Appeal No.	EAT/1192/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 January 2001
Judgment delivered on 23 April 2001

Before
THE HONOURABLE MR JUSTICE CHARLES
LORD GLADWIN OF CLEE CBE JP
MISS A MACKIE OBE

MRS C SOLLOWAY	APPELLANT

HPC ENGINEERING PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ROBIN WHITE
(of Counsel)
Instructed By:
Messrs Hamnett Osborne Tisshaw
Solicitors
48-52 South Road
Haywards Heath
West Sussex RH16 4LA	
For the Respondent	MR DAVID GRIFFITH-JONES
(One of Her Majesty’s Counsel)
Messrs Wilsons
Solicitors
Steynings House
Chapel Place
Fisherton Street
Salisbury
Wiltshire SP2 7RJ	

MR JUSTICE CHARLES:

Introduction

1	This is an appeal against a decision of an Employment Tribunal sitting at Brighton, the Extended Reasons for which were sent to the parties on 21 September 1999.

2	The Applicant before the Employment Tribunal and the Appellant before us is Mrs Solloway.  The Respondent is HPC Engineering Plc.  

3	The decision of the Employment Tribunal was expressed in the following terms at the beginning of their Extended Reasons:

“1	The Applicant was not discriminated against, contrary to the Disability Discrimination Act 1995.
2	The Respondent concedes that the Applicant was unfairly dismissed.
3	The Tribunal finds an 80% probability that the Applicant would have been dismissed in any event had a fair procedure been followed.
4	By consent it is ordered that the Respondent pay to the Applicant £1,873.00
5	The recoupment regulations do not apply.”

4	The appeal is against the first of those findings, namely the dismissal of the Applicant’s complaint under the Disability Discrimination Act 1995 (the DDA).  

The issues raised on this appeal

5	As set out in the skeleton argument of Counsel for the Appellant the appeal has two main aspects.  They are set out in paragraph 2 of his skeleton argument which we quote:

“The appeal has two aspects:

(i)	Failure to have regard to paragraph 4.62 of the “Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have a disability” which deals directly with the circumstances of an officer of an employer being made aware in confidence of an employee’s disability.

(ii)	Criticisms of certain findings of fact by the Tribunal in the light of the evidence received by them.”

The challenge to the findings of fact 

6	We shall deal with this first.  In our judgment Counsel for the Appellant was correct not to pursue this challenge with any vigour before us orally.

7	Although the Notice of Appeal goes wider the challenge under this heading before us was limited to two grounds. 

8	The first related to the finding in paragraph 13 of the Extended Reasons that the Respondent’s Personnel Manager:

“took no direct part in the selection process”.

It was said that this was contrary to her written statement.  The purpose of this challenge was to enable the Appellant to assert that the findings of the Employment Tribunal (i) that the persons who selected the Applicant for redundancy were unaware of the fact that she suffered from multiple sclerosis, and (ii) that her disability was not taken into account in deciding to make her redundant as the relevant managers did not know that she suffered from multiple sclerosis, were flawed.  

9	In our judgment the finding that the Personnel Manager “took no direct part in the selection process” (emphasis added) was not at odds with her statement and having regard to that statement and the evidence they heard the Employment Tribunal were entitled to reach the findings that they did as to the participation of the Personnel Manager in the selection process.

10	Further, and in any event, in our judgment it was open to the Employment Tribunal to find on the evidence that they heard that the managers who selected the Applicant for redundancy did not know that she suffered from multiple sclerosis and therefore that the fact that she did was not a factor taken into account in her selection.  Thus, for example, the Employment Tribunal were perfectly entitled to find as they did that the Personnel Manager did not inform the managers who selected the Applicant for redundancy that she suffered from multiple sclerosis (see paragraphs 9 and 13 of the Extended Reasons), that others had not so informed those managers and indeed that (contrary to her case) the Applicant herself had not informed those managers.

11	The second ground relates to a letter written by the Applicant’s doctor dated 16 June 1999 and thus after her dismissal and the issue of proceedings.  It was said by reference to this letter that the findings of the Employment Tribunal in paragraph 11 of the Extended Reasons as to the effect of the Applicant’s disability were unsustainable.  Further it was said that the last sentence of paragraph 10 of the Extended Reasons (which refers to this letter) shows that the Employment Tribunal misconstrued the evidence in a way which reveals a distorted view of the evidence before them.  

12	We do not agree.  

13	The thrust of the findings in paragraph 11 of the Extended Reasons, and indeed their relevance, is that the Respondent by its relevant managers had not noticed any signs of disability in the Applicant.  That finding is founded on evidence that was before the Employment Tribunal and is not contradicted by the letter dated 16 June 1999.  

14	In our judgment in advancing this ground the Appellant takes an unwarranted and inappropriately strict approach to the construction of the last sentence of paragraph 10 of the Extended Reasons.  In our judgment read fairly it does not misquote or show that the Employment Tribunal misunderstood the letter of 16 June 1999.  Further, and in any event, this sentence does not show (as was submitted) that the Employment Tribunal misconstrued the evidence and took a distorted view of it.  

15	In short this aspect of the appeal fails.  We add, for the avoidance of doubt, that further points raised in the amended Notice of Appeal which could have been argued under this head but were not advanced before us also do not constitute good grounds of appeal.

The second aspect of the appeal – failure by the Employment Tribunal to have regard to paragraph 4.62 of the Code.  

16	It was common ground that this was not a point or argument raised before the Employment Tribunal and the first time that it was raised was at the preliminary hearing before this Tribunal when the Appellant was given leave to add it as a ground to her Notice of Appeal.

17	The order giving such leave to amend did not expressly give the Respondent leave to apply to discharge it.  In our view it should have done so but nothing turns on this because (amongst other things) the Appellant, through her Counsel, very properly did not take any point that as the Appellant had been given leave on an ex parte hearing this meant that we had to deal with the point.

18	In summary the Respondent’s position in respect of this ground was as follow:

(a)	The Employment Tribunal could not properly have considered a claim based on paragraph 4.62 of the Code because it was not a claim that was made (or pleaded) before them.  In this context the Respondent referred us to and relied on the following authorities: Kumchyk v Derby County Council [1978] ICR 1116 (and in particular at 1123 B/G); Chapman v Simon [1994] IRLR 124 (in particular the second paragraph of the headnote and paragraphs 33 and 44 of the judgments); Clark v Novacold Ltd [1999] ICR 951 (in particular at 965 F to 966 H and especially 966 E) and Smith v Zeneca [2000] ICR 800 (in particular paragraphs 22, 43 to 47 and 52).

(b)	Further or alternatively we should not allow the Appellant to advance this new ground on appeal.  In this respect the Respondent relied on Jones v Governing Body of Burdett Coutts School [1999] ICR 38 (in particular at pages 43/44).  In this context we have also had regard to Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719.

(c)	In any event paragraph 4.62 of the Code was not relevant to, and thus did not apply to, the Applicant’s claim under Section 5(1) DDA.

19	In our judgment all those arguments are correct and it follows that this aspect of the appeal should also be dismissed.

Some background

20	The Applicant was dismissed with effect from 26 March 1999.  The reason given was redundancy.  In box 1 of her Originating Application she asserted that the type of her complaint was “Unfair Selection for Redundancy”.  In box 11 she described the claim as “Unfair Dismissal / Unfair Selection for Redundancy” and the further details contained therein show that she asserted that:

(a)	she had received no warning or consultation;

(b)	she had longer service than others who were not selected, and 
(c)	she believed that her multiple sclerosis was a factor in the Respondent’s decision to select her for redundancy.

21	Later (by letter dated 17 May 1999 from the Burgess Hill Citizens Advice Bureau) the Applicant sought to widen her complaint to include a claim under the DDA.  The Respondent did not oppose that amendment.  In doing so the Respondent’s Solicitors stated as follows:

“It is appreciated that the Applicant has, in her grounds of complaint, raised the allegation that her illness was a factor in the Respondent deciding to select her for redundancy and will, therefore, form part of the evidence to be presented to the Tribunal at the hearing on 15 June.  Accordingly, the Respondent is prepared to agree to the proposed amendment.”

22	We agree with the Respondent that it is important to note that the amendment did not seek to widen the factual allegations in box 11 of the Applicant’s Originating Application.  The Appellant, through her Counsel, accepted that this was the case.  The position was therefore that the Applicant simply wished to make a claim under the DDA in respect of the allegations she had already made in respect of her claim for unfair dismissal.  Her case under the DDA was therefore simply that (a) she suffered from a disability within Section 1, and (b) by taking that into account in reaching the decision to select her for redundancy and to dismiss her the Respondent had discriminated against her contrary to Sections 4(2)(b) and 5(1). Before the Employment Tribunal the Respondent defended that case on the facts by asserting that the Applicant’s multiple sclerosis had nothing to do with its decision to select her for redundancy.

23	It follows that the Applicant did not make any factual, or other, assertions to suggest that she wished to advance a wider case, for example by asserting that the Respondent’s employment “arrangements” had put her at a substantial disadvantage in comparison with persons who are not disabled and there were some relevant “reasonable steps” which the Respondent ought to have taken to prevent that disadvantage, so as to put the Respondent in breach of its duty under Section 6 and to render it potentially liable, additionally, under Section 5(2)DDA.  

24	If the Applicant had sought to so widen her claim, it would have been incumbent upon her to articulate the particulars of her case under Section 6 DDA and the Respondent would have had to consider how to meet that case, both on the facts and as a matter of law.  Additional questions of fact and law would have had to be considered for example as to:

(i)	whether any, and if so what, “arrangements” placed the Applicant at a “substantial disadvantage” under Section 6(1) DDA;

(ii)	whether there were any, and if so what, “reasonable steps” which the Respondent ought to have taken to prevent such “arrangements” having that effect, again under Section 6(1) DDA;

(iii)	whether the Respondent’s failure to take any “reasonable steps” was “justified” in the circumstances; and 

(iv)	whether any such complaint was in time and if it was not whether the Employment Tribunal should exercise its discretion to permit it to be heard (see paragraph 3 of Schedule 3 to the DDA).

25	We accept that if the Applicant had attempted to advance a wider case at the hearing the Respondent would have objected to her doing so.

26	The case before the Employment Tribunal proceeded on the basis of the issues raised by the Applicant in box 11 of her Originating Application and her evidence confirmed that that was the nature and the extent of her case.  This was that the true reason for her selection was her multiple sclerosis and there had been no consultation.  It follows that neither party addressed, either in evidence or argument, any factual or legal issues under Sections 5(2) and 6 DDA.  In fact the Respondent conceded unfair dismissal (on the grounds of a lack of consultation) and, accordingly, the hearing focused on the evidence and argument relevant to the reasons for the Respondent’s selection of the Applicant for redundancy.  It was effectively on this issue that the Applicant’s case under the DDA depended.

Paragraph 4.62 of the Code

27	This provides as follows:

“If an employer’s agent or employee (for example, an occupational health officer, a personnel officer or line manager) knows in that capacity of an employee’s disability, then the employer cannot claim that he does not know of that person’s disability, and that he is therefore excluded from the obligation to make a reasonable adjustment.  This will be the case even if the disabled person specifically asked for such information to be kept confidential.  Employers will therefore need to ensure that where information about disabled people may come through different channels, there is a means – suitably confidential – for bringing the information together, so the employer’s duties under the Act are fulfilled.
[Examples are then given].”

28	We accept that the Code should not be read narrowly and that in considering it (and thus the examples it contains) and the application of the DDA an employer (and tribunals) should be flexible (see paragraph 3.1 of the Code).  We also accept the point made in paragraph 3.5 of the Code that employers (and thus tribunals) should remember that treating people equally will not always avoid a breach of the DDA.  Further we accept that in paragraph 4.55 of the Code it is stated as follows:

“The Act says that employers are responsible for the actions done by their employees in the course of their employment.  In legal proceedings against employer based on actions of an employee, it is a defence that the employer took such steps as were reasonably practicable to prevent such actions.  It is not a defence for the employer simply to show the action took place without his knowledge or approval.  Employers who act through agents will also be liable for the actions of their agents done with the employer’s express or implied authority.
[An example is then given].”

29	Naturally we also accept that Section 53(6) of the DDA 1995 provides that:

“53(6)  If any provision of a code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question.”

There is no express provision in the DDA setting out the consequences of a failure of a court or tribunal to take such a provision of a Code into account.  Further in one sense (and perhaps a rigid one) this provision is circular because it only applies when it appears to a court or tribunal that a provision of a Code is relevant and it is therefore at least arguable that if a court or tribunal has reached this conclusion it has inevitably taken that provision into account.  

30	However this case is not about the extent of the duty of an Employment Tribunal to mention provisions of the Code in their Extended Reasons (as to which see Heinz v Kenrick [2000] ICR 491).  The Appellant’s case was not based on an argument that the Employment Tribunal should have referred to paragraph 4.62 of the Code in their Extended Reasons but did not do so.  Rather her case was that (as is accepted) the Employment Tribunal did not take this paragraph into account and (which is denied) they should have done.

The Respondent’s first point

31	This was that it was not open to the Employment Tribunal to consider a complaint or claim based on paragraph 4.62 of the Code without a formal or informal amendment to allow her to do so.  For this reason, and in this sense, it was said that the Employment Tribunal did not have jurisdiction to determine such a claim.

32	The Appellant, through her Counsel, argued that although the Appellant did not assert or make a claim based on paragraph 4.62 of the Code it was the duty of the Employment Tribunal to raise such a claim of its own motion and particularly when they had decided to reject the claim advanced by the Applicant on the facts.  We do not agree.  In our judgment a claim or complaint under the DDA based on an application of paragraph 4.62 of the Code was far from being an obvious or standard point in, or relating to, the claim actually made by the Applicant.  In our judgment the authorities cited above in respect of the Respondent’s first point established that in the circumstances of this case the Employment Tribunal had no such duty (see also Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 and Aniedobe v LB of Hammersmith and Fulham EAT/481/98.

33	It follows, in our judgment, that the Respondent’s first point is a good one and disposes of this appeal.  

The Respondent’s second point

34	The distinction between this point and the first point is that it relates primarily to new arguments within an existing claim rather than the introduction of a new claim or complaint (for example, one based on a different “act complained of”).  

35	In our judgment this point is also a good one.  In our view there are no exceptional circumstances which would warrant the new arguments that the Appellant seeks to introduce based on paragraph 4.62 of the Code being introduced for the first time on appeal.

36	Accordingly, in our judgment this point also disposes of this appeal.

The Respondent’s third point

37	This is that paragraph 4.62 of the Code was not relevant to, and thus did not apply to, the Applicant’s claim under Section 5(1) DDA.  Although counsel for the Appellant spent most time on this point we propose to deal with it fairly shortly.  This is partly because it is linked to the first point which is based on the assertion (which we have accepted) that a claim based on paragraph 4.62 of the Code would be a new claim and also because of our conclusions on the first two points.

38	In our judgment paragraph 4.62 of the Code is limited to the obligation to make a reasonable adjustment and issues (e.g. justification) where that is relevant.  This is because this is what paragraph 4.62 says and notwithstanding the flexible approach to be adopted to its application we do not see why it should apply more widely.  Indeed in cases where the motivation of the relevant decision makers is a relevant and necessary ingredient of a case put under Section 5(1)(a) DDA (as was the case here) it seems to us that their actual knowledge rather than deemed or constructive knowledge of the employer is what is relevant.  In making that point we acknowledge that Clark v Novacold Ltd [1999] ICR 951 shows that the ingredients of the statutory test in Section 5(1)(a) DDA can be established without establishing that the employer (or the relevant decision makers on its behalf) knew of the Applicant’s disability. But in our judgment this does not mean that knowledge of the relevant decision maker can never be a relevant and essential ingredient (e.g. to establish the reason for the alleged less favourable treatment) and, in any event supports the view that paragraph 4.62 of the Code does not apply to Section 5(1)(a) DDA.

39	In the Clark case the reason for the dismissal was that the Applicant was no longer capable of performing the main functions of his job.  It was held that this related to his disability.  If the Applicant’s case had been that she was selected for redundancy and dismissed because she was not capable of performing parts of her job and in fact the reason for that incapability was her multiple sclerosis the actual, constructive or deemed knowledge of the decision makers that she suffered from multiple sclerosis (and thus a disability) would have been irrelevant.  But this was not the Applicant’s case.  Rather her case was that the relevant decision makers knew that she suffered from multiple sclerosis and took that into account and not that they thought she was not doing her job properly.   We add that in any event the findings of the Employment Tribunal are to the effect that the relevant decision makers had not concluded that the Applicant was not doing her job properly because those findings are to the effect that such problems as the Applicant was experiencing due to her disability had not been noticed.   Also no issue was raised under Section 5(1)(b) DDA because the Section 5(1)(a) threshold was not satisfied.

Overall decision

40	We dismiss this appeal.