PROCEDURAL UNFAIRNESS

Taylor v OCS Group Ltd: [2006] EWCA Civ 702

CA: Brooke, Dyson and Smith LJJ: 31 May 2006

The claimant was profoundly and pre-lingually deaf and his deafness amounted to a disability for the purposes of the Disability Discrimination Act 1995. He was suspended from duty for e-mailing to himself, from a colleague's terminal, files which he had no authority to see. A disciplinary meeting was held, at which the claimant found it particularly difficult to lip-read the person conducting proceedings; and no interpreter was provided. The conclusion drawn was that the claimant was guilty of misconduct and he was told that he was dismissed, although it was apparent from the notes taken at the meeting that he had not understood what had happened. The claimant appealed. At the appeal the claimant was represented by his sister, who could communicate well with the claimant and who took over as interpreter when the interpreter had to leave. The decision to dismiss the claimant was affirmed, and he brought proceedings in an employment tribunal claiming that his dismissal was unfair under section 98 of the Employment Rights Act 1996 and that his employer had subjected him to discrimination contrary to section 5(1) and (2) of the 1995 Act. The employment tribunal found that, while the dismissal was for a potentially fair reason, it was unfair in that the claimant had been unable to participate effectively in the disciplinary process, since the procedure on first hearing had been fundamentally flawed and the appeal hearing had been a review and not a rehearing and did not cure the defects of the first hearing. The tribunal also upheld the claim that the employer had discriminated against the claimant contrary to section 5(2) of the 1995 Act, by failing to make a reasonable adjustment to the arrangements for the disciplinary hearing in not providing an interpreter; but it dismissed his claim that the employer had discriminated against him by dismissing him, since it found that the reason for the dismissal was misconduct and not a reason related to his disability for the purposes of section 5(1)(a). The Employment Appeal Tribunal dismissed an appeal by the employer and allowed a cross-appeal by the claimant against the dismissal of his discrimination claim under section 5(1).

The employer appealed.

The Court of Appeal held:
(1) Where on claims of unfair dismissal complaint was made about the employer's disciplinary procedure, the employment tribunal should focus on the statutory test in section 98(4) of the Employment Rights Act 1996 and look at the substance of what had happened throughout the disciplinary process. It was inappropriate for a tribunal to attempt to categorise an internal appeal as a either "rehearing" or a "review", as there was no rule of law that only a rehearing was capable of curing earlier defects and what mattered was whether the overall process was fair, notwithstanding any deficiencies at an early stage. Further, the tribunal should consider the fairness of procedural issues together with the reason for the dismissal and decide whether, in all the circumstances, the employer had acted reasonably in treating it as sufficient reason to dismiss. In the present case the employment tribunal, instead of applying the statutory test, had separated procedural unfairness from the misconduct and held the dismissal unfair without assessing the fairness of the disciplinary process as a whole. As it could not be said that, notwithstanding that error, its conclusion was plainly right, the matter would be remitted for rehearing.

(2) For the purposes of section 5(1) of the Disability Discrimination Act 1995, an employer could not discriminate against a disabled employee unless he treated him differently for a reason, present in the employer's mind at the time, that was related to the employee's disability. While the inability of the claimant on account of his deafness to explain his conduct might have contributed to his dismissal, as a matter of causation, it was not said to have affected the employer's mind. As there was no evidence that the employer had a disability-related reason in mind when dismissing the claimant, the employment tribunal had been right to dismiss the claim under section 5(1).

The appeal was allowed.

Appearances: Adrian Lynch QC (Nabarro Nathanson) for the employer; Tess Gill (Disability Rights Commission) for the claimant.