Appeal No.UKEAT/0682/03/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	      On 24 November 2003
Judgment delivered on 30 January 2004 

Before
HIS HONOUR JUDGE RICHARDSON
MR A HARRIS
MR F MOTTURE

MISS SINEAD LUCEY	APPELLANT

THE GOVERNORS OF HOLY CROSS
CATHOLIC SCHOOL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS A PROOPS
(of Counsel)
Instructed by:
Messrs Reynolds Porter Chamberlain
Chichester House
278/282 High Holborn
London WC1V 7HA	
For the Respondent	MR A McNAMARA
(of Counsel)
Instructed by:
Mr G Russell
Nottinghamshire County Council
Legal Services
County Hall
West Bridgford
Nottingham NG2 7QP	

HIS HONOUR JUDGE RICHARDSON

1	This is a Decision of an Employment Tribunal held in Nottingham, for which Extended Reasons were entered in the register on 7 July 2003.  By a majority the Employment Tribunal dismissed complaints of unfair dismissal and disability discrimination which Miss Sinead Lucey had made against her former employers, The Governors of the Holy Cross Catholic School (“the school”).  Miss Lucey appeals against the dismissal of those complaints.  The Employment Tribunal upheld a third complaint by her that the school unreasonably failed to give her written reasons for her dismissal.  There is no appeal by the school against that finding.  

The factual background
2	The school is a small voluntary aided school with approximately one hundred pupils and a teaching staff of less than six.  Its Head Teacher was Mrs Snowdon.  

3	Miss Lucey is a teacher.  She graduated with a B Ed Degree in July 1999.  With effect from 1 September 2000 she was employed by the school on a temporary fixed-term contract expiring on 31 August 2001.  She taught at Key Stage 1.  

4	Miss Lucey suffered from cystic fibrosis.  It was her case before the Employment Tribunal that by reason of her cystic fibrosis, she was a disabled person as defined by section 1 of the Disability Discrimination Act 1995.  The Employment Tribunal Decision assumes, without expressly finding, that this was so.  The contrary does not seem to have been argued.  Miss Lucey had not so described herself when applying for her job at the school.  She had answered a question on the application form to the effect that she did not have a disability.  

5	The school had appointed Miss Lucey and another teacher, who taught Key Stage 2, on fixed-term temporary contracts because of financial problems.  But Mrs Snowdon wished to create permanent appointments.  The school’s financial position having improved, it was decided at a Governors’ meeting on 7 November 2000 that permanent posts would be created in lieu of the fixed-term appointments.  The minute of that meeting recorded that the posts had to be advertised in April, and that one would carry a responsibility point.  The minute does not say which.

6	Shortly after that meeting, Mrs Snowdon learned for the first time that Miss Lucey suffered from cystic fibrosis, when Miss Lucey asked her for a period of absence.  The Tribunal records that Mrs Snowdon was “concerned” to find that Miss Lucey had cystic fibrosis, when she answered her application form to the effect that she had no disability.  The Tribunal does not record the length of the absence.  It was common ground that Miss Lucey was absent for two weeks.

7	In the spring of 2001, the two permanent posts were advertised.  The Tribunal found that it was necessary to advertise widely to obtain a proper spread of candidates.  The advertisement made it clear that the Key Stage 1 job carried the responsibility point.  Miss Lucey applied for the Key Stage 1 job.  In April 2001 she also began to apply elsewhere.  

8	During the Easter holidays Miss Lucey again became ill.  A line was put into her arm, presumably for an intravenous antibiotic.  She came back to school with the line in her arm and worked on.  However, at the end of April 2001 she went into hospital for a quite different reason.  She was diagnosed as having diabetes.  She had lost weight.  She had low blood sugar and blurred vision, such that she was struggling to see properly.  It seems to be common ground that the school was not told the diagnosis of diabetes at this time.  The Originating Application says the school was told in July 2001.  The school’s Notice of Appearance says it was not told.

9	At all events, Miss Lucey had already returned to work by 14 May 2001.  This was the day of the interviews for the Key Stage 1 job.  She and one other were interviewed.  The interview panel consisted of Mrs Snowdon, Father O’Dowd, then the Chairman of the Governors, and Mrs Williamson, another Governor.  The other candidate was successful.  So Miss Lucey left the school at the end of the summer term.  She found another job starting in September.

10	The school did not give Miss Lucey any written reasons for refusing to renew her contract.  It did not offer her a hearing of any kind, or any opportunity to appeal.  However in November 2001 she asked for reasons.  Mrs Snowdon replied, but the Tribunal records that her letter “did not set out the reasons in any conventional sense”.  As we have said, there is no appeal against that part of the Tribunal’s Decision.  We have not seen the letter.

The School Standards and Framework Act 1998
11	In the year 2001 - 2002 staffing at a voluntary aided school was regulated by section 55 of the The School Standards and Framework Act 1998 and Schedule 17 to that Act.  

12	Schedule 17 set out detailed provisions relating to staffing.  The appointment of teachers is dealt with by paragraphs 10 - 19 inclusive.  Where there is a vacancy in any teaching post, other than a temporary one, the Governing Body must determine a specification for the post in consultation with the Head Teacher, and must send a copy of the specification to the Local Education Authority: paragraph 12.  By paragraph 14(1):

“14. (1) The governing body may advertise the vacancy at any time after they have sent a copy of the specification for the post to the local education authority in accordance with paragraph 12, and shall do so unless they appoint to the post either- 
 	(a) a person nominated by the local education authority under paragraph 13, or
	(b) a person who is already employed to work at the school.”

13	Paragraph 24 of Schedule 17 dealt with the Governing Body’s duty to allow representations and an opportunity to appeal before putting into effect a decision that a person employed to work at the school should not have his contract of employment renewed.  
“(1) Before making a decision that a person employed to work at the school should have his contract of employment with the governing body terminated or should not have that contract renewed, the governing body shall- 
(a) make arrangements for giving that person an opportunity of making representations as to the action they propose to take (including, if he so wishes, oral representations to such person or persons as the governing body may appoint for the purpose), and
 (b) have regard to any representations made by him.
(2) The governing body shall also make arrangements for giving any person in respect of whom they have made such a decision an opportunity of appealing against the decision before they give effect to it.
  	 …..
“(4) Nothing in this paragraph shall be read as referring to a person who- 
 (a) is due to cease to work at the school by reason of the termination of his contract of employment by effluxion of time; and
 (b) has not been continuously employed at the school for a period of two years or more (within the meaning of the Employment Rights Act 1996).”

14	It will immediately be apparent that Miss Lucey was a person falling within the description set out in paragraph 24(4).  The Governing Body therefore did not have in her case the obligations set out in paragraph 24(1) and 24(2).  However, as we shall see, it was conceded before the Tribunal that paragraph 24(2) applied in her case.  This concession was, in our view, simply wrong as a matter of law.  We shall return to this issue below.  

The issues before the Tribunal
15	It is important to spell out the issues which the Tribunal had to decide in respect of unfair dismissal and disability discrimination.  

16	As to unfair dismissal, it was common ground that the termination of her one year contract without renewal amounted to a dismissal: section 95(1)(b) of the Employment Rights Act 1996.  So it was for the school to establish the reason for dismissal, and that it fell within section 98(2) or was some other reason of a kind such as to justify the dismissal of an employee in her position: section 98(1).  If such a reason was established, the Employment Tribunal then had to decide whether, having regard to that reason, the school acted reasonably or unreasonably in the circumstances in treating it as a sufficient reason for dismissal: section 98(4).  That question it had to determine in accordance with equity and the substantial merits of the case.  

17	As to disability discrimination, the Tribunal had to decide whether the school had unlawfully discriminated against Miss Lucey in contravention of section 94 of the Disability Discrimination Act 1995.  As we have said, it seems to have been conceded that Miss Lucey’s Cystic Fibrosis constituted a disability.  The Employment Tribunal record Mr Stevenson, the representative who appeared for Miss Lucey, as saying he did not seek to rely upon a failure to appoint to a permanent post.  The Employment Tribunal record that the argument and issues were confined to the contention that Miss Lucey was dismissed for a reason which related to her disability.  In this connection two points should be noted:

18	Firstly, Miss Lucey was not “dismissed” in the conventional sense of the word, though she was dismissed as that expression is defined for the purpose of Part 10 of the Employment Rights Act 1996.  We think it is clear that the Employment Tribunal and the parties before the Tribunal must have treated the concept of dismissal for the purposes of section 4 of the 1995 Act as if it were the same as under Part 10 of the 1996 Act.  In other words, the case put on Miss Lucey’s behalf was that the school discriminated against her by not renewing her one year fixed-term contract.  The argument was that the school failed to renew that contract for a reason which related to her disability whereas they would not have done the same in the case of others who did not share her disability: see section 5(1)(a) of the 1995 Act.  

19	Secondly, it is clear from the papers we have seen and from the argument of Mr Stevenson which the Tribunal records, that there was a root and branch attack on the school’s failure to retain Miss Lucey.  It was said, indeed the member of the Tribunal who was in the minority accepted, that the whole process of advertisement, allocation of additional management responsibility and interview was deliberately weighted against Miss Lucey for a reason which related to her disability.  

20	The following points were among those relied on: 
(a) The decision to advertise the post at all.  
(b) The decision to add to the Key Stage 1 post a point for management responsibility, would make it significantly more difficult for Miss Lucey, a teacher with one year of experience, to apply successfully for the job.  
(c) An alleged conversation with Mr Harrison, who was not only school caretaker, but also a governor, and who, according to Miss Lucey, approached in about early May 2001 and told her that Mrs Snowdon had said that under no circumstances would she be considered for the job because of her illness.  Miss Lucey said she broke down crying because of that incident.  
(d) The handling of the interview itself.  Miss Lucey gave evidence that at the interview Father O’Dowd, the Chairman of the Governors, suggested to her that she might resume her modelling career.  
(e) The asking of questions about absence at the interview.
(f) The scoring of questions at the interview, which was said to be unsatisfactory.
(g) An alleged conversation between Mrs Lucey, Miss Lucey’s mother, following the interview, at which Father O’Dowd is alleged to have said to her that Miss Lucey would not be considered for a permanent position at the school due to the likelihood of her being ill in future.  
(h) The fact that Father O’Dowd said that he would have to refer to her cystic fibrosis in a reference.
(i) The fact that she was asked to resign, even though no resignation was necessary to end her employment.
(j) The fact that there was no provision for an appeal.
(k) The fact that no written reasons were given for dismissal.

The Decision
21	The Tribunal’s Decision on the two issues with which we are concerned is by a majority.  The majority and the minority member reached highly divergent conclusions of fact.  The Tribunal Decision clearly sets out where the majority and minority member differ.  

22	The Decision sets out, between paragraphs 10 and 23, the Tribunal’s conclusions of fact.  In particular, in paragraph 23, the Decision sets out the different conclusions of the majority and the minority member on seven questions of fact where they differed.  

23	The Decision then sets out, in paragraphs 24 to 32, principles of law which the Tribunal sought to apply.  The Tribunal refers to paragraph 24(2) of Schedule 17, but makes no reference either to paragraph 24(1) or to paragraph 24(4).  The Decision continues by setting out in paragraphs 33 to 36 the submissions of parties.

24	On the question of unfair dismissal.  The Tribunal unanimously found that the reason was “some other substantial reason” - a management decision to move from fixed temporary position to a permanent position . The matter is also dealt with, in somewhat different terms, in a summary paragraph at the very beginning of the Decision.  There it is said:
“The reason for the dismissal of the applicant was the non-renewal of her fixed term contract following a decision by the respondent to appoint a permanent position different from the temporary position which the applicant held.”

25	The Tribunal then stated the conclusion of the majority, that:
“the absence of an appeal process whilst unfortunate was not of itself sufficient to render the dismissal unfair.”

26	The majority view was expressed as being:
“any appeal against dismissal would have been an exercise written in water, so to speak, given that it would have occurred when the applicant had already obtained other employment.  It is inconceivable that an appeal hearing would have resulted in a successful outcome for the applicant.”

27	The member who was in the minority considered that the absence of the appeal procedure was sufficient to make the dismissal unfair.  She would not rule out the possibility that an appeal hearing might have gone favourably for Miss Lucey.  

28	On the question of disability discrimination the majority accepted the case put on behalf of the school.  They were satisfied that the decision to remove Miss Lucey’s post was taken by Mrs Snowdon and others at a time when she and they were unaware of Miss Lucey’s disability.  They found no causal link between the expiry of the temporary contract, which they described as the “deemed dismissal”, and her medical condition.  They found Mrs Snowdon to be a responsible and mature Head Teacher.  They concluded:
“….. a perfectly reasonable management decision was taken to determine the fixed term contracts and replace them with permanent contracts with one of those contracts assuming a management point responsibility.  It was that decision which was bound to lead to the dismissal of the applicant if she were not seen as the better candidate for the position for which she applied.  It is, in one sense, as simple as that.”

29	The majority said, in relation to the interview in May 2001, that they had carefully considered the questions asked at the interview, and found they were proper questions to ask.  They were impressed by the evidence of Mrs Williamson, another Governor on the interviewing panel, who did not know that Miss Lucey had a disability, and still said that the other candidate was seen as the better of the two.  

30	Again, the minority member disagreed.  She thought the whole process was flawed.  She would have drawn inferences from the failure to provide an appeal process or reasons.  She thought there was an early decision to get rid of Miss Lucey because of her disability and its implication for absenteeism.  She thought the whole process of advertising the two positions and interviewing was a charade which took place only because the Local Authority said it should.  These conclusions were based on the minority members’ very different findings of fact recorded in paragraph 23 of the Decision.  

31	At this point it is appropriate to record two features of the hearing before the Tribunal.  

32	Firstly, Mr Harrison was not called to give evidence.  We are told, although we have not seen it, that he gave a witness statement in which he robustly denied speaking to Miss Lucey in the way she suggests.  The Employment Tribunal admitted this witness statement on the basis that it would give such weight to the evidence as it saw appropriate.  

33	Secondly, Father O’Dowd, although the Chairman of the Governors, neither gave a statement nor gave evidence.  There was no evidence before the Employment Tribunal to explain why he did not do so.  Mr McNamara, Counsel for the School, told the Tribunal that, according to his instructions, Father O’Dowd was 82 and “somewhat infirm”.  However there was no evidence to this effect.  We are told that Father O’Dowd remains a Governor of the school.  

Disability discrimination
34	Cases of alleged unlawful discrimination are among the most difficult which Employment Tribunals have to deal with.  The reasons are well known.  They are set out in the decision of the Appeal Tribunal in Qureshi -v- Victoria University of Manchester [EAT 21 June 1996) and of the Court of Appeal in Anya -v- University of Oxford [2001] IRLR 377, in which Qureshi is extensively quoted.  It will not be every disability discrimination case which raises similar problems to those which are identified in Qureshi and Anya.  In many disability discrimination cases the reasons for any alleged less favourable treatment will be overt, and must be judged in accordance with criteria laid out in sections 5 and 6 of the 1995 Act.  But there will be cases where the principles in Qureshi and Anya are of importance.  Where, as here, an employee draws together a number of pieces of evidence which suggest discrimination for a reason related to her disability, but an apparently honest employer denies that evidence, Qureshi and Anya considerations come into play.  

35	In such a case, a relatively high standard of reasoning is expected from an Employment Tribunal.  Where an applicant has been the subject of less favourable treatment, and it is said not to have been on the grounds of disability, it is important that the Tribunal should give proper consideration to all the indicators which the Applicant has relied on as pointing to an opposite conclusion  This particularly applies where, as here, the eventual decision is justified by the decision of an interviewing panel, asserting reliance on the personal and professional qualities of two otherwise comparable candidates.  Such a judgment is notoriously capable of being influenced, often not consciously, by idiosyncratic factors.  If they are unlawful, it will generally only be from the surrounding circumstances and the previous history, and not from the act of discrimination itself, that this will emerge.

36	Against this background we turn to consider the Decision of the majority.  

37	We consider that the majority committed no error of law in concluding that the school decided to make the Key Stage 1 post permanent, and to advertise that post, for reasons which did not relate to Miss Lucey’s disability.  It is clear that this decision was taken on 7 November 2000.  Even at that early stage it was contemplated that the post would be advertised.  The Employment Tribunal unanimously found that Mrs Snowdon learned of Miss Lucey’s cystic fibrosis after this date.  

38	We are, however, critical of the way in which the majority of the Tribunal has dealt or failed to deal with several other aspects of Miss Lucey’s case.  

39	We deal firstly with the allocation of the management point to the Key Stage 1 job.  This was an important issue for the Tribunal to consider.  It was a matter specifically raised in the Originating Application.  In its Notice of Appearance the school did not explain why the management point had been allocated to the Key Stage 1 post.  

40	In answer to a questionnaire served under section 56 of the 1995 Act the school said:
“It was decided that a management point for assessment would be attached to the post of key stage 1 teacher.  The head teacher does some teaching at key stage 2 and the assessment for key stage 2.  The governors decided that assessment at key stage 1 should be paid on a management point.”

41	However Mrs Snowdon’s witness statement gave a quite different explanation for the management point.  She said that the point was to provide cover in her absence.  She said that it was a management issue as to where that point was assigned.  This answer conflicts with the answer to the questionnaire in two respects.  Firstly, the reason given for the point is different.  Secondly, it is said to be a decision of management rather than a decision of the Governors.  As Counsel for the school was constrained to accept, these two explanations for the management point are irreconcilable.  

42	This issue was plainly still a live and important issue before the Tribunal.  In its unanimous findings, the Tribunal expressly state that Miss Lucey, after she heard the result of the interviews, queried why the management point had been moved from Key Stage 2 to Key Stage 1.  The Tribunal record, as a finding of fact, that Mrs Snowdon told her it had been discussed and agreed with the Governors.  This is inconsistent with Mrs Snowdon’s statement.  The Tribunal further record as a finding of fact that Miss Lucey asked two Governors why this was, but neither was able to answer the question.  

43	This issue is not touched on, still less resolved, in the Decision of the Tribunal.  Given its importance, and given the conflicting evidence and accounts which we have set out, it was the duty of the Tribunal to set out its findings of fact on this issue and to say what, if any, inferences it drew from them.  

44	Further, it is impossible to see from the Tribunal’s Decision how the existence of a management point attached to the Key Stage 1 job influenced questions which were asked at interview or the decision which was reached to appoint the other teacher.  On the one hand, the management point may have had no influence at all.  On the other hand, it may have been decisive in the type of questions asked and the answers given.  

45	That the majority considered the issue to be important in the Decision it reached appears in the opening words of the Decision.  They refer to the reason for Miss Lucey’s dismissal being “a decision by the Respondent to appoint a permanent position different from the temporary position which the Applicant held”.  Given this conclusion, it is remarkable that there are no findings on the reason why the management point was allocated as it was.  

46	We turn secondly to the allegations concerning Father O’Dowd, the Chairman of the Governors.  The Tribunal unanimously found that at the interview of Miss Lucey for the permanent position, Father O’Dowd made a reference to work which Miss Lucey had done before she became a teacher - in modelling.  The minority member concluded that what he said was both demeaning and indicative of the fact that he had made up his mind.  The majority thought he was merely indicating to Miss Lucey what she might consider in the event that she was unsuccessful in her application.  Even on the majority view the remark was an unfortunate one.  There was other, very important, evidence concerning Father O’Dowd.  Miss Lucey’s mother gave evidence on oath.  She said that she telephoned Father O’Dowd and that he told her Miss Lucey would not be considered for a permanent position at the school due to the likelihood of her being ill in the future.  This was evidence of considerable importance.  

47	Father O’Dowd, although the Chairman of the Governors, neither gave a statement nor attended the hearing to give evidence.  In submission to the Tribunal, Counsel for the school had suggested that Father O’Dowd was 82 and, according to his instructions, “somewhat infirm”.  However Counsel confirmed to us that there was no evidence before the Tribunal to this effect.  We are told that Father O’Dowd, though no longer the Chairman of the Governors, remains a Governor.  In the result, the Tribunal had before it evidence on this point given by Mrs Lucey on oath, un-contradicted by any statement or evidence from Father O’Dowd.  The minority member accepted Mrs Lucey’s evidence.  The majority members expressed the view that “Father O’Dowd did not use those words since they lay uneasily both in terms of timing and context with what occurred”.  

48	This is, in our judgment, unacceptable reasoning for the rejection of evidence given under oath in these circumstances.  If Mrs Lucey’s evidence was to be rejected, the majority had to conclude either that she was dishonest or, in this respect, wholly unreliable.  The majority do not find that Mrs Lucey was dishonest.  They say merely that the words would sit uneasily in terms of timing and context.  We do not see why this should be so, and the majority do not say why it should be so.  We cannot see why the majority of the Tribunal failed to accept the uncontroverted evidence of a witness under oath.  

49	Thirdly, Miss Lucey gave evidence under oath that at about the beginning of May 2001, Mr Harrison approached her before school and told her that Mrs Snowdon said to him that under no circumstances would she be considered for the job because of her illness.  This too was evidence of considerable importance.  It is common ground that Mr Harrison was not only a caretaker but also a school governor.  The Tribunal do not record that he was a school governor, but the matter was not in dispute and (we are told by the school’s Counsel) clearly appeared from minutes which were before the Tribunal.  Mr Harrison did not attend the Tribunal.  There was a witness statement from him denying what Miss Lucey had said.  The Tribunal admitted the witness statement.  Counsel for the school tells us that the Tribunal was given no explanation as to why Mr Harrison could not attend to give evidence.  The hearing was held during term time.  Mr Harrison was employed at the school.   

50	The majority, in paragraph 7 of its Decision, said that it resolved conflicts of evidence in favour of the school because “they were more credible and the demeanour of the Applicant while giving evidence corroborated in some part the evidence of the Respondent”.  This reasoning could not apply to the evidence of Mrs Lucey, since Father O’Dowd had given no evidence at all and Miss Lucey’s demeanour would be irrelevant to the credibility of Mrs Lucey.  The majority do not explain why they regard a statement from a witness who has not been called, and whose absence is unexplained, to be more credible than Miss Lucey’s evidence.  

51	The three issues which we have identified went to the heart of Miss Lucey’s case.  We repeat what was said in Anya: it will often not be clear from the interview itself, but from surrounding matters, whether there was unlawful discrimination.  These matters are not adequately dealt with in the Reasons of the Tribunal, and we conclude that the Decision of the Tribunal on disability discrimination cannot stand.  

Unfair dismissal
52	In its Decision concerning unfair dismissal, the Tribunal concentrated on the absence of any appeal process available to Miss Lucey.  This must be seen in the light of the majority’s Decision that her dismissal was unrelated to her disability.  A finding that she was dismissed for a reason related to her disability would entail reconsideration of the questions whether there was some other substantial reason for her dismissal and whether her dismissal was fair.  Since we have concluded that the majority’s reasons for holding that her dismissal did not relate to her disability are unsound, it follows that the appeal in relation to the finding of unfair dismissal must also be allowed.  However, since this matter is being remitted, it is important that we should deal with the point which arose out of paragraph 24 in Schedule 17.

53	The Tribunal’s Decision proceeded on the basis that paragraph 24(2) applied in Miss Lucey’s case.  It is clear that this point was conceded by Counsel for the school, as indeed it was conceded in his Skeleton Argument before us.  The concession is, however, demonstrably wrong.  Miss Lucey was in her first year at the school.  She worked under a fixed-term contract which expired at the end of that year.  By virtue of paragraph 24(4) neither paragraphs 24(1) nor 24(2) applied in her case.  The school had no statutory duty to afford her an opportunity to make representations or appeal.  

54	Counsel for the school did not seek to withdraw the concession which he had made.  The Appeal Tribunal will permit a concession made before the Tribunal to be withdrawn only in exceptional circumstances and for compelling reasons, particularly if the new point would necessitate the case being remitted to the Tribunal to hear further evidence.  

55	On the footing that paragraph 24 applied in Miss Lucey’s case, the reasoning of the majority was erroneous.  They took the view that any appeal against dismissal would have been an exercise written in water because it would have occurred when Miss Lucey had already obtained other employment.  They found it was inconceivable that an appeal hearing would have resulted in a successful outcome for her.  

56	In our judgment, paragraphs 24(1) and (2), in a case of non-renewal of a teacher’s contract of employment, operate at an earlier stage than the Employment Tribunal appreciated.  In our judgment the Governing Body, if paragraph 24 applied, would have been under a duty to afford Miss Lucey an opportunity of making representations and appealing before it acted on a decision to replace her post with a permanent post on different conditions.  It follows that any appeal against that decision under paragraph 24(2) would have taken place before another teacher was interviewed and appointed.    This is consistent with the decision of the Appeal Tribunal in Howard -v- Governor of Brixington Infants School [1999] ICR 1096.  Parliament cannot have intended that a teacher to whom paragraph 24 applied in Miss Lucey’s position would have a right of appeal only after another had been interviewed and appointed.  

57	It follows from our earlier conclusions that this case will be remitted for re-hearing by a freshly constituted Tribunal which will hear the case and reach conclusions entirely of its own.  In our judgment it does not follow that the concession, wrongly made by the school at the last Tribunal hearing and at this hearing, must necessarily be sustained at the re-hearing.  The Appeal Tribunal’s general practice of holding parties to concessions, even if arguably or demonstrably wrong, flows from considerations of justice.  It is generally unjust to allow a concession to be withdrawn at an appellate stage because the hearing below will have been conducted on the basis of it, the appeal brought on the basis of it, and the prejudice to the opposite party considerable.  Often a re-hearing will be necessitated.  But these considerations do not apply where a case has in any event to be remitted for re-hearing.  Although it is possible to envisage exceptional circumstances, it will generally be just for a full re-hearing to be dealt with on a proper legal basis rather than on any earlier false concession as to the law. 

Conclusions
58	For the reasons given above, Miss Lucey’s appeal is allowed.  Her complaints of disability discrimination and unfair dismissal are remitted to be re-heard by a differently constituted Employment Tribunal.  It is desirable that there should be a directions hearing first, which should clearly identify the issues in dispute between the parties.  

59	It is also desirable that conciliation should be explored before a further full hearing is embarked on.  In a case of this kind financial considerations are not always the most important.  Indeed, we note that Miss Lucey obtained employment elsewhere.  Sometimes an applicant’s primary concern is that her sense of grievance should be acknowledged and that measures should be taken (for example by way of proper procedures and training) to ensure that issues of disability are properly recognised and dealt with in the future.  Sometimes a respondent is willing to acknowledge shortcomings in the way a matter has been handled and to make a commitment to better procedures in the future.  If these factors operate, there is sometimes more room for conciliation than appeared at first sight.  It is the task of Tribunals and Appeal Tribunals to decide cases according to law.  We hope, however, that before the legal process resumes careful thought will be given on both sides to the question whether there is room for conciliation.