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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Heinz Company Ltd v Kenrick [1998] UKEAT 1082_98_1012 (10 December 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/1082_98_1012.html Cite as: [1998] UKEAT 1082_98_1012

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APPEARANCES

 

For the Appellant	MR T LINDEN (of Counsel) Messrs Stephensons (Ref - SER/H36216.23) Solicitors 26 Union Street Leigh WN7 1AT
For the Respondent


 


JUDGE PETER CLARK: This appeal, brought by the employer H J Heinz Company Limited against a decision of the Manchester Employment Tribunal, promulgated with very full extended reasons on 14 July 1998, that the Appellant had discriminated against the Respondent, Mr Kenrick, on grounds of his disability and had unfairly dismissed him, raises a number of points on the proper construction of the Disability Discrimination Act 1995 and its relationship with the ordinary law on unfair dismissal.

The question at this ex parte preliminary hearing is whether the appeal raises any points of law which ought to be argued inter partes at a full appeal hearing. In our view it plainly does.

At the full appeal hearing this Tribunal will need to consider:

(1) the extent to which an employer may be said to have knowledge of the employees disability for the purposes of Section 5(1) of the Act. O'Neill v Symm & Co Ltd (1998) IRLR 233.

(2) the meaning of less favourable treatment in the context of the facts as found in this case.

(3) the justification test under Section 5(3) of the Act.

(4) whether this Employment Tribunal had regard to immaterial provisions of the Code of Practice.

(5) whether the Tribunal gave sufficient reasons for its finding that the dismissal was unfair so as to demonstrate that the proper test under Section 98(4) of the Employment Rights Act were applied. For this purpose we have granted leave to the Appellant to file a draft amended Notice of Appeal within 14 days of today, marked for my attention.

(6) whether a finding of dismissal by reason of disability discrimination rendered the dismissal "automatically unfair" as the Tribunal suggested in paragraph 21(iv) of the reasons.

These are all matters for full argument. For that purpose we shall list the appeal as presently constituted for one day. Mr Linden has invited us to direct that the case be not listed until after the determination by the Court of Appeal of the appeal in Clark v Novcold. We shall not give that direction today but as the matter is to proceed as an inter partes appeal, there will be liberty to the Appellant to apply for a stay on the hearing of the appeal before the Appeal Tribunal pending the outcome of the Court of Appeal's determination in Clark v Novcold. That application may be made to the Registrar and of course the Respondent may make representations to the contrary, if so advised.

There is an application before us for Chairman's notes of evidence. We make no direction for the Chairman's notes at this stage but there will be liberty to both parties to apply depending on the nature of the Respondent's answer to this appeal.

So far as listing category is concerned, we shall direct that the case be listed before the President, unless he expressly releases it to another judge. The case will be listed for one day, there will be exchange of skeleton arguments between the parties and copies lodged with this Tribunal not less than 14 days before the date fixed for the full appeal hearing .