The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior staff member’s emails. During the disciplinary hearing, he had been assisted by an interpreter for part of the hearing only.
Held: There is no rule of law that only a rehearing and not a review on a disciplinary appeal could cure a defect in fairness in the original hearing: ‘What matters is not whether the internal appeal was technically a rehearing or a review but whether the disciplinary process as a whole was fair.’
Judges:
Brooke LJ VP, Dyson LJ, Smith LJ
Citations:
[2006] EWCA Civ 702, [2006] IRLR 613, [2006] ICR 1602
Links:
Statutes:
Employment Rights Act 1996, Disability Discrimination Act 1995
Jurisdiction:
England and Wales
Citing:
Appeal from – OCS Group Ltd v Taylor EAT 23-May-2005
EAT Unfair Dismissal / Disability Discrimination – 1. The ET did not err in law when it decided that the Claimant because of his inability to participate in a disciplinary hearing on account of his profound . .
Cited – Whitbread and Co plc v Mills EAT 1988
Where there had been defects in the procedure adopted at a disciplinary hearing, an appeal which was restricted to a review and was not a rehearing could not remedy the defects of the original hearing.
As to the case of Calvin v Carr: . .
Cited – Adivihalli v Export Credits Guarantee Department EAT 27-Mar-1998
A second disciplinary hearing by way of review rather than a rehearing might nevertheless be sufficient to remedy the defects of an earlier hearing. . .
Cited – Leary v National Union of Vehicle Builders 1971
The court faced questions on a trades union’s decision as to the membership of the applicant.
Held: As a general rule, ‘a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.’ . .
Cited – Calvin v Carr PC 15-Jan-1979
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – West Midlands Co-operative Society v Tipton HL 1986
All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal . .
Cited – Dobie v Burns International Security Services (UK) Ltd CA 14-May-1984
The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the . .
Cited – Sartor v P and O European Ferries (Felixstowe) Ltd CA 1992
When considering whether an employer had acted reasonably in a disciplinary hearing, all that section 57 required was (Purchas LJ) ‘that the employer should have a reason falling within the provisions and that, in reaching that reason, he acted . .
Cited – H J Heinz Co Ltd v Kenrick EAT 3-Dec-1999
EAT Disability Discrimination – Compensation. . .
Cited – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
Cited – Regina v Birmingham City Council ex parte Equal Opportunities Commission HL 1989
At the council’s independent, single-sex grammar schools there were more places available for boys than girls. Consequently the council were obliged to set a higher pass mark for girls than boys in the grammar school entrance examination.
Cited – E I Du Pont De Nemours and Company v S T Dupont; Du Pont Trade Mark CA 10-Oct-2003
The court considered the circumstances under which a Hearing Officer’s decision could be reversed on appeal: ‘Those experienced in cases such as these, such as the Hearing Officer, would have known that the sort of evidence normally adduced on . .
Cited by:
Cited – S v Floyd, Equality and Human Rights Commission CA 18-Mar-2008
The court considered the relationship between the two Acts. The assured tenant had fallen into arrears, and was subject to an order for possession. He claimed that his disability required the court not to make an order for possession against her, . .
Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
Cited – O’Hanlon v Revenue and Customs CA 30-Mar-2007
The claimant suffered depression, and complained that the respondent’s reduction in her pay after long periods of sickness was discriminatory. She appealed decisions that it was not. She said that a reasonable adjustment would have been to continue . .
Cited – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .
Cited – Cumbria Probation Board v Collingwood EAT 28-May-2008
EAT DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
>2002 Act and pre-action requirements
The date of disability is . .
Cited – First Hampshire and Dorset Ltd v Parhar EAT 10-May-2012
parharEAT2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Ill health capability dismissal. Section 98(4) Employment Rights Act 1996 reasonableness judged by Employment Tribunal only as at EDT; ET ought to have . .
Cited – Adeshina v St George’s University Hospitals Nhs Foundation Trust EAT 1-May-2015
adeshinaEAT201506
EAT Unfair Dismissal: Reasonableness of Dismissal – CONTRACT OF EMPLOYMENT – Wrongful dismissal
RACE DISCRIMINATION – Burden of proof
Unfair dismissal
(1) Whether the ET had erred in the . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 06 July 2022; Ref: scu.242282