EMPLOYMENT

Deafness - disability discrimination - disciplinary procedures - misconduct - unfair dismissal

Andrew James Taylor v OCS Group Ltd: CA (Civ Div) (Lords Justice Brooke (V-P), Dyson, Smith): 31 May 2006



The appellant employer (O) appealed against the decision in favour of the respondent (T) on his claims for unfair dismissal and for discrimination under the Disability Discrimination Act 1995.


O was part of a large group of companies. T worked as a database programmer/analyst. He was profoundly deaf and his deafness amounted to a disability under the 1995 Act. In the course of his work, he gained remote access to the terminal of another employee and, in breach of O's policy on access to other employee's terminals, acquired confidential information about staff salary levels. T's manager suspended him and decided that there was a case of misconduct to answer.


A disciplinary meeting was held at which T was dismissed. At that hearing, T was not represented and did not fully understand what was happening.


The decision to dismiss was affirmed on appeal. At the appeal hearing, O had provided T with an interpreter but for part of the time only. The employment tribunal found that the dismissal had been unfair under section 98(4) of the Employment Rights Act 1996 because T had been unable to participate effectively in the disciplinary process leading to his dismissal, particularly at the first hearing, and that the appeal hearing had not rectified the defects of the first hearing.


The tribunal held that O had not discriminated against T by dismissing him for a reason related to his disability but had subjected him to a detriment by failing to make arrangements to prevent his deafness putting him at a serious disadvantage at the disciplinary hearing.


The Employment Appeal Tribunal upheld the employment tribunal's decision that the appeal hearing fell short of what was required to correct the earlier defect, and allowed a cross-appeal by T on the basis that one of the reasons why T had been dismissed was on account of his disability.


O submitted that the employment tribunal had erred in law in finding that the appeal hearing could not cure the defects in the first hearing because it was a review only and not a rehearing; the EAT had been wrong to allow T's cross-appeal, because the reason for the dismissal was simply T's misconduct and the fact that T had not been able to respond to the allegations, due to his disability, had not had any effect on the decision to dismiss him.


Adrian Lynch QC, instructed by Nabarro Nathanson, for the appellant; Tess Gill, instructed by the Disability Rights Commission, for the respondent.


Held, there was no rule of law that only an appeal by way of rehearing was capable of curing earlier defects in disciplinary proceedings and that a mere review never was.


The question of whether the defects of a first hearing had been cured at a second hearing did not depend on whether the second hearing could be categorised as a rehearing or a review and the employment tribunal should not attempt such a categorisation.


When considering a complaint of unfair dismissal under section 98(4) where the employee had exercised a right of appeal in disciplinary proceedings, the tribunal had to consider the overall process. If the first hearing had been defective, the appeal would have to be comprehensive if the whole process and the dismissal was to be found to be fair, Whitbread v Mills (1988) ICR 776, Sartor v P & O European Ferries (1992) IRLR 271 and Adivihalli v Export Credits Guarantee Department considered.


It would be advisable for Whitbread not to be cited in future. Under section 98(4), the tribunal should not consider procedural fairness separately from the other issues arising, such as the reasons for dismissal.


The tribunal in the instant case had fallen into the trap of deciding that the dismissal was not fair because the appeal was only by way of review and the EAT had failed to correct that error. The case was remitted for rehearing by a differently constituted tribunal on the issue of unfair dismissal because it could not possibly be said that the tribunal's decision was plainly right on the facts notwithstanding the error of law.


The employment tribunal had been right to dismiss T's claim under section 5(1) of the 1995 Act that he had been dismissed for a reason related to his disability.


The contributory reason relied on by T was not said to have affected the employer's mind. T's inability on account of his deafness to explain his conduct might have contributed to his dismissal as a matter of causation.


But that was not the issue under section 5(1). The issue was whether O had had a disability-related reason in his mind when he dismissed T. There was no evidence that O had and that was never suggested. The EAT erred in overturning the tribunal's decision on section 5(1) and the tribunal's order was restored. Appeal allowed.





LANDLORD AND TENANT


Business premises - forfeiture - protection from eviction - residential tenancies - mixed business and residential tenancies

Rasiah Pirabkaran v Navichandra Manibhai Patel & Anor: CA (Civ Div) (Lord Justice Wilson, Sir Peter Gibson): 26 May 2006


The appellant (T) appealed against the decision that his lease of mixed business and residential premises had been lawfully forfeited by the respondent landlords (L).


T conducted a retail business on the ground floor of the premises and resided on the first floor.


T fell into arrears and L exercised their right of re-entry in relation to the shop premises. T remained resident in the residential premises. L issued a claim for possession on the basis that, as a result of their re-entry of the shop premises, the lease had become forfeit.


L subsequently excluded T from the residential premises and T issued a claim for an injunction that L should be restrained from excluding him from either part of the premises because under section 2 of the Protection from Eviction Act 1977, the purported forfeiture of the lease was unlawful.


The judge found that the demised premises were not let 'as a dwelling', that accordingly L were not constrained by section 2 of the 1977 Act, and that therefore the lease had been lawfully forfeited.


Jan Luba QC (instructed by Van-Arkadie & Co) for the appellant; Tom Weekes (instructed by Albin Hunt & Stein) for the respondents.


Held, the phrase 'let as a dwelling' in section 2 of the 1977 Act meant 'let wholly or partly as a dwelling' and so applied to premises that were let for mixed residential and business purposes.


When the precursor to section 2 was introduced as section 31 of the Rent Act 1965, such was understood to be the established meaning of the phrase, contained, as it had been, in a series of prior enactments and so construed in a series of judgments of the instant court.


If that was what the phrase meant in section 31 of the 1965 Act, that was what it must mean in section 2 of the 1977 Act, for the words were identical and lay on the page without any later qualification. The inclusion of a tenancy for mixed purposes in section 8 of the 1977 Act, as in section 81 of the Housing Act 1996 and sections 167 and 168 of the Commonhold and Leasehold Reform Act 2002, was not idly surplus and its purpose was to exclude such a tenancy from section 3 of the 1977 Act because otherwise the phrase 'let as a dwelling' would have included such a tenancy in it. It was the clearest window into the meaning of the phrase at least in section 3 and, by reference, in section 2. Wellcome Trust Ltd v Hamad [1998] QB 368 and National Trust for Places of Historic Interest or Natural Beauty v Knipe [1998] 1 WLR 696 considered.


Reference to T's human rights fortified that interpretation of section 2 of the 1977 Act. The cases of Connors v UK (2005) 40 EHRR 9 189 and Kay v Lambeth LBC [2006] UKHL 10 , [2006] 2 WLR 570 assisted performance in the instant case of the obligation under section 3 of the Human Rights Act 1998 to strive for compatible interpretation.


From the judgment in Connors, the court derived the following; that an interpretation of section 2 of the 1977 Act that prohibited a landlord from exercising otherwise than by proceedings in court an alleged right of re-entry upon premises let for use as a dwelling as well as for business purposes was an interpretation that would be compatible with the tenant's rights under article 8 of the European Convention on Human Rights; and by contrast, that the opposite interpretation of it would be incompatible. Appeal allowed.





COMPANY


Fraud estoppel - fraudulent trading - right of indemnity - share certificates - share dealing

(1) Cadbury Schweppes PLC (2) Unilever PLC (claimants) v Halifax Share Dealing LTD (defendant/part 20 claimant) & Lloyds TSB Bank PLC (part 20 defendant): ChD (Mr Justice Lindsay): 23 May 2006


The claimant companies (C) claimed an indemnity from the defendant stockbrokers (H) to recoup their losses resulting from a share fraud, and the defendant provider of share registration services (L) applied to strike out H's part 20 claim. Alternatively, L applied for summary judgment against H.


C, H and L, as well as shareholders in both companies, had been innocent parties affected by a share fraud. The resulting damage had been made good by C without assessment of relative blameworthiness amongst the parties.


The issue for determination was who should bear the costs of setting right the effects of the fraud, and C brought proceedings on the basis that there was an implied indemnity in their favour payable by H, as H had lodged fraudulent executed transfers of shares in C with L, which was the action which had caused the losses.


H submitted that there was an estoppel raised against the indemnity claim in that C could not deny the truth of the apparently regular share certificates identifying the fraudsters as shareholders, which H had been given to lodge with C together with the transfer, and upon which H had relied to their detriment.


Rosalind Nicholson (instructed by LeBoeuf Lamb Greene & MacRae) for the claimants; Alain Choo Choy (instructed by DLA Piper Rudnick Gray Cary) for the defendant.


Held, the court chose to depart from the maxim that all estoppels were odious, Baxendale v Bennet (1878) 3 QBD 525 not applied. The maxim no longer represented modern practice, at least for estoppels by representation. H had satisfied the conditions required to assert an estoppel by representation and there was no reason for it not to be deployed.


C's claim for the expense of reinstating the original shareholders was on the basis that the original shareholders had all along been the persons who alone were to be recognised as the true shareholders, but the onus was on C to displace the prima facie title that their own share certificates conferred, Dixon v Kennaway & Co [1900] 1 Ch 833 applied.


Therefore C, being by reason of the estoppel unable in the proceedings to deny the truth of their own share certificates naming the fraudsters as the shareholders at the only time at which H did anything of relevance, found themselves unable to assert or prove that the persons that they reinstated were, indeed, true shareholders.


Thus their claim ended up as if C had reinstated strangers who had no right to be shareholders, a claim against which they received no implied indemnity from H, Sheffield Corporation v Barclay [1905] AC 392 applied. C had no right against H other than by way of such Barclay-implied indemnity and, as that was denied them, their claims against H failed.


Accordingly, there was no part 20 award by H against L, and L's application to strike out failed.


The latter would in any event have failed as, irrespective of the prospects of success, the court would probably have regarded the issues between those parties to be of such seriousness and wide concern as to make summary process inappropriate. Judgment accordingly.






CIVIL PROCEDURE


Agreements - claims handling - group litigation orders - law firms - particulars of claim - trade unions - identification of group litigation issues - more cost-efficient means of resolution

Alan Thomas Hobson & others v Ashton Morton Slack Solicitors & 6 others: QBD (Sir Michael Turner): 18 May 2006


The applicants (H) applied for an order enabling them and other prospective claimants to mount group litigation against the respondent firms of solicitors and trade union for the recovery of costs deducted from compensation recovered on their behalf.


H had all received compensation under claims-handling agreements made with the Department of Trade and Industry for the resolution of claims by miners in respect of various respiratory conditions and for neurological and vascular damage to the hands.


The primary issue was of the legal validity or enforceability of agreements between the trade union and individual claimants under which the claimants had agreed to pay to that trade union a proportion of the compensation awarded to them under the claims-handling agreements.


H sought to claim that the first to fourth respondent solicitors' firms had been in breach of duty towards H by causing or permitting them to make such payment to the trade union.


H sought to claim against the fifth respondent solicitors' firm that it had acted in a similar manner of behalf of another union.


The respondents argued that the generic particulars of claim prepared by H did not comply with the requirements for making a group litigation order under rule 19.11 of the Civil Procedure Rules 1998 because they did not contain a 'clear and concise statement of the common issues of fact or law'.


Andrew Prynne QC and Oliver Campbell (instructed by Green Wood & McLean) for the applicants; Ben Hubble (instructed by Robin Simon) for the first respondent; Spike Charlwood (instructed by Beachcroft) for the second and fifth respondents; Alan Gourgey QC and Ian Smith (instructed by Weightmans) for the third respondent; James Allen QC and David Rose (instructed by Brooke North) for the sixth and seventh respondents.


Held, no sufficient consideration had been given to pursuing a more cost-efficient means of resolving what was essentially a simple issue of fact, such as a test case or consolidation of the actions. It had not been demonstrated that either method was inappropriate or inaccessible.


There was a reasonable prospect that if it had been applied for, public funding might have been available for a test case.


No group litigation issue had been sufficiently or precisely identified. Even if it had, there was no justification for including any of the solicitor respondents in the present application because if the claims succeeded against the trade union, there was no reasonable likelihood of the solicitors having any liability to individual claimants, who would recover from the trade union or not at all.


The claims made against the fifth respondent firm had no natural affinity with the claims made against the other solicitors. There were other unions that ought to have been joined and that H had no intention of joining.


There was a gross imbalance between the costs already incurred and to be incurred and the sums to be recovered.


Resolution of the validity and enforceability of the contract between H and the sixth respondent and any damages involved was a fact-sensitive inquiry that a decision in the contractual issue alone could not decide.


The sufficiency of the after-the-event insurance for the prospective litigation was unclear. Taking all these factors into account, the case was not suitable for a group litigation order. Application refused.


See [2006] Gazette, 1 June, 4.





EDUCATION


Negligence causation - causes of action - compensatory damages - liabilities - loss - special educational needs - claim for compensatory damages

Andrew Marr v Lambeth London Borough Council: QBD (Mr Justice Ouseley): 25 May 2006


The claimant (M) claimed damages for negligence in educational provision against the defendant (D).


M had been born in August 1982 and reached school-leaving age in 1998. M claimed that negligence had occurred at each of the three schools he attended from the age of eight until his permanent exclusion in February 1996.


M claimed that following his exclusion, the local education authority officers were negligent in failing to ensure that he remained on the waiting list for the defendant local education authority's pupil referral unit. M did not obtain a place at that unit until June 1997.


M submitted that he had special educational needs that related to his literacy difficulties and that those had not been recognised or dealt with in a reasonably competent way, with the result that he was functionally illiterate and was unable to pursue the type of further education or employment that his other abilities would have permitted.


The defendants denied negligence or causation of loss and alleged that M's claims were not justiciable and were in essence an attempt to mount a claim for damages for breach of statutory duty in another guise.


Martin Westgate (instructed by Ole Hansen & Partners) for the claimant; Andrew Warnock (instructed by Barlow Lyde & Gilbert) for the defendant.


Held, having heard and considered all the evidence and submissions, the court was satisfied that the allegations of negligence were not made out or, to the limited extent that they might be made out, no loss had been caused.


M's case amounted, in reality, to an action for breach of statutory duty in disguise, or an action based on a general claim of inadequate teaching or even an inadequate educational system.


Whilst points raised by M might have had force in a case before the Special Educational Needs and Disability Tribunal or in an action for breach of statutory duty, they faded in an action for negligence. Judgment for the defendant.