Appeal No.	 EAT/885/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 1997

Before
HIS HONOUR JUDGE H J BYRT QC
MRS J M MATTHIAS
MR S M SPRINGER MBE

MISS R O'NEILL	APPELLANT

SYMM & COMPANY LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MS S DREW
(of Counsel)
Messrs Darbys
Solicitors
Sun Alliance House
52 New Inn Hall Street
Oxford OX1 2QA	

	JUDGE JOHN BYRT QC:     This is a preliminary hearing in relation to an appeal against the decision of the Industrial Tribunal sitting at Reading.  The decision was promulgated on 11 June 1997 and by it they decided that Miss O’Neill, the employee, was not unlawfully discriminated against, contrary to the Disability Discrimination Act 1995.  The Tribunal also decided that a claim under the Wages Act was not sustainable and thirdly, they dismissed her claim for costs against the Respondent in respect of a medical expert witness that they called.

	The facts of the case can be shortly told.  The Appellant, a lady aged 26, was employed by the Respondents in their Accounts Department from 3 September 1996.  During the currency of her employment, namely some time in November 1996, she was finally diagnosed as suffering from Chronic Fatigue Syndrome.  On 4 December 1996, the employers dismissed her.  Between 3 September and 4 December, she had been absent 15½ days.  The Industrial Tribunal found that that simple fact was the reason for her dismissal.

	The Applicant’s case is that the Respondents knew perfectly well that she was suffering from Chronic Fatigue Syndrome because she told management that she was so suffering.  Also, she says, that if they did not have such knowledge, they should have had that knowledge and, accordingly, taken steps to adjust her employment to accommodate her.

	The Industrial Tribunal seems to have considered this case with the greatest of care and done its best to analyse the facts, but this is a case which must be one of the first cases to be heard under this new Act.  In fact, the employee was dismissed one day after the Act was implemented.

	Ms Drew, for the Applicant, has focussed her submissions on two particular points of law which seem to us to be arguable.  The first relates to the construction of Section 5(1)(a).  She says that this section is a departure from the usual style of discriminatory law.  She says that the test applied by the section is an objective one rather than a subjective one.  She says there are three questions to be asked:

(1)  Was the dismissal due to absences?  

(2)  Did the absences relate to her disability and 

(3)  If yes is answered to the second question, then the requirements of Section 5(1)(a) are satisfied and it is unnecessary that the employer should either have had actual knowledge or constructive knowledge.

	Whilst that, in the first instance, might seem a rather surprising construction, we accept the persuasive way in which Ms Drew has put this point.  It would seem to be a novel point arising on this new legislation and the sooner it is decided the better.

	Ms Drew also makes a second point based upon her construction of Section 6(6).  It is a question whether the employers had knowledge or constructive knowledge.  She says that, under that section, the statute places the burden of proof on the employer to establish their case with regard to these matters, but that the Tribunal in its reasons never made clear where they thought the burden of proof lies.  Furthermore, she says, that in relation to the contention that the employer had constructive knowledge, the Tribunal failed to ask the right question:  What would a reasonable employer do?  They came to the conclusion that the employers were not alerted in any way but they never considered that question in the context of the steps that a reasonable employer might have been expected to take.  If they did do so, they never spelt them out nor did they consider the question in the context of the Code of Practice attached to the Act.

	In all those circumstances, we think that on these two principal points there are arguable points of law to be considered at a full hearing.  

	There are a number of other issues which Ms Drew raises in her Notice of Appeal.  We think that some of them may well be found in due course to be questions of fact but having regard to the importance of the earlier points she raises, we think it is right that we should give leave for her to argue in full on all the points she raises in her Notice of Appeal.  This includes her wish to argue the cost issue she raises in that Notice.  

	The employee instructed Dr Shepherd, an expert medical witness, to give evidence to the Tribunal about Chronic Fatigue Syndrome.  He examined her in order to establish whether she was suffering from it and thereafter, he included in his consequential report a description and characteristics of this particular ailment.  The Respondents indicated that they did not accept that the employee was suffering from such an illness and furthermore that they were, themselves, going to instruct a medical witness.  In due course they intimated they no longer were going to do so.  Miss O’Neill’s legal advisers then submitted Dr Shepherd’s medical report to the Respondents in order to ascertain whether they would agree the report.  Had they agreed it it would have made it unnecessary to incur the costs, which are very considerable, of securing Dr Shepherd’s attendance.  The Respondents declined to agree the medical report and said Dr Shepherd had to attend.  When he did so however, we are advised that the Respondents barely cross-examined Dr Shepherd in any significant way.  On those facts, Ms Drew argues that the Respondents involved Miss O’Neill in wholly unreasonable costs as a result of their own unreasonable conduct.  We think this is a point which should be considered at a full hearing, and, along with the other points raised, give the Appellant leave to do so.