Taylor v OCS Group Ltd.

Under Employment Rights Act 1996, the fairness of a dismissal must be assessed by considering the disciplinary process as a whole. There is no rule that an earlier procedural defect can be cured only by an appellate rehearing rather than a review. The tribunal must assess the later process for fairness, thoroughness and open-mindedness, alongside the reason for dismissal, equity and the substantial merits.

Under Disability Discrimination Act 1995, dismissal is for a reason related to disability only where a disability-related reason affected the employer’s mind, consciously or subconsciously. Mere causal contribution by the disability is insufficient.

Taylor v OCS Group Ltd concerned a profoundly deaf employee who was dismissed for forwarding emails, including confidential material, from a colleague’s computer to his own. The employment tribunal held that the first disciplinary hearing was procedurally unfair because no interpreter was provided. It found the dismissal unfair, but dismissed the claim that dismissal was disability-related discrimination under section 5(1).

The Employment Appeal Tribunal upheld the unfair-dismissal finding but allowed the employee’s cross-appeal on section 5(1). OCS appealed. The central issues were whether an appeal hearing described as a review could cure defects in the original disciplinary hearing, and whether the employee’s inability to explain himself because of deafness was a reason related to disability in the employer’s decision to dismiss.

1. Appeal allowed. The unfair-dismissal issue was remitted to a differently constituted employment tribunal. The tribunal’s dismissal of the section 5(1) disability-discrimination claim was restored.

2. Under section 98(4) of the Employment Rights Act 1996, there is no legal rule that only a rehearing, rather than a review, can cure defects in an earlier disciplinary hearing. Whitbread v Mills, Adivihalli v Exports Credits Guarantee Department and Sartor v P & O European Ferries were consistent with the correct approach. The tribunal must decide whether the dismissal process as a whole was fair.

3. If an early stage was defective, the tribunal must examine subsequent proceedings carefully. It should assess their procedural fairness, thoroughness and the decision-maker’s open-mindedness. It must also consider those matters together with the seriousness of the misconduct, the employer’s reason for dismissal, equity and the substantial merits. Categorising an internal appeal as a review or a rehearing is an unhelpful semantic exercise.

4. The employment tribunal had instead treated its finding that the appeal was a review as decisive. It had not made the required overall assessment. Since the material before it could support a finding that the appeal process had fairly enabled the employee to explain himself, its conclusion could not be treated as unarguably right. A fresh tribunal was required because the original tribunal had already reached a firm view on fairness.

5. For section 5(1) of the Disability Discrimination Act 1995, the first question was whether the employer dismissed the employee for a reason related to disability. A disability-related reason must have affected the employer’s mind. It may do so subconsciously, and it may be one of several reasons, provided it significantly influenced the decision. The employee’s deafness might causally have contributed to dismissal by impeding his explanation, but there was no evidence that this was a reason in the employer’s mind. Misconduct alone was the reason for dismissal.

• Court of Appeal (Civil Division): Allowed OCS’s appeal in [2006] EWCA Civ 702. It remitted unfair dismissal to a differently constituted employment tribunal and restored the dismissal of the claim under section 5(1) of the Disability Discrimination Act 1995.
• Employment Appeal Tribunal: On 23 May 2005, dismissed OCS’s appeal against the findings of unfair dismissal and failure to make a reasonable adjustment, but allowed the employee’s cross-appeal under section 5(1).
• Employment tribunal: On 16 August 2004, found unfair dismissal under the Employment Rights Act 1996, found a failure to make a reasonable adjustment under the Disability Discrimination Act 1995, and dismissed the section 5(1) dismissal-discrimination claim.