Appeal No.EAT/0408/01 AM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 November 2002

Before
THE HONOURABLE MR JUSTICE ELIAS
MS J DRAKE
MR P GAMMON

MISS A WILLIAMS	APPELLANT

Y K K (UK) LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised 17 June 2003

	APPEARANCES

For the Appellant	MR JOHN HORAN
(of Counsel)
Instructed by:
Messrs Russell Jones & Walker Solicitors
4th Floor
Brazennose House West
Brazennose Street
Manchester M2 5AZ	
For the Respondent	MR RICHARD BRADLEY
(of Counsel)
Instructed by:
Messrs Mace & Jones Solicitors
Drury House
19 Water Street
Liverpool L2 0RP	

THE HONOURABLE MR JUSTICE ELIAS

1	This is an appeal from the decision of the Employment Tribunal in Liverpool which held that the Appellant had not been unlawfully discriminated against for reasons relating to her disability.

2	The Respondent accepted that the Appellant had a condition (Otorrhoea) which causes her severe hearing difficulties and ear infections and as a consequence that she is a disabled person within the meaning of the Disability Discrimination Act 1995.  The issue before the Tribunal was whether she had been dismissed for a reason relating to that disability.

3	The basic facts of the case are recounted by the Tribunal as follows:

5	“Miss Williams commenced work with the Company on 7 February 2000, following interviews at which she had disclosed that she had had considerable periods of absence in her former employment, due to her hearing condition and ear infections.
6	There were further periods of absence from work after she had started with the Company but at all relevant times she was assured that these were not a problem.
7	There was a fundamental dispute between the parties as to whether a meeting had taken place on 5 April 2000 between Miss Williams and Mrs Porter at which certain criticisms were made of Miss Williams’ performance.
8	A meeting certainly did take place on 17 May at which criticisms were raised.  Miss Williams’ evidence in relation to that meeting was, however, that those complaints were not central or particularly important.  The evidence on behalf of the Company was otherwise.
9	A further meeting took place on 22 June.  Before the meeting, Miss Williams had informed Mrs Porter that she was going into hospital on 26 June.
10	Miss Williams was told that her performance was going to be reviewed at the meeting and a trade union representative was contacted to attend with her.
11	There was a detailed discussion at the meeting and various criticisms of her performance and personality and she was informed by Mr McKie that she was being dismissed within her probationary period.”

4	The Appellant claimed that her dismissal infringed section 4 of the Disability Discrimination Act 1995.  This was denied by the Respondent.  It accepted, however, that if the reason for the dismissal had been the Appellant’s absence from work and/or the fact that she would shortly be going into hospital then that clearly would be a reason relating to the disability and would amount to unlawful discrimination.  The Respondents asserted, however, that those absences were not the reason for her dismissal.  Indeed, it was submitted that the particular manager who dismissed (Mr McKie) was unaware of her absence record or of the fact that she was due to enter hospital on 26 June, shortly after her dismissal.

5	The Tribunal recognised that there were certain unsatisfactory features of the evidence given by the Respondents.  At paragraphs 14 and 15 of the Decision they say this:

14	“The Applicant was certainly entitled to point out that there were respects in which the evidence given on behalf of the Respondents was less than impressive.  For example, the witness statement of Mrs Porter included criticism allegedly made of Miss Williams at the meeting on 5 April which did not even appear in her note of that meeting.
15	Furthermore, both Mrs Porter and Mrs Woods gave evidence to the effect that they had not had a meeting with Mr McKie on 16 June (in advance of the final meeting on 22 June), whereas Mr McKie was adamant in his belief that such a meeting had taken place.”

6	Having referred to these matters they set out their conclusions in paragraphs 17 and 17 as follows:

16	“We were bound to remind ourselves, however, the precise scope of our enquiry.  What we were asking ourselves was simply this: what was the reason for the dismissal of Miss Williams?  That dismissal was carried out by Mr McKie.  We were satisfied that he was being truthful to us, that before the meeting on 22 June he had discussed with a number of managers the alleged shortcomings of Miss Williams and indeed that he was wholly unaware at the date of the meeting of her absence record (or the fact that on 26 June she would be entering hospital).  It is undoubtedly the case that criticisms of Miss Williams’ performance were aired at length at the meeting of 22 June.
17	In short, and despite a number of weaknesses in the evidence given on behalf of the Company, we were satisfied that Mr McKie was telling us the truth and that the reason he decided to terminate Miss Williams’ employment was her general performance in her job.  Nor were the alleged shortcomings ones that were in any way related to her hearing difficulties.  We were further satisfied that her absences from work were not in any way related to that decision.”

The Law

7	Section 4 (2) (d) of the Disability Discrimination Act 1995 provides as follows:

(2)	“It is unlawful for an employer to discriminate against a disabled person whom he employs - …
(d)	by dismissing him, or subjecting him to any other detriment.”

8	The meaning of discrimination is then found in section 5 (1) as follows:

(1)	“For the purposes of this Part, an employer discriminates against a disabled person if - 
(a)	for a reason which relates to the disables person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b)	he cannot show that the treatment in question is justified.”

9	Whether someone is dismissed for a reason which relates to his or her disability is simply a question of fact.  If authority is needed for this proposition, it is found in the decision of Clarke v TDG Limited t/a Novacold [1999] IRLR 31 (8), per Mummery LJ at paragraph 53.

10	In this case the Tribunal found that the reason for dismissal was performance.  It also found that the alleged shortcomings were in no way related to her disability.  The Appellant was not dismissed, as she alleged, because of absences from work.  On the face of it that is a finding of fact which determines the outcome of this claim, as the Tribunal held.

11	However, Mr Horan, for the Appellant, submits that that is not the end of the matter.  He says the Tribunal failed to make certain findings of fact which it was obliged to make before reaching its decision.  He relied upon the Court of Appeal decision in Anya v The University of Oxford [2001] ICR 847.
12	In that case, the Appellant was a Post Doctoral Research Assistant at the University of Oxford.  There were two equally qualified candidates – one white and one black – for a particular post.  They were interviewed by a panel of three persons, including Dr Anya’s supervisor.  The white candidate was selected.  Dr Anya appealed to the grievance panel.  It upheld the original decision but identified certain failures by the interview panel to comply with the University’s equal opportunities policy.  Dr Anya had contended that he had been discriminated against on grounds of his race, identifying what he believed to be acts of hostility demonstrated to him by his supervisor over a period of some two years.

13	The Tribunal, in its determination, recorded the evidence relating to these allegations but made no findings in respect of them.  The Court of Appeal, allowing an appeal from the Employment Appeal Tribunal, held that the Tribunal had erred in not making relevant factual findings.  The court took the view that it was essential in that case to make certain findings of fact in order properly to assess the evidence.

14	In the course of his judgment Sedley LJ said this (at paragraph 23)

“It is precisely because a witness who by himself comes across as essentially truthful may be shown by documentary evidence or by inconsistency to be less reliable than he seems that the totality of the evidence in a case like this has to be evaluated; and there was in this case no useful way of approaching the totality except through its parts.”

15	And then later, at paragraph 25 he said this:

“…it is the job of the Tribunal of first instance not simply to set out the relevant evidential issues, as this Industrial Tribunal conscientiously and lucidly did, but to follow them through to a reasoned conclusion except to the extent that they become otiose; and if they do become otiose, the Tribunal needs to say why.  But the single finding of the Industrial Tribunal in this case on Dr Robert’s honesty as a witness, while important, does not make the other issues otiose: on the contrary, it begs all the questions they pose.  Mr Underhill’s reliance on it as effectively dispositive overlooks what Robert Goff LJ said in Armagas Ltd v Mundogas SA [1985] I Lloyd’s Rep I, 57:

“It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence…reference to the objective facts and documents, to the witnesses’ motives and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”
The Industrial Tribunal had not given any ground, and none is evidence, for departing from this classic mode of reasoning in a case where every one of the ingredients mentioned by Robert Goff LJ was present.  The citation from Armagas Ltd v Mundogas SA in fact features in the transcript of this court’s decision in Heffer v Tiffin Green The Times, December 1998; Court of Appeal (Civil Division) Transcript No. 2084 of 1998, where Henry LJ concluded, relevantly to the present case, at p. 18:
“Nor were the crucial contemporary documents given proper, detailed and dispassionate consideration.  In my judgment they cannot be explained away…by an uncritical belief in Mr Heffer’s credibility.”
Credibility, in other words, is not necessarily the end of the road: a witness may be credible, honest and mistaken, and never more so than when his evidence concerns things of which he himself may not be conscious.”

16	As this passage indicates, factual findings can be relevant both to determine whether a particular witness is telling the truth or accurately recalling events.  But, perhaps more importantly in many discrimination contexts, it is necessary to make relevant factual findings in order to determine whether or not a truthful witness may indeed be unconsciously or inadvertently influenced by improper considerations of which he or she is not personally aware.

17	Mr Horan submits that the principles enunciated in Anya, in that case in the context of race discrimination, ought to apply equally to cases of disability discrimination.  There is the same risk that an employer may seek to conceal the real basis for his actions, or alternatively may be unconscientiously influenced by considerations relation to the disability of the employee.

18	We accept the same risks may, in certain contexts, arise and that the approach in disability cases ought to be as indicated by the court in Anya, albeit that we suspect that in practice there is less risk of unconscious or unintended prejudice motivating decisions in this area.  That is not to say, of course, that such cases may not arise.

19	The question, however, is: what are the material facts in respect of which findings need to be made?  Anya’s case does not say that a Tribunal has to resolve every matter of disputed fact.  In this case, Mr Horan submits that there were three areas of disputed fact which the Tribunal ought to have resolved in order properly to reach its decision:

(1)	The Respondent alleged that a meeting had taken place on 5 April during which various criticisms were made of the Applicant’s performance.  The Appellant contended the meeting had not in fact occurred.

(2)	The Respondent had submitted that there was a meeting on 17 May in which questions of the Appellant’s performance were central.  The Appellant said that this was not so and that those considerations had been peripheral to that meeting.

(3)	There was a conflict, not between the Appellant and any of the witnesses, but between Mr McKie on the one hand and Mrs Wood & Mrs Porter on the other, as to whether there had been a meeting on 16 June.  Mr McKie had submitted that such a meeting had taken place but the two women had denied it.

20	Was it necessary then, in accordance with the principles enunciated in Anya, for the Tribunal to make findings on each of these matters?  In determining that question it is necessary, in our opinion, to recognise that this case is materially different to Anya.

21	The Tribunal accepted Mr McKie’s evidence that he had not even been aware of the fact which was alleged to have tainted this decision.  That was not something about which he could have been mistaken.  He could not have forgotten that he was aware of these matters.

22	Accordingly, this is not a case where he could have been unconsciously influenced by the Appellant’s absences.  You cannot be influenced by a factor whether consciously or unconsciously if you are unaware of it.  So the first and fundamental question to this Tribunal was whether or not Mr McKie was telling the truth when he said that he was not aware of the Appellant’s absences or of her future hospital appointment.

23	We recognise that that is not necessarily, in all cases, the end of the matter, because someone who is unaware of factors which might demonstrate an improper discriminatory influence, may nevertheless be influenced by discriminatory considerations if he or she receives and acts on evidence which is itself tainted by discriminatory considerations.  For example, a manager who is not in the least influenced by racial considerations may, nonetheless, make a decision which is affected by such factors if he acts on the basis of a report which is made by another manager who is influenced by such considerations.  The decision in that case will be tainted.

24	We return to consider the potential relevance of that below.  But focusing first on the question of whether Mr McKie was telling the truth, it seems to us that the only finding of fact which conceivably had any bearing on that issue was the dispute between him and Mrs Porter & Mrs Woods as to whether there had been a meeting on 16 June.  It is true the Tribunal did not make a clear finding in relation to this matter.  They were, however, satisfied that he had discussed with a number of managers the shortcomings of Miss Williams before the meeting on 22 June.

25	In any event, even if the Tribunal had resolved that particular matter, it would be far from demonstrating that they should disbelieve the evidence of Mr McKie, even if they had concluded that the meeting had not taken place.  They could, for example, have felt that he was simply mistaken about that fact or wrongly confused two different meetings or something of that nature.

26	There are all sorts of possible explanations as to why he may be telling the truth on the principal issue, as to whether or not he knew of the absences, but may be mistaken in relation to that meeting.

27	We accept and recognise that it would in the circumstances have been desirable for the Employment Tribunal to have made a finding as to whether or not a meeting took place on 16 June.  We do not, however, consider their failure to do so has vitiated the very clear conclusion they reached, that Mr McKie was being truthful in relation to this essential question about his knowledge of the absences of the Appellant.

28	The Tribunal mentioned on more than one occasion that there were weaknesses in the evidence given on behalf of the Company and they plainly had those weaknesses very much in mind but, notwithstanding that, they reached the very clear conclusion that Mr McKie was telling the truth.  This is very different, it seems to us, from the Anya case, where there were many factual matters which were left in the air and which might have disclosed unconscious prejudice.

29	In these circumstances, since Mr McKie did not know the factors which are relied upon as the basis of a disability claim, he could not have been dismissing for reasons relating to disability.
30	That leaves the question of tainting.  This was the one area that caused us some concern.  There clearly were communications between Mrs Woods & Mr Porter on the one hand and Mr McKie on the other about the Appellant’s performance.  Might the two women have been influenced by the fact of the Appellant’s absences or her future hospital appointment?  If so, then they would have been potentially influenced by a factor which was referable to her disability.

31	We accept that the Tribunal could not properly have concluded that they were not so influenced without resolving the conflicts of evidence between them and the Appellant, in relation to the two issues about the alleged meeting on 5 April and the scope of the meeting on 17 May.  The Tribunal plainly made no findings in relation to either of those matters.

32	However, after careful consideration it seems to us that the Tribunal’s decision, fairly read, indicates that Mr McKie came to his own independent decision about the Appellant’s performance (see paragraphs 10-11 of the decision).  He did so after an interview in which the question of the Appellant’s performance was directly raised with her and, as the Tribunal noted, at length.

33	In the circumstances, we do not think that there is evidence to suggest that he acted on the basis of the tainted evidence (if the evidence was in fact tainted) of Mrs Porter or Mrs Woods.  Moreover, the case does not appear to have been run on the basis that he was influenced by their analysis, but rather on the ground that he directly made his decision to dismiss because of her past absences or future hospital appointment.

34	Accordingly, we think the Tribunal was entitled to reach the decision it did.  It would only have been necessary to resolve the conflicts of evidence between the Appellant and Mrs Woods on the one hand and Mrs Woods & Mrs Porter on the other.  If the case had been, or the evidence had disclosed, a real risk that there had been tainting of the decision of Mr McKie it would have been preferable for the Tribunal to have indicated in terms that they were satisfied that there was no such tainting.  But, their failure to do so it explicable by the fact that it does not seem to have been the way in which the case was put.

35	Accordingly, for these reasons, this appeal fails.