Clark v Novacold Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date25 March 1999
Judgment citation (vLex)[1999] EWCA Civ J0325-3
Docket NumberEATRF 98/0796/3

[1999] EWCA Civ J0325-3




Royal Courts of Justice

The Strand

London WC2


Lord Justice Beldam

Lord Justice Roch

Lord Justice Mummery

EATRF 98/0796/3

Darren Keith Clark
TDG Limited (Trading as Novacold)

MR ROBIN ALLEN QC and MR NEIL CAMERON (Instructed by Messrs Stamp Jackson & Procter, Hull HU1 2AZ) appeared on behalf of the Appellant

MR PETER OLDHAM (Instructed by Messrs Clarks, Berkshire RE1 1SX) appeared on behalf of the Respondent




This is the first appeal to this court under the Disability Discrimination Act 1995 (the 1995 Act), which was brought into force in relation to employment on 2 December 1996. Since then well over 3,000 applications have been presented to the Employment Tribunals (formerly called Industrial Tribunals). The appeal raises fundamental questions on the interpretation and application of the definition of "discrimination" in section 5(1) and (2) of the 1995 Act.


Leading Counsel for the appellant described it as a "revolutionary Act" aimed at the integration of disabled people into society and, in particular, into the country's workforce. It is certainly more ambitious in its aim and scope than the system of registered disabled persons and quotas in the Disabled Persons (Employment) Act 1944, now repealed. And it is without doubt an unusually complex piece of legislation which poses novel questions of interpretation. It is not surprising that different conclusions have been reached at different levels of decision.


This state of affairs should not to be taken as a criticism of the Act or of its drafting or of the judicial disagreements about its interpretation. The whole subject presents unique challenges to legislators and to tribunals and courts, as well as to those responsible for the day to day operation of the Act in the workplace. Anyone who thinks that there is an easy way of achieving a sensible, workable and fair balance between the different interests of disabled persons, of employers and of able bodied workers, in harmony with the wider public interests in an economically efficient workforce, in access to employment, in equal treatment of workers and in standards of fairness at work, has probably not given much serious thought to the problem.


These proceedings were started in the Industrial Tribunal on 1 April 1997. The employee's complaint of discrimination was dismissed on 21 August 1997. On the employee's appeal on 22 May 1998 the Employment Appeal Tribunal directed that the case be remitted for re-hearing to the Industrial Tribunal. Both sides object to that order and appeal to this court.


The facts of the case are simple. The law is novel. The arguments are complicated. The court is indebted to both counsel for being excellent and intrepid guides in new territory.


An attempt to simplify the legal reasoning and to clarify the outcome is made in the summary at the end of this judgment.


The Facts


On 31 July 1995 Mr Darren Clark started employment at a plant in Hull as a Process Operator with TDG Ltd, which trades as Novacold (Novacold) and carries on the business of processing and storing frozen food. That job involved a considerable element of manual work and was physically demanding.


From the end of May 1996 Mr Clark performed the function of Assistant Supervisor for a probationary period. That job was also physically demanding. Before the probationary period had finished he allegedly suffered an injury at work on 21 August 1996. From early September 1996 he was away from work. Novacold paid him full sick pay for a period of 16 weeks. He never returned to work before his dismissal on 24 January 1997.


Novacold had obtained a report dated 6 December 1996 from Mr Clark's GP, who expressed the opinion that it was extremely difficult to anticipate his return to work in the near future. He was unable to walk properly, let alone lift heavy loads. Novacold also received from an orthopaedic consultant, Mr Bryant, a report dated 27 December 1996. Mr Bryant stated that he was unable

"to give an exact time when it should be possible for Mr Clark to return to work".


Novacold interpreted Mr Bryant's report as meaning that Mr Clark was likely to be off for up to 12 months. Novacold decided to terminate Mr Clark's employment. They wrote to him to that effect on 14 January 1997 stating that, in view of his medical condition, they had come to the conclusion that he would be unable to resume work in his former capacity within a reasonable time scale. They confirmed that alternative work was not available. He was given the period of notice to which he was contractually entitled. His employment terminated on 24 January 1997.


The Proceedings


On 1 April 1997 Mr Clark presented an application to the Industrial Tribunal complaining of

"Unfair Dismissal under the Disability Discrimination Act 1995".


He was not entitled to complain of unfair dismissal under the Employment Rights Act 1996, as he had not been in the employment of Novacold for the requisite period of two years. He gave his dates of employment, which were not disputed by Novacold, as running from 31 July 1995 until 24 January 1997.

In the details of his complaint he stated

"I see no reason why my job could not have been held open pending recovery from my injuries. In addition I do not consider that my employers gave reasonable consideration to alternative jobs within the company that I could do even with my injury".


In their Notice of Appearance Novacold stated that the reason for Mr Clark's dismissal was

"No longer capable of performing the main functions of his job".


Novacold contended that full consideration had been given to alternative employment, but no suitable vacancies were identified to suit Mr Clark's experience, qualifications or capabilities. Novacold went on to state

"This company considers that it waited a reasonable length of time for Mr Clark's condition to improve but even in the circumstances the action taken was reasonable.

Mr Clark is not considered to qualify under the Disability Discrimination Act given that his injury prognosis was recovery in under 12 months."


Decision of the Industrial Tribunal


The Industrial Tribunal sitting at Hull heard Mr Clark's application on 11 and 23 July 1997. In Extended Reasons sent to the parties on 21 August 1997 the tribunal explained its unanimous decision that Mr Clark's claim for discrimination under the 1995 Act failed.


The main conclusions of the tribunal may be summarised as follows:-

(1) Mr Clark was suffering from a disability and was a disabled person within Section 1 of the 1995 Act (para 11). He fell within the definition of disability as he suffered from "a physical…impairment which has a substantial and long term adverse effect on [his] ability to carry out normal day-to-day activities". This is not an issue on the appeal.

(2) Mr Clark was dismissed for a reason relating to his disability within the meaning of Section 5(1) (para 13). The reason for his dismissal was found to be that (para 7(q))-

"….he was no longer capable of performing the main functions of his job and that his absence was continuing and that [Novacold] needed somebody to perform the role that he was performing."


The Tribunal rejected Novacold's contention that the reason did not relate to Mr Clark's disability, stating (para 13)

"On either basis of the reason for dismissal it must be related to the disabled person's disability, whether he be absent or whether he be incapable of performing his main functions in employment. It must certainly, in the tribunal's view, relate to his disability, ie the continuing symptoms arising from the injury which he has suffered."


(3) Mr Clark was not treated less favourably than Novacold would treat others absent from work for reasons other than disablement. The tribunal stated (para 18) that the relevant comparator would be somebody

"who could have been off work for the same length of time as the applicant, but for a non-disablement reason, and the treatment that is to be examined is what would be the treatment (be it actual or hypothetical, and in this case was hypothetical) that could have been given to such a person who was not a disabled person."


There was no liability under Section 5(1) of the Act (para 18) because the tribunal accepted that

"…it was likely that a person who had been off work for a similar length of time, and where there was no foreseeability of a return to work and therefore a continued long term absence, would have been treated no differently than the applicant albeit that the reason for the termination of the applicant's employment related to his disability. Therefore the tribunal is satisfied that the applicant was not discriminated against as he was not treated less favourably than a person in a similar set of circumstances. The tribunal in making that comparison believes that there has to be consideration of similar circumstances in taking the hypothetical comparison. It is not open to the tribunal to take a comparison of somebody who, hypothetically or otherwise, does not have similar circumstances other than disability. So it would not therefore, for example (an extreme example) be open to the tribunal to make the comparison with somebody who was not off work and who was performing their normal functions and who was not disabled."


(4)The tribunal explained (in para 19) that, if it had decided in favour of Mr Clark on the less favourable treatment point, it would then have had to consider whether there was discrimination against him under...

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