairman takes a different view, namely that the dismissal of the Applicant by reason of redundancy did amount to less favourable treatment for a reason which was related to his disability, because the reason the Applicant volunteered was, to a significant degree, because he was placed in the high risk category and, further, the reason that he was placed in the high risk category was because of the scoring system adopted by the Respondent which placed him at a substantial disadvantage and which the Tribunal unanimously found to have been discriminatory."

11. At that paragraph Mr Tudor Williams, who has considerable experience in these matters, has trained his forensic artillery on the conclusion of the majority. We trust that it will not be considered that we are in any way parodying, by shortening Mr Williams' argument, but what he effectively says is this. That following the case of Clarke v TDG Limited t/a Novacold [1999] IRLR 318 CA that we have to look at two questions; was the Applicant dismissed for a reason which relates to his disability? If so, did the Respondents treat him less favourably than they would treat others to whom that reason would not apply? Mr Williams makes the point that the Appellant's decision to volunteer for redundancy is in direct opposition to the minority view that the Appellant's dismissal by reason of redundancy amounted to less favourable treatment.
12. Quite simply we do not consider that the majority view of the lay members can be upheld as a matter of law. We do not think that one can isolate the fact that he volunteered for redundancy, in any shape or form, from the fact that it was the Respondent's actions that placed him in the position where that was an option for him. The act of volunteering did not interrupt the sequence of events. Although not cited to us, there is the need for Tribunals to consider, in the words of Sir Donaldson MR in Martin v Glynwood Distribution Ltd [1983] ICR 511 at 519

"Whatever the respective actions of the employers and the time when the contract of employment was terminated, at the end of the day the question always remains the same. Who really terminated the contract of employment?"

13. This Tribunal is totally satisfied that, on any view of the matter, to say as the majority members did in paragraph 9 that because he decided to volunteer for redundancy that therefore there was not a treatment of him by the Respondent is a misdirection in law because it totally ignores the reality on the facts of this case that his employers had effectively terminated the contract, first by the decision that there should be a redundancy programme with a discriminatory approach and secondly by accepting his application for voluntary redundancy. Voluntary redundancy can be, and still is, a dismissal and it is common experience that those who actually volunteer are not exceptions to this position.
14. However, although we think the majority decision was a misdirection of law, we have to say there are real problems here and we hope we can be forgiven if we take them quickly. The fact, as the Tribunal found, that the Applicant was discriminated against because of the discriminatory nature of the scoring system is not the end of the issue as Mr Grundy has reminded us. Mr Grundy's argument is that even if he got the 4 points, he was substantially below attaining the 62 points which would have made him really safe as it was 58 points and below in which employees were at high risk.
15. The truth of the matter is that neither the Chairman, who was in the minority, nor the majority analysed the consequences of their view. It would have been perfectly open, if they had so wished, for the majority to have set out those reasons by saying that even if, as they accept, he was discriminated against by the selection procedure, nevertheless, excluding all the discriminating features there are, he still would have been at high risk, quite irrespective of the consequences of his disability and the discrimination consequent upon that, and, therefore, they were not satisfied that his dismissal was related to his disability.
16. Equally, if we may say so, the Chairman just assumes that because the Applicant had received less favourable treatment for a reason which related to his disability. He does not deal, if we may say so, with the point that he would still have been in the high risk region even if he had received a further 4 points. It is true, as one of the members of this Tribunal pointed out to Mr Grundy, that not everyone who was below 58 went and that at least one person who scored 55 points was not made redundant.
17. The reality is that this issue was not addressed and dealt with either by the majority or by the Chairman and on this aspect of the case we can see absolutely no basis for doing any other than allowing the Appellant's appeal and directing that there should be a re-hearing before a different Tribunal who will have to consider the question of whether or not, assuming that there is discrimination in the scoring process , his disability was causative of him being in the high risk category.
18. Mr Grundy we hope will bear with us when we say he has made some very interesting points in his ground of appeal and cross appeal. He has complained that the Tribunal have imported a burden of proof into the consideration of Section 98(4) and he has also criticised the Tribunal for appearing to ignore the guidance in the case of Eaton Limited v King [1995] IRLR 75 and British Aerospace PLC v Green [1995] IRLR 437, which warns Tribunals against the practice of themselves, as it were, trying to revisit and reassess the evidence as to the capability of a particular employee.
19. Further Mr Grundy complains that the correct test in law which ought to have been applied by the Tribunal was, was it open to a reasonable employer to have adopted and applied the selection criteria in which it did and not substitute its own views for that of the employer. He says that in passages from the judgement where the Tribunal seemed to be doing that in their comments on the scoring sheets where they say that

" . . .because he [the Applicant] had been in charge of a team for a number of years it was difficult for them to see how a score of zero for teamwork could be justified.

He cites N.C Watling v Richardson ]1978] ICR 1049. He criticises the use of the word satisfy and takes us back to the well known case of Boys and Girls Welfare Society v Macdonald [1997] ICR 693.

20. We note all those points and we are far from saying that those points, in themselves, would constitute a reason for us taking a decision to allow this appeal because, if we may say so, there is an element of combing through the decision to find a point of law, eloquent and ably though that has been done. But we do not found our decision to allow the appeal on that basis.
21. Quite simply there is an overwhelming reason, which Mr Grundy kept to the last of his submissions, and that is this. There is a fundamental dichotomy as we find it to be, which, in our view, must be an error of law. By a majority of two lay members it was decided that the Applicant's claim under Section 5(1) should fail because his dismissal which was the act of less favourable treatment complained of arose because he decided to volunteer for redundancy and that was not treatment of him by the Respondent.
22. By a majority of two, the Chairman and one of the members, there was decision that the dismissal was an unfair dismissal and it is noted

"It is difficult to see how a dismissal which resulted from the scoring system which was found to be discriminatory could be held to be a fair dismissal."

23. Mr Williams has not taken the matter up and we think that is a considerable reflection of his realism. At the end of the day, one member is saying in one breath that the discrimination shown to the Applicant was not a cause of his dismissal for the purpose of rejecting the claim under Section 5(1) but equally, in another breath, saying that it is difficult to see how a dismissal, which resulted from the scoring system which was found to be discriminatory, could be held to be a fair dismissal.
24. At the end of the day, as we said right at the start, what a Tribunal has to do is ask who really terminated the contract? However distasteful discrimination may be, at the end of the day there has to be a finding whether or not that caused his dismissal for the purposes of Section 5(1) or whether it was relevant for the issue of unfair dismissal.
25. We hope that it is not thought that we have slided over the various points raised by Mr Grundy but as he has made a point which, in our view, is unanswerable, we have not dealt, perhaps with as great a depth as we would otherwise have done, with the various arguments he has raised. We accept that they are points of unease but as we say we allow this appeal on the basis we have set out.
26. We do note that there seems to be a slight confusion in the decision as to the medical report. The majority of the Tribunal said it was unfair to dismiss by failing to consider the medical report but at the earlier finding at paragraph 3 the Tribunal said that the medical report had no part in the decision to dismiss because it had been received after the decision had been taken. We suspect this is a matter of drafting and what the majority really were saying was that it was unfair to dismiss without going back to the doctor who had seen him way back in November but that is not actually what the decision says.
27. We have considered the submissions both made by Mr Grundy but we have come to the view that it is quite impossible for us, due to the paucity of findings of fact to substitute our own view on any issue.
28. We have come to the view that the issue of unfair dismissal and the issue of discrimination under Section 5(1) are matters which should be re-considered by a different Tribunal. Both parties have agreed to that, bearing in mind the finding of discrimination under Section 5(2) still applies. Therefore the appeal and the cross appeal are both allowed and the case is remitted to be heard by a different Tribunal.