Factual and Procedural Background
The appellant, Company A, employed the Plaintiff, a profoundly deaf individual, initially as a payroll programmer/analyst and later redeployed him as a database developer/analyst. The Plaintiff’s role involved modifying and maintaining bespoke database systems and assisting staff with database issues. The Plaintiff communicated primarily through lip reading and sign language, often requiring an interpreter, especially with unfamiliar staff.
In September 2003, the Plaintiff accessed a colleague’s terminal remotely to assist with a database issue, during which he forwarded three emails from her terminal to his own, including one personal and one containing confidential staff information. This action breached Company A’s policy restricting IT staff’s access to others’ computers to work-related purposes only.
Following this, the Plaintiff was suspended and subjected to an investigatory meeting and a disciplinary hearing, the latter conducted without an interpreter, leading to his dismissal for misconduct. The Plaintiff appealed; the appeal hearing included an interpreter initially and was conducted with assistance from a representative who also acted as an interpreter. The dismissal was upheld.
The Plaintiff brought claims before the Employment Tribunal (ET) for unfair dismissal under the Employment Rights Act 1996 and disability discrimination under the Disability Discrimination Act 1995. The ET found the dismissal unfair due to procedural defects, particularly the absence of an interpreter at the first hearing, and found discrimination in the failure to make reasonable adjustments. However, the ET rejected the claim that the dismissal was for a reason related to disability, attributing it to misconduct.
Company A appealed to the Employment Appeal Tribunal (EAT), contesting the findings of unfair dismissal and discrimination. The Plaintiff cross-appealed on the disability discrimination claim. The EAT dismissed Company A’s appeal but allowed the Plaintiff’s cross-appeal regarding the disability-related reason for dismissal. Company A was granted permission to appeal to the Court of Appeal on limited grounds.
Legal Issues Presented
- Whether an appeal hearing that is a "review" rather than a "rehearing" can cure procedural defects in an earlier disciplinary hearing for the purposes of determining the fairness of dismissal under section 98(4) of the Employment Rights Act 1996.
- Whether the dismissal of a disabled employee for misconduct can also be considered as dismissal for a reason related to disability under sections 4 and 5(1) of the Disability Discrimination Act 1995, particularly when the employee’s disability affected their ability to explain their conduct.
Arguments of the Parties
Appellant's Arguments
- The ET erred in law by focusing on whether the appeal hearing was a "review" or a "rehearing" instead of assessing the fairness of the dismissal in all circumstances.
- The appeal hearing was sufficiently thorough and fair to cure any defects in the first hearing, consistent with the statutory test under section 98(4) of the Employment Rights Act 1996.
- The ET correctly focused on the employer’s reason for dismissal being misconduct, which was unrelated to the Plaintiff’s disability.
- The disability-related reason must be present in the employer’s mind for a claim under section 5(1) of the Disability Discrimination Act 1995 to succeed.
Appellee's Arguments
- The ET’s approach was correct in treating the appeal hearing as a review incapable of curing the procedural defects of the first hearing.
- There is no real conflict between precedent cases Whitbread and Adivihalli; the issue is factual and depends on the thoroughness of the appeal hearing.
- The dismissal was partly based on the Plaintiff’s failure to give an adequate explanation due to his disability, constituting a reason related to disability under the Disability Discrimination Act 1995.
- An employer can discriminate without conscious intention; the failure to provide reasonable adjustments affected the dismissal decision.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Whitbread v Mills [1988] ICR 776 |
Consideration of whether an appeal hearing can cure defects in an earlier disciplinary hearing; distinction between "review" and "rehearing". |
The Court clarified that while Whitbread provided useful illustration, it should not be cited as establishing a strict legal rule that only rehearings can cure defects; the fairness of the overall process is determinative. |
| Adivihalli v Exports Credits Guarantee Department (unreported, EAT/917/97) |
Emphasises the statutory test of fairness under ERA 1996 and that the question of curing defects depends on the facts and circumstances, not labels. |
The Court endorsed Adivihalli’s approach as consistent with the statutory test and preferred it over a rigid categorisation of appeal hearings. |
| West Midlands Co-operative Society v Tipton [1986] ICR 192 |
Both original and appellate decisions are necessary elements in the disciplinary process; fairness must be assessed overall. |
Quoted to support the principle that the entire disciplinary and appeal process must be considered in fairness assessments. |
| Calvin v Carr [1980] AC 574 |
No absolute rule that defects in natural justice at original hearing can be cured on appeal; depends on circumstances. |
Used to illustrate that fairness depends on the nature of the appeal process and the severity of defects. |
| Clark v Civil Aviation Authority [1991] IRLR 412 |
Appeal hearing must be full and proper to rectify initial procedural unfairness. |
Discussed in relation to whether appeal hearings should be categorised as rehearings to cure defects. |
| Polkey v A.E. Dayton Services [1988] ICR 142 |
Consideration of reduction or extinction of compensation for unfair dismissal based on likelihood of dismissal if proper procedures had been followed. |
Referenced regarding remedies and compensation adjustments after finding unfair dismissal. |
| London Clubs Management v Hood [2001] IRLR 719 |
Distinction between treatment related to disability and treatment applied uniformly under a policy. |
Relied upon to argue that dismissal for misconduct unrelated to disability is not discriminatory. |
| Clark v TDG Ltd t/a Novacold [1999] IRLR 318 |
Interpretation of "reason related to disability" in discrimination claims. |
Considered but found not directly helpful beyond confirming the factual nature of the reason-related question. |
| H. J. Heinz Co Ltd v Kenrick [2000] IRLR 144 |
Employer’s knowledge of disability-related condition can establish a reason related to disability. |
Interpreted to support the proposition that the disability-related reason must be present in the employer’s mind. |
| Union of Construction, Allied Trades and Technicians v Brain [1981] IRLR 224 |
Reasonableness is a question of fact; tribunals should consider equity and substantial merits broadly. |
Quoted to emphasize the broad and practical approach tribunals must take in assessing fairness. |
| E I Du Pont de Nemours & Co v S T Du Pont [2003] EWCA Civ 1368 |
Scope and distinction between "review" and "rehearing" in appellate proceedings. |
Used to illustrate the difficulty and limited utility of strict categorization between review and rehearing. |
Court's Reasoning and Analysis
The Court examined the statutory framework under section 98(4) of the Employment Rights Act 1996, which requires assessment of whether the employer acted reasonably in all circumstances, considering procedural fairness and the substantial merits of the case.
The Court analysed the precedent cases Whitbread and Adivihalli, concluding they are consistent in principle: the fairness of dismissal must be assessed on the overall disciplinary process, not by rigidly categorising appeal hearings as either rehearings or reviews. The Court found that the Employment Tribunal erred by focusing on whether the appeal hearing was a “review” rather than a “rehearing,” instead of assessing the fairness of the entire disciplinary process.
The Court noted that the Employment Tribunal failed to properly evaluate the thoroughness and procedural fairness of the appeal hearing, the open-mindedness of the decision-maker, and the sufficiency of the employer’s reason for dismissal. The Tribunal separated procedural fairness from the misconduct reason, contrary to the statutory test requiring a holistic approach.
Regarding the disability discrimination claim, the Court interpreted section 5(1) of the Disability Discrimination Act 1995 as requiring that the disability-related reason for dismissal must be present in the employer’s mind. The Court rejected the Plaintiff’s argument that the inability to explain conduct due to disability, absent evidence that the employer considered the disability, amounted to a disability-related reason. The Court held that discrimination requires the employer’s state of mind to be affected by the disability-related reason, whether consciously or subconsciously.
The Court found that the Employment Appeal Tribunal erred in overturning the Employment Tribunal’s decision on this point and restored the original finding that the dismissal was not for a reason related to disability.
Holding and Implications
The Court allowed the appeal by Company A in relation to the finding of unfair dismissal and the issue of disability discrimination under section 5(1) of the Disability Discrimination Act 1995.
Specifically, the Court held that the Employment Tribunal erred in law by misapplying the test for procedural fairness and remitted the unfair dismissal claim for rehearing before a differently constituted tribunal to ensure impartiality and fairness.
On the disability discrimination cross-appeal, the Court reversed the Employment Appeal Tribunal’s decision and restored the Employment Tribunal’s original finding that the dismissal was not for a reason related to the Plaintiff’s disability, emphasizing the necessity of the employer’s disability-related reason being present in the employer’s mind.
The decision clarifies that in unfair dismissal cases, tribunals must assess the fairness of the entire disciplinary process rather than rely on formalistic labels such as "review" or "rehearing" for appeal hearings. It also affirms that disability discrimination claims require a disability-related reason to be a factor in the employer’s decision-making process, not merely a causal effect of disability on the employee’s behavior.
No new precedent was established beyond reaffirming and clarifying existing legal principles.