Oliver v The Ultimate Solution Partnership Ltd

An employment tribunal must make clear findings on the employer’s pleaded reason for dismissal where that reason is relevant to whether the treatment was connected with disability. The tribunal must ascertain the real reason operating on the alleged discriminator’s mind. That reason may differ from the reason given and may be one of several reasons. A tribunal cannot determine the disability issue without examining the evidence supporting the alleged reason. Failure to adjudicate upon a substantial allegation deprives both parties of a fair trial and requires the decision to be set aside.

Mrs Oliver appealed against an Employment Tribunal decision concerning her dismissal and disability discrimination claim. The respondent’s pleaded case was that her employment had been terminated because of dishonesty and breach of trust and confidence, based on alleged conduct while she was absent on sick leave and while seeking other work.

The Employment Tribunal’s reasons did not make findings resolving that allegation, although the issue was relevant to the reason for dismissal and whether that reason was connected with disability. The Employment Appeal Tribunal considered whether the decision could stand without findings on the respondent’s principal contention.

1. The appeal was allowed and the case was remitted to a differently constituted Employment Tribunal. The existing decision could not stand because it did not explain why either party had succeeded or failed.
2. The requirement that parties must know why they have won or lost was reaffirmed by reference to Meek v City of Birmingham District Council [1987] IRLR 250. A substantial pleaded allegation cannot be left unresolved. The tribunal must decide it by reference to the evidence.
3. In determining the reason for dismissal in a discrimination claim, the tribunal must ascertain the real reason operating on the alleged discriminator’s mind. The reason may differ from the reason given and may not be the only reason. The inquiry is objective.
4. The respondent had expressly pleaded dishonesty and breach of trust and confidence as the reason for dismissal. The Employment Tribunal had made no proper finding on that contention. Without examining the evidence and resolving the allegation, it was impossible to assess the actual reason for dismissal or whether it was connected with disability.
5. The Employment Appeal Tribunal also identified issues concerning the scope of Malcolm, including the extent to which knowledge of disability may be inferred from surrounding circumstances. Those issues had not been properly determined below.

• Employment Appeal Tribunal: allowed the appeal and remitted the case to a differently constituted Employment Tribunal.
• Employment Tribunal: determined the claimant’s claim, but its reasons failed to make findings on the respondent’s pleaded allegation that dismissal resulted from dishonesty and breach of trust and confidence.