Appeal No.	 EAT/243/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR R SANDERSON OBE
MR J C SHRIGLEY

DELTRON COMPONENTS LTD	APPELLANT

MR J J PARSONS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR JONATHAN SWIFT
(of Counsel)
Instructed by:
Messrs Gouldens
Solicitors
10 Old Bailey
London EC4M 7NG	

MR JUSTICE LINDSAY (PRESIDENT)

1	We have before us, as a preliminary hearing, the appeal of Deltron Components Ltd, in the matter Mr J J Parsons v Deltron Components Ltd.  The Appellant, Deltron, has today appeared by Mr Swift. 

2	The history of the matter is that on 7 December 1999 Mr Parsons presented an IT1 for unfair dismissal and for disability discrimination.  He had been employed from November 1992 to October 1999.  On 22 December 1999, Deltron, the company, put in an IT3; it alleged that he had been in a unique position, that the unique position had become redundant and that there was therefore no pool from which to select; he was the only fish in the pool.

3	So far as concerned disability discrimination, anyone, they said, looking at his position, would have had to be made redundant and that disability, to that extent, did not come into play.  It was later formally conceded that Mr Parsons was disabled for the purposes of the Disability Discrimination Act.  He had been registered blind in 1993 with a progressive form of impairment.  

4	The matter went forward to a hearing at Hull.  There were six days of hearing between July 2000 and December 2000 and on 5 January of this year the Decision was sent to the parties.  It was the Decision of the Tribunal under the Chairmanship of Mr D J Latham and it was: 
“The unanimous decision of the Employment Tribunal is:-
1.	That the applicant’s claim of unfair dismissal succeeds.
2.	The applicant’s claims under the provisions of the Disability Discrimination 
Act 1995 succeed.”

5	On 16 February a Notice of Appeal was received from Deltron.  On 12 June of this year solicitors for Deltron sought a review, also asking for the Employment Tribunal to extend time in which to ask for a review.  On 21 June, the application for a review was refused.  On 9 July Deltron sent to the Employment Appeal Tribunal an amended Notice of Appeal asking that leave to amend to that form should be considered, and, they hoped, granted at today’s hearing.  

6	We indicated at the beginning of the hearing here (having briefly heard, on behalf of Mr Parsons, that there was an objection to the amendment) that we saw no reason why leave to amend should not be granted.  It is not a case where inadequate time had been afforded to the Respondent’s side to consider the amendment.  We have proceeded on the footing that the Notice of Appeal in its amended form is what is before us.  

7	The amended Notice of Appeal raises three points.  In their paragraph 25, the Employment Tribunal, turning to the need on behalf of the company to explain why they had acted as they did, said:
“There is no adequate or satisfactory explanation, particularly from Mr Buckley, as to why the Respondents dealt with the redundancy situation the way he did; why they did not properly consider the reorganisation as they should have done; why they did not identify the appropriate pool; why they did not properly consider the applicant’s proposal; and why they created what in effect could be described as a sham redundancy situation in the second redundancy situation that ultimately resulted in a position being offered to the applicant.  The explanation that he may or may not have been acting on advice from a professional adviser is not, in the tribunal’s view, a proper and appropriate explanation or defence to such matters as such advice if given in the first place and if taken must be adopted by the respondents as being their position.  That was a contention that was accepted by both parties before the tribunal at the hearing.”

The argument in this first point in the Notice of Appeal is that it is arguably wrong in law to treat the fact that the employer acted on the basis of advice received as irrelevant.  However, the Tribunal did not say that it was irrelevant.  What they said was that it was not a proper and appropriate explanation.  In our view, they were right to take that view.  Even if it had not been accepted below that it was proper to treat the advised position as the employer’s position, there are a number of factors that need to be mentioned.  

8	It was not clear that Mr Buckley was held to have been acting on advice.  The Employment Tribunal says:
“ he may or may not have been acting on advice”
 and a little later they refer to advice 
“ if given”
 and a little later:
“if taken”
So there was no finding that he was actually acting on advice.  

9	Secondly, one would need to know what information and instructions were given to the adviser and what advice he then gave before being able to exonerate the employer or to understand more fully his actions, even if, as we doubt, one could ever exonerate an employer on only such a ground.  Moreover, certainly where the adviser was a solicitor - we are not suggesting that was necessarily the case here - there would be many cases where the communications between the client and the solicitor would be privileged, and so in most cases or certainly many of that kind, a fuller investigation would be quite impossible or would lead, all too readily, to a trial within a trial to find out precisely what advice was given and what advice was received.  One can easily imagine the added costs and added time that would be taken if such a view was permitted.  We see no arguable error of law in the way in which the Tribunal treated the explanation, or possible explanation, that they referred to in those closing words from their paragraph 25.  We see no arguable error of law, in other words, in this first ground. 

10	The second ground in the amended Notice of Appeal is justification within, it would seem, Section 5(1)(b) of the Disability Discrimination Act.  The Tribunal expressly say:
“No argument was raised on behalf of the Respondents that such less favourable treatment was justified.”

And earlier, they had said:
“No justification argument was put forward in this case to justify the treatment which the tribunal has found the applicant was subjected to.”

It may be, as Mr Swift argues, that that second reference to no justification argument being put forward was relating more to an aspect of the disability discrimination case, namely that Mr Buckley, the Manager and Mr Davis the Managing Director, had been abusive in disability terms.  But in fact, the language used does say:
“ to justify the treatment which the tribunal has found the applicant was subjected to”.

So it may be that that reference goes a little further than Mr Swift would have it, but certainly, the second heading that we quote first, that:
“No argument was raised on behalf of the Respondents that such less favourable treatment was justified.”
appears to be a reference to the totality of the case.  

11	Mr Swift, who did not appear below, says that the issue was raised in a Skeleton Argument but, of course, that does not necessarily mean that it was pursued at the hearing.  We have no reason to believe that the Tribunal’s conclusion that there was no argument on justification was not a correct view.  From a practical point of view, one might add, that given the catalogue of things that needed justification, a most compelling case would need to have been made, for example, that there was extreme urgency and that that explained a total absence of consultation, or some argument such as that.  But there is no suggestion that any such case could have been made, or was made, and we see no arguable error of law in this second part of the case.  

12	The third ground in the Notice of Appeal is inference.  The argument here is that either insufficient facts were found to ground the inference or that the facts which the Tribunal relied upon to draw the inference are not sufficiently clearly identified; the reason for the conclusion is not given.  The Tribunal says in their paragraph 26:
“26  Given those circumstances therefore”
and that is a reference to matters that have been explained earlier,
“and given the failure of the respondents to satisfactorily or adequately provide explanation, it is open to the tribunal to raise an inference that the reason that the applicant was so selected for redundancy has, as one of its reasons, if not its principal reason, the less favourable treatment arising as a result of his disability.  On the facts and given the circumstances the tribunal is satisfied that the applicant’s disability was a factor and therefore resulted in less favourable treatment of the applicant in those circumstances.  Therefore, in that regard his claim under this aspect must also succeed.”

It is well recognised that the facts giving rise to an inference or facts relied upon in the drawing of an inference by a Tribunal have to be given, and Mr Swift has referred us to Marks & Spencer PLC -v- Martins  [1998] ICR 1005 in the Court of Appeal, and Chapman -v- Simon [1994] IRLR 124 also in the Court of Appeal, and to the familiar passages in those authorities respectively in Chapman -v- Simon at paragraph 43 and in Marks & Spencer at page 1011 D - G.  But this is not a case where there is a want of fact which could support a conclusion of the kind which the Tribunal arrived at.  

13	There are findings of fact here; there is a conceded total lack of consultation in the course of the redundancy process and Mr Buckley, the Manager, had to change his evidence as to consultation, upon being cross-examined.  Mr Davis, the Managing Director found the company’s harassment policy to be something of an irritant.  Mr Davis was abusive of Mr Parsons’ disability and Mr Buckley followed him in that.  No attempt was made by the company to evaluate the true diminution in work or the changed personnel needs consequent upon the reorganisation which was described by the Tribunal.  

14	Mr Parsons, charged with the task of drawing up an evaluation came up with three possibilities, two of which were rejected on inappropriate grounds, indeed, no adequate consideration was given to the probabilities at all.  No personnel reorganisation was considered other than one making Mr Parsons redundant.  The employer pretended to the use of a proper redundancy process and said that it had applied appropriate criteria, then it later had to concede that that was totally untrue, and the employer came up with no adequate or satisfactory explanation of its conduct.  

15	We are not able to hold that, against a background of that battery of held facts, that the Tribunal could not have inferred as they did, nor, indeed, that that was not the basis to which they were referring when they say:
 “given those circumstances therefore” 
and a little later:
 “on the facts and given the circumstances .”
They plainly were referring back to the totality of the found evidence, balancing those which were in favour of inference and those which were against, and, as one might have seen from the catalogue of those which were against, we conclude that the inference drawn was one which was open to them.  

16	Mr Swift describes this as a “hunch” case, using the expression referred to by Lord Justice Peter Gibson in Chapman v Simon.  We would respectfully disagree; it is a carefully and well reasoned judgment spread over some eighteen or so pages of typing and they give the reasons for the conclusions at which they arrived.  Indeed, if an inference could not be drawn on the facts of this case, one wonders whether an inference could ever be drawn.  Mr Swift, relying on Marks & Spencer and Chapman v Simon says that here the Appellant is left not knowing why it lost.  In our view it is quite plain why it has lost; the facts found against it justified an inference and that inference was drawn by the Tribunal.  

17	We have seen no arguable error of law in this third part of the amended Notice of Appeal and, having therefore dealt with all parts of the amended Notice of Appeal, we find no arguable error of law and so we dismiss the case, even at this preliminary stage.