England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE ANSELL)

		Royal Courts of Justice Strand London, WC2
		13 January 2005

1. LORD JUSTICE WARD: This is a troublesome case for me. It is an application by Miss Hill for permission to appeal against the decision of the Employment Appeal Tribunal dismissing her appeal against the decision of the Employment Tribunal which in turn had dismissed her application brought under the Disability Discrimination Act 1995. The Employment Tribunal did find that Miss Hill was unfairly dismissed and that matter will take its usual course if it has not already gone through the mill.
2. The position very shortly stated is this. Miss Hill was employed by the respondents and in the course of her employment took a group of young people for whom she was responsible to some sort of summer show where a motorcyclist was performing a stunt which apparently required him to mount the ramp and jump over a number of spectators. As I understand it, though this is sketchy and actually immaterial, an announcer or someone with a live microphone, was brought in to be the last person in the line. The tragedy of August 2000 was that the motorcycle fell short and crushed the announcer, who died. The sight and sound must have been ghastly.
3. The events which give rise to this claim occur six months later on 20th February 2001 when Miss Hill was summarily dismissed from her employment. She alleged that at the material time, February 2001, she was suffering from a post traumatic stress disorder brought about by the events which had occurred, if not in her sight, at least in her presence and hearing on that dreadful day in August 2000.
4. The Tribunal had before it a battery of medical evidence and on one view of that evidence, which seems indeed even to have been accepted by the Tribunal, the applicant appears to have been suffering from a recognised mental illness, but the question arose, posed by the respondents' experts, as to whether or not Miss Hill had actually seen what she claimed in some of the reports to have seen. As I read their decision, and I am looking at the moment at paragraph 25, the Tribunal correctly recognised that post traumatic stress disorder is a condition falling within the provisions of the Act. They correctly asked this:

"The issue is whether the applicant was affected by it. We are unanimously of the view that, as a question of fact, the applicant was not suffering from this condition at the relevant time, that is to say at the date of her dismissal."

5. They repeat that as a finding of fact in paragraph 27. Now, that is not a promising start from which to launch an appeal against their decision which has to proceed on the basis that they are guilty of errors of law. With the able assistance of experienced counsel, Mr Thomas Kibling, application was made to the Employment Appeal Tribunal and in the course of an interlocutory hearing HHJ McMullen QC gave permission for the appeal, principally on two bases, as I understand it. Firstly, that the Tribunal may have misdirected themselves in inquiring too closely into whether or not the evidence of actually seeing this ghastly accident was true, as opposed to asking them the question simply: was Miss Hill affected by an appropriate disorder at the time of her dismissal?
6. There was a second factor. She has applied to the Department of Works and Pensions for the necessary disability allowances and they have been granted on the basis that she is suffering from this very disorder. The judge recommended a review. That review took place and the way that the Tribunal expressed itself in that review does cause me enough concern to grant permission to appeal.
7. They seem to have explained -- and I take this from paragraph 9 of the Employment Appeal Tribunal's decision, page 40 of my bundle -- that the issue of causation was relevant in this case because whether the applicant was experiencing post traumatic stress disorder was entirely subjective and conditioned by her own answers to questions. So they concluded:

"It was necessary for us to consider the events upon which she relied, in support of her case, to show that she was present at an extremely traumatic incident, namely when a motorcyclist was killed at a public display. Our analysis of the evidence led us to believe that she did not witness the incident in the manner she had described and indeed on the balance of probabilities did not see it at all."

8. In other words, they found she was not reliable. Now, for my part I am a little anxious that there may be confusion in this regard. The true question is whether or not she was suffering. Why she was suffering does not matter, I do not think. Whether she saw it or whether she heard it may not much affect the aetiology of her condition and it is a matter of psychiatric evidence as to whether or not she was suffering from the disorder. It is not simply a matter of pure fact whether or not she saw what she claims she did see. So I am a little troubled by the confusion of thinking.
9. I am especially troubled too by the failure on the part of the Tribunal apparently to weigh at all the fact that a different Tribunal had found her to be entitled to disability benefits. They dismissed that, saying that their definition was an exclusive definition and requires criteria which we presume are not present in the other legislation. That is arguably not a sufficient reason for failing to bear their findings in mind.
10. The consequence is, as Mr Hill, who has courteously appeared on her behalf, explains to me, that one Tribunal, the Employment Tribunal, found the lady was not suffering on 20th February 2001 whereas another Tribunal, with the benefit of the medical evidence they called in, found that she was suffering and had been suffering for at least six months, ie was suffering on the very day of or the day before her dismissal. So there are two inconsistent findings by two Tribunals. That is sufficiently alarming for me to say that this matter needs to be fully considered by the full court and I will gives permission to appeal.
11. I repeat, however, what I said in argument, that the dividing line between errors of fact and errors of law are difficult for lawyers to get their heads around -- I have difficulty myself -- and Mr Hill, passionate and courteous though he is, will struggle. I hope therefore that the office will invite assistance from pro bono counsel. If Mr Kibling were free and kind enough to take it up the court will be indebted to him. The matter can probably be dealt with in half a day before a court of three, of whom one must have employment appeal experience.

Order: application allowed. The matter to be dealt with in half a day before a court of three, of whom one must have employment appeal experience.