Appeal No. EAT/1429/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 March 2002

Before
HIS HONOUR JUDGE McMULLEN QC
MS S R CORBY
MISS D WHITTINGHAM

ARCADIA GROUP PLC	APPELLANT

MS J L COWAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR T LINDEN
(Of Counsel)
Instructed by:
Messrs Beachcroft Wansbroughs
Solicitors
7 Park Square East
Leeds
LS1 2LW	

JUDGE McMULLEN QC

1.	This is an appeal by the Respondent in the Employment Tribunal proceedings which were conducted at Sheffield before a Tribunal chaired by Mr Little in which the Decision and Extended Reasons were sent to the parties on 8 October 2001.  The claims made by the Applicant were of unfair dismissal and unlawful disability discrimination.  The finding by the Tribunal was that she succeeded on unfair dismissal and unlawful disability discrimination in respect of her dismissal but not in respect of a subsidiary claim relating to an alleged failure to make reasonable adjustments. In respect of the unfair dismissal finding the Tribunal held that the Applicant contributed to her dismissal to the extent of 25%. It gave its decision at the conclusion of the 2 day hearing; the question of remedy was dealt with by an adjournment because of lack of time.

2.	The Applicant had unbroken service with the Respondent, a major chain of fashion retailers, for 7 years prior to her dismissal on 5 December 2000 and had previous service with the Respondent from 1985.  She was in a position of responsibility within the Evans Store in the shopping centre of Sheffield.  Also within the Respondent’s group is the Dorothy Perkins chain.

3.	The Respondent has detailed procedures for the purchase, with encouragement, of goods in the store for wearing by store staff for obvious commercial reasons.  The procedure allows for a discount.  On Thursday 23 November 2000 the Applicant took products without going through the proper procedure and did so again on 24 and 25 November.  She was taxed on leaving on the Saturday night, 25th and was found to have two tops in a Dorothy Perkins bag.  She made a purchase from Dorothy Perkins quite properly during the course of that period.  The issue for the employer therefore was whether there had been deliberate flouting of the procedures.  In the course of a disciplinary procedure the Applicant advanced in an inchoate way the defence of forgetfulness.  This arose because the Applicant has MS and is therefore disabled within the meaning of the DDA. 

4.	Notwithstanding the Applicant’s defence, the Respondent dismissed her on 5 December 2000.  The Applicant then appealed raising more concretely that she was ill and that she had cognitive difficulties.  As a result, the relevant manager took advice from its occupational health department on whether forgetfulness was a feature of MS.  In the light of the material given, she rejected the appeal.  This material was not disclosed to the Applicant.

5.	In an appeal by the Respondent against the decision of the Tribunal Mr Linden has greatly assisted us with a skeleton argument which succinctly makes points which we hold are reasonably arguable.  We did not need to hear from him in relation to the challenge to the disability discrimination finding.  Since the date of the Employment Tribunal’s decision, it has been held that post termination acts of unlawfulness are not actionable - see Jones v 3M Healthcare Ltd (EAT/1099/00) a decision upheld by the Court of Appeal whose judgment is not yet available.  That being so, the other aspects of the attack on the decision of unlawful discrimination appear to us to be arguable: that is failure to identify the nature of the treatment, lack of comparable consistent treatment and justification.  Those matters are briefly set out in Mr Linden’s Skeleton Argument at paragraphs 6 – 8 which reflect the Notice of Appeal.

6.	What is left is the unfair dismissal claim.  It is submitted that the principal argument of the employer in this case is not alluded to by the Employment Tribunal. The two aspects of the case relied on by the Respondent are not the subject of a finding.  These concern the words said to be used by the Applicant on being apprehended, that she would indeed pay in due course and that she had gone through a proper procedure at Dorothy Perkins.  The latter point is mentioned by the Tribunal but the other is not and these are as Mr Linden puts it not simply details of the overall case but are essential.  We consider that that argument has force.

7.	The second broad proposition advanced is that the Tribunal substituted its view for the view of the employer.  It will be remembered that the competition in this case was between the reason for the Applicant’s conduct being forgetfulness on the one hand (her case) and deliberate flouting of the rules (the employer’s case) on the other.  In order to determine this, the Tribunal paid very serious attention and preferred the evidence of a specialist nurse, Mrs Watts, recording in detail her evidence.  This was not of course before the dismissing manager. Even if this material were to be excluded, and the focus trained solely on what a reasonable employer would have done, we cannot be sure that the decision of the Tribunal was plainly and arguably right.  Certainly Mrs Watts gives an indication of what an employer might have found out, or what a reasonable employer might have allowed the Applicant to adduce before her dismissal. But it does appear to us that the Tribunal has gone beyond that proper examination and has accepted, as between the two competing arguments, the evidence of Mrs Watts. This in our view would arguably be wrong and is a matter which can go forward as identified in Mr Linden’s Skeleton Argument in paragraph 4.

8.	The third point is about perversity.  The principal argument is that the Tribunal’s reducing the compensation by 25% appears illogical if the Tribunal accepted in full the Applicant’s case that she was forgetful on account of her MS.  The jurisprudence makes clear that compensation is to be reduced where there is blame and, says Mr Linden, that blame would not be attributable to a person with MS and the Tribunal has acted perversely.  That simple syllogism is one which has force and we are prepared to allow that perversity argument to be advanced.  We will hear argument about whether any further material needs to be adduced.  We note that notes of evidence are available having been ordered by the President at an earlier stage.  Estimated time 1 day.   Skeleton Arguments 14 days before the hearing.