Appeal No.UKEAT/0933/03/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	on 18 June 2004
Judgment delivered on 26 July 2004

Before
HIS HONOUR JUDGE PROPHET
MS V BRANNEY
MR D CHADWICK

MR JOHN TOWNSEND	APPELLANT

OFFICE FOR NATIONAL STATISTICS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D McCARTHY
(of Counsel)
Instructed by:
Messrs Hodge Jones & Allen
Solicitors
Twyman House
31-39 Camden Road
London NW1 9LR
	
For the Respondent	MR J STANLEY
(Representative)
113B Graham Road
London E8 IPB	

SUMMARY

Disability Discrimination

Issue of whether dismissal related to disability

HIS HONOUR JUDGE PROPHET

1	Mr Townsend is black and has a stammer.  He worked at the Office for National Statistics as a Quality and Training Co-ordinator from August 2001 and as with all new recruits at that Office, he entered a probationary period.  However he was dismissed from his employment with effect from 29 April 2002 on the basis that he had not met the standards expected of him during his probationary service.

2	On 11 June 2002, he presented an application to the Employment Tribunal at London South.  That application contained four complaints i.e. disability discrimination, a failure to make reasonable adjustments for disability, race discrimination, and breach of contract.  The employer resisted the complaints.

3	Directions hearings were held to clarify the issues etc.  One consequence was the holding of a preliminary hearing on 6/7 March 2003 which determined that, because of his stammer, Mr Townsend was at all material times a person with a disability for the purposes of the Disability Discrimination Act 1995.  During that hearing the breach of contract complaint was withdrawn.  

4	A full hearing then followed on 12 - 14 May and 26 June 2003 before an Employment Tribunal with Ms Taylor as the Chairman and Mr de Laundy and Mr Shukla as the lay members.  Mr Townsend was an applicant in person.  The employer was represented by Mr Stanley, solicitor.  Following a chambers meeting on 29 July 2003, the Employment Tribunal dismissed all the discrimination complaints, promulgating a decision to that effect, with Extended Reasons, on 4 September 2003.  

5	The Notice of Appeal from Mr Townsend is now in an amended form as prepared by Mr McCarthy of Counsel, who has represented Mr Townsend at our full appeal hearing, with Mr Stanley again representing the employer.  The grounds of appeal are as follows.

(1) The Tribunal failed to reach any finding (or any adequate finding) as to whether the Appellant was treated less favourably.
(2)  Perverse finding concerning reason for dismissal.
(3) The Tribunal do not make any findings on the extent to which the Appellant’s suspension was due to disability discrimination and/or race and/or victimisation.  
(4) The Tribunal found that the Appellant would rely on hypothetical white comparators.
(5) Failing to provide adequate reasons.
(6) The Tribunal rejected the Appellant’s contention that the Respondent had misinterpreted the appearance of his disability as intimidation.  
Mr McCarthy has submitted a Skeleton Argument and oral submissions to support those grounds.

6	The principal less favourable treatment of which Mr Townsend complains is by being dismissed.  That being so, the essential question for the Employment Tribunal to answer was whether he was dismissed for a reason related to his disability.  That is a question of fact for the Employment Tribunal to determine Clark -v- TDG Ltd t/a Novacold [1999] IRLR 318.  The Employment Tribunal clearly found, as a fact, that he was not dismissed for a reason related to his disability.  

7	What principally lay behind Mr Townsend’s dismissal, as found by the Employment Tribunal which heard all the relevant evidence, was a sharp and sudden decline in his attitude and behaviour, the details of which are set out in the Tribunal’s Extended Reasons.  

8	When these matters finally resulted in his dismissal the letter of dismissal indicated two areas where he had failed to meet the employer’s required standards as set out in Mr Townsend’s terms and conditions of employment (see paragraph 17 of the Extended Reasons).  These two areas were attendance and conduct.  Mr McCarthy submits that it was perverse of the Employment Tribunal to say at paragraph 32 of the Extended Reasons that he was dismissed by reason of his conduct.

9	We think, with respect to Mr McCarthy that that is nit picking.  The Employment Tribunal was fully aware of the contents of the letter (see paragraph 29 of the Extended Reasons) and they also knew from the evidence given to them that the employer regarded Mr Townsend’s conduct i.e. unacceptable attitude and behaviour, as the principal reason for dismissing him.  That was what the Employment Tribunal was indicating in paragraph 32.

10	It is, in our view, significant that Mr McCarthy makes no attempt to suggest that Mr Townsend’s unacceptable conduct was in any way linked to his disability, bearing in mind that that conduct was the major factor troubling the employer.

11	We are not persuaded that the Employment Tribunal failed to examine whether the more minor factor i.e. attendance was related to his disability.  It is apparent, reading the Extended Reasons as a whole, that the Employment Tribunal could not, as a fact, relate any part of Mr Townsend’s failure to meet acceptable standards to his disability.

12	It is important to bear in mind the way Mr Townsend presented his case to the Employment Tribunal.  From the Originating Application, he was complaining of being bullied by his employers and that it was their attitude to him which resulted in stress, to which he alleged he was more susceptible than others because of his stammer.

13	Mr McCarthy submits that Mr Townsend’s stress was a manifestation of his stammer (see Murray -v- Newham CAB Ltd [2003] IRLR 340).  We can see that if there is a recognised manifestation of a disability, dismissal could be related to the disability through the recognised manifestation.  However, we are satisfied that the Employment Tribunal was in no way persuaded that that was the situation with Mr Townsend, and that any suggested link of that nature was far too tenuous.

14	Turning to the ground of appeal relating to Mr Townsend’s suspension we accept from Mr Stanley that that was never put forward at the hearing as a separate ground of discrimination and that accordingly there was no requirement for the Employment Tribunal to make a decision on that.  

15	We can find no fault in the Employment Tribunal taking the view that for the purposes of the race discrimination complaint, the correct comparator was a hypothetical one.  If there had been a named comparator in the application or further particulars, no doubt the Employment Tribunal would have indicated how they saw the situation in relation to that named comparator.  

16	There is, in our view, no substance in the submission that the Employment Tribunal failed to provide adequate reasons.  On the contrary the Tribunal set out its reasons with commendable clarity and no one reading them could have any serious doubt as to why Mr Townsend lost his case.  

17	The final ground of appeal turns on Mr McCarthy’s submission that the Employment Tribunal was in error in saying at paragraph 36 that:
“the applicant gave no evidence that the appearance of the applicant’s stammer or any consequential gestures appeared intimidating or gave the appearance that he was harassing any member of staff.”
Again this emerges as taking a sentence in isolation.  As Mr Stanley submits, the Employment Tribunal was there referring to evidence of specific incidents, and we are satisfied that the Employment Tribunal did not overlook that during meetings preceding his dismissal Mr Townsend was making the point that other staff might wrongly interpret an effect of a stammer as being aggressive behaviour.  The Employment Tribunal could not however determine there being any failure to make adjustments consequent upon those matters.

18	It follows from what we have said above that, unanimously, we have dismissed this appeal.