Peninsula Business Services Ltd v. Malik

An Employment Tribunal must give adequate reasons identifying the factual findings and statutory route by which a disability discrimination claim succeeds. Where the claimant may be protected as either an employee or a prospective employee, the Tribunal must separately analyse the relevant gateways under Disability Discrimination Act 1995 s.4. The Employment Appeal Tribunal should not resolve disputed factual issues which require findings by a fact-finding Tribunal. A jurisdictional objection raised for the first time on appeal may be refused where it is procedurally unjust to permit it and does not require an immediate determination. The appeal was therefore allowed and the matter remitted to a fresh Employment Tribunal.

Ms Malik, who was disabled within the meaning of the Disability Discrimination Act 1995, alleged that Peninsula Business Services Ltd had offered her employment but failed to make the technological adjustments required to enable her to start work. The Employment Tribunal found that she had accepted an offer and was therefore an employee under s.4(2), alternatively that she was a prospective employee under s.4(1). It upheld claims of disability discrimination and awarded £21,659.86.

The employer appealed, challenging the contractual finding, the reasonable-adjustments finding, the injury-to-feelings award and, shortly before the appeal, the Tribunal’s jurisdiction under s.32 of the Employment Act 2002. The central issue was whether the Employment Tribunal had adequately explained which statutory protection applied and why.

1. The appeal was allowed. The Employment Tribunal’s judgment was set aside for want of adequate reasoning, and the case was remitted to a fresh Employment Tribunal.
2. The Tribunal’s finding that Ms Malik had accepted an offer and thereby become an employee under Disability Discrimination Act 1995 s.4(2) was unsupported by a coherent factual analysis. The Employment Judge’s later statement that there was no or no satisfactory evidence of acceptance further undermined the original reasons.
3. The alternative reasoning under s.4(1) was also inadequate. The Tribunal did not identify whether the claim concerned the arrangements for determining whom to employ, the terms on which employment was offered, or a refusal or deliberate failure to offer employment. It therefore failed to apply the precise statutory wording to the facts.
4. The EAT could not uphold either statutory route. Evidence capable of supporting a concluded contract existed, but the issue required determination by the fact-finding Tribunal. The issues of reasonable adjustments and injury to feelings were consequently left for reconsideration if they arose.
5. The employer’s s.32 jurisdiction point, raised for the first time in the appeal, was rejected. The point had not been taken before the Employment Tribunal or in the original appeal grounds. It was not necessarily a decisive knockout point, and permitting it at that stage could produce an unjust result. On remission, the employer was precluded from raising that point in relation to the s.4(2) argument.
6. The EAT also held that the Employment Judge could not unilaterally alter the full Tribunal’s judgment through the Burns/Barke procedure.

• Employment Tribunal: found liability for disability discrimination and awarded £21,659.86.
• Employment Appeal Tribunal: allowed the appeal, set aside the judgment and remitted the matter to a fresh Employment Tribunal.