E A Gibson Shipbrokers Ltd v Staples, Court of Appeal - United Kingdom Employment Appeal Tribunal, October 17, 2008, [2008] UKEAT 0178_08_1710

Resolution Date:October 17, 2008
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:E A Gibson Shipbrokers Ltd v Staples

Copyright 2007Appeal No. UKEAT/0178/08/RNUKEAT/0179/08/RNEMPLOYMENT APPEAL TRIBUNAL58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 7 August 2008Judgment handed down on 17 October 2008BeforeHIS HONOUR JUDGE ANSELLMRS J M MATTHIASMR D WELCHE A GIBSON SHIPBROKERS LTD APPELLANTMR E J STAPLES RESPONDENTTranscript of ProceedingsJUDGMENTUKEAT/0178/08/RNUKEAT/0179/08/RN APPEARANCESUKEAT/0178/08/RNUKEAT/0179/08/RNSUMMARYDISABILITY DISCRIMINATION: Reasonable adjustmentsTribunal was entitled to conclude that a combination of adjustments would have allowed an employee suffering from disability to return to work.UKEAT/0178/08/RNUKEAT/0179/08/RN-25-HIS HONOUR JUDGE ANSELL1. In these appeals the Respondent employers (``Gibsons'') seeks to appeal from a unanimous decision of the Employment Tribunal sent to the parties on 12 February 2008 following a hearing on 14 January 2008 which held that Gibsons had failed to make reasonable adjustments and so had discriminated against the employee (``Mr Staples'') contrary to the Disability Discrimination Act 1995. The Tribunal also adjourned for further submissions and deliberation a claim in relation to a failure to pay sick pay. The second appeal is from a decision of the same Tribunal of 11 March 2008 which refused Gibsons' application for a review of the decision to adjourn the sick pay issue.2. The judgment of 12 February 2008 followed a hearing on 14 January 2008 which was held pursuant to an order of the Employment Appeal Tribunal of 18 September 2007 which was in turn issued following a judgment of the Employment Appeal Tribunal handed down on 18 September 2007 which allowed an appeal against the judgment of the Tribunal promulgated on 3 April 2007.3. The background facts are that Mr Staples, born on 15 December 1948, commenced employment with Gibsons on 28 October 1991 as a broker, being remunerated by salary, bonus and in addition was provided a car. He was appointed a director of the company on 1 July 1996 and acted as Executive Director responsible for business development from 19 August 1998 to 7 February 2003 when he reverted to the role of ordinary director.4. In 1999 Mr Staples went through a divorce, and although in February of that year he tended his resignation it was not accepted and Gibsons allowed Mr Staples to reduce the number of accounts he was handling, initially for a six month period though later extended to the end of April 2000 when he returned to full-time working.5. From 16 August 2004 until the dismissal of Mr Staples' appeal following his dismissal in April 2006 he was a disabled person within the meaning of the Disability Discrimination Act 1995. The condition giving rise to his disability was recurrent atrial arrhythmia. In layman's terms Mr Staples would experience episodes in which his heart rate increased and he needed to rest, these episodes on occasion being sufficiently severe that he would become dizzy and black out. Prior to this illness his work had involved a degree of long haul travel and entertaining clients. He was paid by way of salary and bonus and a remuneration in the order of £280,000 gross. His contract of employment provided for sick pay 26 weeks at full basic salary and a further 26 weeks at half pay. There was also a PHI scheme through an external insurer, Unum. Following six months' full sick pay the insurer began making payments under the PHI scheme on 15 February 2005. Those payments represented the equivalent of half basic salary plus 50 per cent of the average of fluctuating emoluments over the previous three years, which amounted in total to around 75 per cent of his earnings. In August 2005 the insurers decided to cease cover and despite attempts to appeal this decision no further payments were made under the PHI scheme. However, from 1 October 2005 until 30 January 2006 Gibsons paid Mr Staples at the rate of the PHI benefit.6. On 23 February 2006 a meeting took place between Mr Staples and Mr Brook, Company Secretary and Finance Director. Following that meeting Mr Brook dismissed Mr Staples on ill health capability grounds by letter dated 1 March. An appeal by Mr Staples to Mr Lilley against that decision was heard on 6 April and dismissed by letter dated 20 April.7. By its first decision in April 2007 the Tribunal decided that Mr Staples was disabled within the meaning of the Disability Discrimination Act 1995, that he had been discriminated against by Gibsons contrary to the Act, that he had been unfairly dismissed and that Gibsons were in breach of the contract of employment by failing to pay Mr Staples his normal rate of pay during his notice period. 8. Gibsons' appealed to the Employment Appeal Tribunal only in relation to the conclusions on disability discrimination.9. The Employment Appeal Tribunal found that the Tribunal had erred in the following respects: (i) In respect of the failure to consider to making reasonable adjustments, the Tribunal failed to indicate whether it preferred to follow the case of Tarbuck v Sainsburys Supermarket Ltd [2006] IRLR 664 or Mid-Staffordshire General Hospital Trust v Cambridge [2003] IRLR 566. (ii) The Tribunal had not sufficiently explained its reasoning leading up to its conclusion that Gibsons had failed in its duty under s4A of the Disability Discrimination Act to make reasonable adjustments such as would have prevented Mr Staples from being dismissed.(iii) In relation to its findings on sick pay the Tribunal had not explained how the adjustments found to be reasonable would have resulted in Mr Staples being back at work in February 2006.10. We note that the Employment Appeal Tribunal found that the first decision was deficient only as to its insufficiency of reasoning and Gibsons were not successful in persuading the Employment Appeal Tribunal the Tribunal had actually made an error of principle in its approach or conclusions. By order of the Employment Appeal Tribunal dated 18 September 2007 the matter was remitted back to the Tribunal back in these terms:``The issue of reasonable adjustments be remitted back to the same Employment Tribunal for reconsideration and clarification.''11. On 29 October 2007 the second Tribunal held a CMD at which neither party made an application for any further evidence to be considered at the second hearing. The parties were content, and the Tribunal so decided, that the second hearing would therefore involve only further written and oral submissions from the parties. However, the Tribunal did determine that they could make further findings of fact if necessary based upon the evidence produced at the first hearing.12. As stated above the second hearing took place before the Tribunal on 14 January 2008 and in a decision sent to the parties on 12 February the Tribunal decided that(i) their task on remission was not restricted simply to clarifying the reasons for the first judgment but extended to reconsidering its findings and providing clear reasons whatever their conclusions might be. (ii) Tarbuck was good law; Mr Staples accepted that view although reserving his position to argue to the contrary in the Court of Appeal if necessary. The issue was again raised in the Respondent's Answer by way of cross-appeal to protect their position. Mr Burns, on behalf of Mr Staples, did not advance any arguments in relation to Tarbuck before us and in effect invited us to formally dismiss the appeal again to protect their position should the matter proceed further. (iii) The case for Mr Staples at the first hearing was not restricted to an argument that the breach of the duty in s4A Disability Discrimination Act was that Gibsons had failed to consider and discuss reasonable adjustments but that it included the claim that they had failed to make such adjustments. (iv) Having considered the judgment in Project Management Institute v Latif [2007] IRLR 579, Mr Staples had given sufficient detail of the proposed adjustments for the burden to shift to the employers to show that it did comply with the duty. (v) Gibsons had not established in the balance of probabilities either that the proposed adjustments were not reasonable or that if they had been made Mr Staples would still have been dismissed and therefore they failed in their duty under s4A. (vi) The issues in relation to sick pay for February 2006 had not been adequately ventilated to enable the Tribunal to make a proper decision and the proper and efficient way of dealing with the sick pay claim was to adjourn it for the Tribunal to receive further submissions on the matter at a future remedies hearing. 13. As set out above, in due course an application for review of the sick pay decision was rejected by Judge Baron on the basis that ``There appears to have been some confusion about the exact nature of the claim which has been made by the Claimant and that confusion only came to light when the Tribunal was last considering the matter. The Tribunal wishes to receive representations from both parties as to what is now in issue so that a proper judicial determination can be made on the matter. The Judge agrees with the Claimant's solicitors when they refer to the procedure as being proportionate and efficient. There will no doubt be a hearing as to remedies and this matter need not increase costs to any material extent.''14. At the time of the hearing before us, the remedies hearing had in fact taken place, a decision being awaited. We were informed that Mr Staples' losses placed before the Tribunal included an allegation that had proper adjustments been made he would have returned to work in February 2006.15. Before returning to the grounds of appeal we would note that, on behalf of Mr Staples, Mr Burns argued that this entire appeal was merely an attempt to relitigate the issues that had been properly determined by the two Tribunal decisions. He reminded us that it was not our job to microscopically examine every single line and nuance of the Tribunal's two...

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