Appeal No. EAT/1275/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 November 2001

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MISS C HOLROYD
MR D A C LAMBERT

MR L M O'REGAN	APPELLANT

COMET GROUP PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS PAULA CRAVEN
Representative
Humberside Law Centre
95 Alfred Gelder Street
Hull
E Yorks
HU1 1EP	

MR JUSTICE MAURICE KAY

1.	This is the Preliminary Hearing of an appeal from an Employment Tribunal sitting in Hull.  That Employment Tribunal which sat on 22 August 2001 dismissed the applications of Mr O’Regan to the effect that he had been unfairly dismissed and discriminated against by reason of a disability.  

2.	As will soon become apparent this is a tragic case.  The chronology that has helpfully been provided by Miss Craven itemises the following events during the year 2000.  On 7 February the Appellant received an oral warning for attending work under the influence of alcohol on 16 December 1999.  On 15 August 2000 the Appellant was sent home from work.  There was at the very least a suspicion that he was intoxicated on that occasion.  He was off work unwell from 21 August until 4 September when he was told of pending disciplinary proceedings arising out at the events of 15 August.

3.	On 20 September he attended a hospital appointment and thereafter went to work but in the late afternoon was again considered to be or suspected of being under the influence of alcohol.  On 26 September there was a first disciplinary hearing as a result of which the manager in question, Mr Greenwood, concluded that the Appellant should be dismissed by reason of gross misconduct.  Thereafter the Appellant appealed.  An appeal hearing took place before Mr Lunn, initially on 25 October but Mr Lunn adjourned it for further medical evidence.  When he resumed the hearing on 8 November following receipt of a medical report, Mr Lunn confirmed the decision to dismiss following a re-hearing.

4.	Accordingly the Appellant stood dismissed.  Undoubtedly he had been suffering from ill health during the year 2000 and this was known at the final hearing.  What was not known to anybody either within the management or it seems to the Appellant himself is that he was developing the symptoms of terminal cancer of the oesophagus.  A diagnosis to that effect was made initially in February 2001 and was confirmed as being terminal in May 2001.  That is why we do not hesitate to describe this as a tragic case in respect of which Mr O’Regan and his family deserve the sympathy of this Employment Appeal Tribunal and they can be assured that they have that deepest sympathy.

5.	However, that sympathy does not avoid the need for us to examine with care whether there are arguable points of law in the appeal which the Appellant seeks to pursue.  The grounds of appeal are set out in the Notice of Appeal.  They were refined by Miss Craven in a helpful skeleton argument and she has developed them in the course of submissions today.  It is the view of all three members of this Employment Appeal Tribunal that Miss Craven has done all that could possibly be done on behalf of the Appellant.

6.	The first ground of Appeal which she seeks to advance is to the effect that the Employment Tribunal failed to apply properly the test in British Home Stores v Burchell.  The way she puts that is that she submits that Mr Lunn was not shown to have had and the Employment Tribunal did not find him to have had a genuine belief in the gross misconduct which formed the basis for the dismissal.

7.	Her particular concern in support of that submission is the medical report which Mr Lunn had adjourned the proceedings to obtain.  The medical report was from a general Practioner Dr Wong and is dated 3 November 2000.  It indicated that the Appellant was suffering from oesophagitis and gastritis which had recently been confirmed by endoscopy.  He was also suffering from intermittent chest pain probably due to stress.  Dr Wong added:

“With these two conditions it could affect his speech because of the symptoms.”

8.	The doctor described treatment that was being administered for the stomach symptoms adding:

“hopefully it will improve his speech pattern as well”

As to the chest pain, that might alleviate if the stress level were to be reduced.  Finally the doctor said:

“I am not aware of any other medical condition that affects his ability to communicate verbally.  Mr O’Regan is on treatment for his stomach and I don’t think it would affect his speech at all.”

9.	In the light of that coupled with all the other evidence in the case, is it arguable that Mr Lunn did not have a genuine belief in the Appellant’s gross misconduct, namely that his behaviour was alcohol induced and is it arguable that Mr Lunn did not properly address that question?  It is our judgment that neither of those things is arguable at all.  Mr Lunn conducted the final hearings over two sessions.  The gap in between being specifically referable at least in part to the procuring of the medical report.  There is no doubt in our mind that he had it in mind and that the Employment Tribunal was satisfied that he had it in mind.

10.	The Employment Tribunal referred to that medical evidence in terms in paragraphs 18 and 19 of the decision.  Of course, the medical evidence did not stand alone and one of the things which influenced the Employment Tribunal is recorded in this passage in paragraph 19:

“Amongst other things in the course of that appeal hearing, Mr Lunn asked Mr O’Regan as to his present medical condition.  Mr O’Regan told Mr Lunn that as far as the question of his speech is concerned, everything was now fine and he went on to say that his speech had cleared up, his chest had cleared up and that it was his wife that was now suffering from stress, not him.  Mr Lunn considered the position and decided to uphold the dismissal.”

11.	So far as the occasions upon which alcohol had been suspected were concerned it would be erroneous to assume or infer that the slurring of speech was the only manifestation which had weighed with the management.  It is quite clear from all the evidence that it was not.  In paragraph 30 of the decision the Employment Tribunal refer also to the Appellant being unable to string a sentence together, becoming loud, threatening and smelling of alcohol.  We conclude that Mr Lunn’s approach to the issue of gross misconduct and the Employment Tribunal’s application of the Burchell test are not susceptible to criticism even on an arguable basis and accordingly we find nothing in this first proposed ground of appeal.

12.	The second ground of appeal is advanced by reference to Anya v University of Oxford [2001] IRLR 377.  It is effectively a criticism of the Employment Tribunal for not analysing with appropriate care or, it is said, at all alleged inconsistencies in the evidence about the smell of alcohol in relation to the August occasion.  Miss Craven has taken us to some of the original documentation dealing with the occasions when the Appellant was interviewed, firstly by Mr Greenwood and Mr Longbone, secondly by Mr Lunn.

13.	The suggestion is essentially that so far as the August incident is concerned the evidence of a smell of alcohol was inconsistent or equivocal and that if the Employment Tribunal had properly analysed it they would have realised that and having reached that stage they might have made different findings as to the credibility of the Appellant.

14.	In our judgment there is no arguable basis that that submission raises a point of law that could sustain this appeal.  We have read the decision of the Employment Tribunal in full.  It is based of course on the evidence which the witnesses on both sides gave.  So far as the occasion in August is concerned the Employment Tribunal say in paragaph 8:

“We are told by Mr Greenwood that when he returned from that break, he noticed the change in Mr O’Regan’s behaviour.  He noted that his speech was slurred and that he was having difficulty in stringing a sentence together.  It seemed to him that Mr O’Regan may have been drinking during the course of his lunch break.  That was his perception, but in order to seek an outside view, he referred to a Mr Jeff Rowlands, a Technical Specialist who worked close to the Applicant.  Mr Rowland confirmed that he shared Mr Greenwood’s impression as to the Applicant’s demeanour.  Mr Greenwood then consulted with a Miss Sharon Hinchcliffe, an HR Development Adviser.  He asked her to test the Applicant out by phoning him and making the sort of routine enquiry that the Applicant was employed to deal with.  She did that, and it was Miss Hinchcliffe’s perception that the Applicant’s speech was slurred and Mr Greenwood noted that it took the Applicant much longer to perform the task that Miss Hinchcliffe requested him to do than he would have anticipated.

As a consequence, Mr Greenwood was emboldened in his view that the Applicant was affected by drink.”

15.	It is of course the case that the Appellant denied that he was so afflicted but the passage we have just recounted gives some indication of the perceptions that were made on 15 August and upon which the Employment Tribunal made findings which, it seems to us, cannot be described as arguably perverse.  Any ambiguity in relation to the single issue of the smell of alcohol seems to us to be a minor matter in the context of the management approach as a whole and the appraisal of that approach by the Employment Tribunal as a whole.  We simply cannot conceive that the decision may be impugnable because of a failure to go into an analysis about the smell of alcohol on that occasion and the inconsistencies which the evidence disclosed.

16.	We observe that Mr Greenwood, according to the Employment Tribunal, when he eventually reached his decision about dismissal, did so on the basis that the Appellant had “on at least two occasions” been at work under the influence of drink.  There were of course three occasions under consideration, namely February, August and September and it may well be that as far as Mr Greenwood was concerned he was making some allowance for one of those occasions and if so perhaps it was the August one but none of that in our judgment matters very much in the light of the overview of the case which management and thereafter the Employment Tribunal formed.

17.	The third point which Miss Craven sought to make in relation to unfair dismissal was in our judgment utterly unarguable.  It relates to the February warning.  She points out, no doubt correctly, that the evidence disclosed that the document in which the verbal warning was recorded had never been signed by the Appellant nor offered to him for signature and to that extent there was a procedural fault.  We are entirely prepared to accept that that was a procedural fault.  

18.	The question is what effect does it or might it have had on the totality of the decision that was reached by the Employment Tribunal.  It is abundantly clear from their decision that they had different versions of the February incident and its consequences before them.  There was an issue as between the Appellant on the one hand Mr Greenwood and Mr Longbone on the other hand as to whether there had ever been a verbal warning as a result of a disciplinary hearing on 7 February.

19.	The approach of the Employment Tribunal to that issue was to assess the witnesses and in paragraph 7 of the decision the Employment Tribunal explains with great care why it was that they were entirely satisfied that the accounts of Mr Greenwood and Mr Longbone were correct.  In our judgment the fact that there was a technical procedural error does not undermine the findings that were made about who was giving accurate evidence in relation to February and we fail to see how any arguable ground of appeal directed at issues of credibility as a whole can be forged out of that technical error.  

20.	Finally, we turn to the part of the case that was concerned with an allegation of disability discrimination.  Miss Craven observes that under section 4 of the Act it is not necessary to establish that disability is the only or even principal reason for any difference in treatment including dismissal.  Her submission is that slurred speech is now known to be an important symptom of the terminal illness from which the Appellant is suffering which is in terms a relevant disability.  Accordingly, she submits, the Employment Tribunal ought to have found that to the extent that the Appellant was dismissed for the manifestation of slurred speech he was dismissed for a reason related to his disability and to that extent there is a basis or at least an arguable basis of a discrimination claim.  

21.	In our judgment that argument is also bound to fail.  We say that because of the parts of the decision of the Employment Tribunal to which we have already referred.  The Appellant was not dismissed for having slurred speech.  He was being dismissed as a result of a range of indicia which convinced his employers reasonably that he was attending work on more than one occasion when intoxicated as a result of alcohol consumption.

22.	We are entirely satisfied that the last two pages of the decision of the Tribunal are a tenable analysis of the disability discrimination claim in the light of the evidence.  We do not find that there is any arguable error in relation to that issue and in all the circumstances that proposed ground of appeal along with the others to which we have referred in relation to unfair dismissal is in our judgment unarguable.  It follows from all we have said in a judgement that is somewhat longer than usually occurs on a preliminary hearing that, tragic though the circumstances of this case are, and sympathetic though we are to the plight of the Appellant, we do not think it would be an act of kindness to him or to anybody else to allow this appeal to proceed further.  Accordingly, it will be dismissed.