British Sugar Plc v Kirker

Factual and Procedural Background

The Appellant, Company A, appealed against the liability and remedies decisions of an Industrial Tribunal which upheld the complaints of the Appellee, Plaintiff, alleging unfair dismissal and disability discrimination. The Plaintiff had been employed by Company A since 1977 at its refinery site and was dismissed on grounds of redundancy in March 1997.

The Plaintiff was visually impaired from birth, suffering from advanced glaucoma and aphakia, with very limited vision, and was registered as partially sighted. Initially, Company A denied that the Plaintiff was disabled under the Disability Discrimination Act 1995 (DDA), but conceded disability at the liability hearing.

Throughout the Plaintiff's employment, his poor eyesight was an issue with management, affecting promotion opportunities. On several occasions, concerns were expressed regarding the Plaintiff's safety and ability to perform certain tasks due to his disability. The Plaintiff failed to secure promotions, with managers citing his eyesight as a reason.

In 1994, Company A restructured the shift chemist roles, and the Plaintiff remained on shift work while colleagues moved to day work. Disputes arose regarding the Plaintiff's refusal or acceptance of transfer to day work and related compensation.

In late 1996 and early 1997, Company A restructured its workforce, selecting employees for redundancy based on a points-weighted criteria system assessing work attributes and potential. The Plaintiff scored 40.5 points, below the cut-off score of 46, and was dismissed effective 31st March 1997. The Plaintiff appealed internally but was unsuccessful.

The Plaintiff filed claims of unfair dismissal and disability discrimination, alleging that the redundancy selection criteria were unfair, subjective, and applied discriminatorily due to his disability. Company A denied discrimination and contended the dismissal was fair and justified by genuine redundancy.

The Industrial Tribunal found the Plaintiff to be a credible witness and concluded that Company A's managers were influenced by the Plaintiff's disability in their assessments, resulting in unfair dismissal and unlawful disability discrimination. The Tribunal awarded compensation exceeding £100,000.

The Appellant Company appealed the Tribunal’s decisions on multiple grounds, focusing primarily on the disability discrimination findings and the application of the DDA.

Legal Issues Presented

1. Whether the Industrial Tribunal was entitled to find that the Plaintiff was disabled under the Disability Discrimination Act 1995.
2. Whether the Plaintiff was subjected to less favourable treatment related to his disability in the redundancy selection process.
3. Whether the pre-DDA incidents of less favourable treatment could be considered in assessing discrimination occurring after the Act came into force.
4. Whether the redundancy selection criteria and their application were fair and non-discriminatory.
5. Whether the dismissal was unfair in light of the findings on disability discrimination.
6. Whether the Tribunal erred in its assessment of compensation and causation.
7. Whether the Appellant was entitled to any relief on appeal, including leave to further appeal.

Arguments of the Parties

Appellant's Arguments

• The Appellant initially denied the Plaintiff was disabled under the DDA but later conceded this point.
• The Appellant argued that the less favourable treatment of the Plaintiff before the DDA came into force was justifiable, primarily based on health and safety concerns.
• The Appellant contended that the Tribunal was not entitled to draw an inference of general prejudice against the Plaintiff from pre-DDA events when considering post-DDA complaints.
• The Appellant submitted that the Tribunal failed to properly link pre-DDA incidents to the actual scoring in the redundancy assessment.
• The Appellant argued that the Plaintiff failed to identify a proper comparator employee and that less favourable treatment was not established without such comparison.
• The Appellant maintained that the redundancy selection criteria were objectively reasonable and fairly applied.
• The Appellant requested a reduction in the Plaintiff’s costs on appeal, alleging unreasonable conduct in the proceedings.
• The Appellant sought leave to appeal to the Court of Appeal.

Appellee's Arguments

• The Plaintiff argued that the redundancy selection process was influenced by disability-related prejudice, resulting in less favourable treatment and dismissal.
• The Plaintiff contended that pre-DDA incidents of discrimination were relevant background to understanding the discriminatory attitudes that persisted into the post-DDA period.
• The Plaintiff maintained that the Appellant’s managers’ training on the DDA was insufficient to prevent discriminatory judgments.
• The Plaintiff asserted that the Appellant failed to justify the less favourable treatment under the DDA.
• The Plaintiff opposed the Appellant’s costs application, arguing the conduct was not unreasonable.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by acknowledging the Appellant’s concession that the Plaintiff was disabled, which was properly made and accepted. The Court examined the history of the Plaintiff’s employment, noting repeated concerns by Company A’s managers about his eyesight, which had negatively influenced his career progression and treatment.

The Court rejected the Appellant’s submission that pre-DDA incidents of less favourable treatment, even if justifiable on safety grounds, could not be considered in assessing discrimination occurring after the DDA came into force. It found analogy with race and sex discrimination cases where past acts are relevant background to current complaints.

The Court found that the Tribunal was entitled to conclude that the Plaintiff’s disability prejudiced the managers’ assessments during the redundancy selection process. The Tribunal’s finding that the Plaintiff was scored unfairly low in key criteria related to promotion potential and performance was supported by the evidence, including the involvement of a manager who had previously expressed concerns related to the Plaintiff’s eyesight.

The Court dismissed the Appellant’s argument regarding the absence of a nominated comparator, noting that this argument was not raised below and that the DDA does not require a like-for-like comparison as race and sex discrimination legislation does. The Tribunal properly considered whether the Plaintiff was treated less favourably for a reason related to his disability compared to others who were not disabled.

Regarding unfair dismissal, the Court noted the Appellant’s concession that if disability discrimination caused the dismissal, then the dismissal was likely unfair. The Court observed that the Tribunal correctly separated the issues of unfair dismissal and disability discrimination and reached permissible conclusions on both.

The Court rejected the Appellant’s request for costs against the Plaintiff, finding that refining grounds of appeal before the hearing is a proper practice and does not constitute unreasonable conduct.

Finally, the Court refused leave to appeal to the Court of Appeal, finding no point of principle warranting further appeal.

Holding and Implications

The Court DISMISSED THE APPEAL, thereby upholding the Industrial Tribunal’s findings that the Plaintiff was unfairly dismissed and subjected to unlawful disability discrimination by Company A.

The direct effect of this decision is that the Plaintiff’s award of compensation totaling £103,146.49 stands, reflecting past and future losses, injury to feelings, and loss of statutory rights. The decision confirms that employers must ensure that redundancy selection processes are free from disability-related prejudice and that pre-legislation discriminatory attitudes may be relevant background in assessing current claims under the DDA.

No new legal precedent was established beyond affirming established principles relating to the application of the DDA and the evidential approach to discrimination claims.