Appeal No.EAT/1113/02 TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 December 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR D LEWIS

MR B J COLLINS	APPLICANT

KNIGHTSTONE HOUSING ASSOCIATION LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Applicant	MR B J COLLINS
(the Applicant in Person)	

HIS HONOUR JUDGE PETER CLARK

1	This is an appeal by Mr Collins, the Applicant before the Southampton Employment Tribunal, under the chairmanship of Mr D N Cowling, against parts of that Tribunal’s decision, promulgated with Extended Reasons on 24 June 2002, in which the Tribunal upheld his complaint of unfair dismissal on procedural grounds whilst dismissing his complaints of disability discrimination and breach of contract brought against his former employer, Knightstone Housing Association Ltd.

2	The background is as follows.  The Applicant commenced employment with the Respondent as a Clerk of Works in January 1990.  On 1 May 1997 he suffered an accident at work involving injury to his hand.  Surgery was performed on 9 January 1998 and on 6 April 1998 he returned to work.  A second operation was performed on 6 May 1999.  He never returned thereafter to work with the Respondent.  From October 1999 he suffered from depression.  He was, it was common ground between the parties, disabled within the meaning of section 1 of the Disability Discrimination Act 1995.

3	His contractual sick pay was due to end in July 1999, however personnel arranged for it to continue thereafter.

4	Steps were taken to obtain benefits under the Respondent’s Permanent Health Insurance (PHI) scheme, a non-contractual arrangement so far as the Applicant was concerned.  An application form was completed and signed by Miss Squance of personnel on 14 March 2000.  In that document, in answer to question number 21 – will the employee’s job still be available once his disability has ceased? – she ringed the ‘yes’ box.  The insurers, Zurich, finally accepted the claim in December 2000, backdated to 4 November 1999.
5	By the end of February 2000 the Respondent had formulated proposals to reduce the number of Clerks of Works employed from 7 to 3.  During a home visit on 28 February 2000 Mrs Squance gained the firm impression, so the Tribunal found, that the Applicant had chosen to take redundancy and had no wish to be considered for one of the three remaining posts.

6	The Applicant continued to receive full pay whilst off sick.  On 13 March 2001 Mrs Squance saw the Applicant at home again.  They discussed the PHI claim and how the Applicant’s redundancy might affect the insurer’s definition of disability.  He was shown a schedule calculating his redundancy payment.  In addition he would be entitled to 11 weeks notice pay.  Mrs Squance still believed that the Applicant was willing to be made redundant.

7	On 20 March 2001 Mrs Squance wrote to the Applicant setting out the amount of PHI benefit payable by the insurers; giving notice of redundancy dismissal to take effect on 31 March 2001, with pay in lieu, and enclosing a copy letter from the insurers dated 24 January 2001, stating that on his removal from the Respondent’s payroll the definition of disability would change so that there was no guarantee benefits would continue as before.

8	On 22 March 2001 the Applicant replied, saying that there had been a misunderstanding.  He said that he had not indicated a wish to be made redundant.  Mrs Squance took issue with the suggestion that she had misunderstood his intentions.

9	On these facts, preferring the Respondent’s version of events to that advanced by the Applicant, the Employment Tribunal reached the following conclusions on the issues raised:

(1)	The reason for dismissal was redundancy, not capability as the Applicant had contended.  The dismissal was unfair due to lack of proper consultation.
(2)	The Respondent was not in breach of contract.  The PHI cover arranged by the Respondent with the insurers did not form part of the terms and conditions of the Applicant’s contract of employment.

(3)	The reason for the Applicant’s dismissal was solely redundancy.  It was not related o his disability.  That disability, they found, was irrelevant to the Respondent’s decision to dismiss him.

(4)	The Respondent made all reasonable adjustments required by section 6 of the Disability Discrimination Act 1995.

10	In this appeal Mr Collins takes essentially two points.  First he submits that the finding that the version of events given by Mrs Squance as to what was said at the meeting of 28 February 2000 was perverse, in light of the answer which she gave to question 21 in the insurer’s application form completed on 14 March 2000.

11	We are not a Tribunal of fact.  Our jurisdiction is limited to correcting errors of law.  We see the forensic point which is taken by Mr Collins in this appeal; that the unequivocal answer to question 21 in the insurance application form is arguably inconsistent with the version of the conversation given by Mrs Squance following the meeting on 28 February 2000.

12	However, this evidence was before the Tribunal.  The answer in the insurance application form in our view is not determinative of the factual issue between Mrs Squance and the Applicant as to what precisely was said on 28 February and in our judgment the argument that the Tribunal’s finding of fact on this matter is perverse is not one which has any real or reasonable prospect of success at a full appeal hearing.
13	The second point is characterised as one of estoppel, namely that the representation made by the Respondent to Zurich in the insurance application form prevents the Respondent from now advancing the case that the Applicant volunteered for redundancy.  We are not persuaded that estoppel as a matter of law arises.  We think the point is really an extension of the first ground of appeal.

14	The appeal is designed to ultimately undermine the Tribunal’s finding that dismissal was by reason of redundancy, as opposed to capability; the Appellant’s objective being to secure an order for reinstatement or re-engagement.  Looked at in this way the question for us is whether the Tribunal were entitled to find, on the facts as found, that the reason or principal reason for dismissal in this case was redundancy.  We are quite satisfied that they were and consequently we must dismiss this appeal at this Preliminary Hearing stage.