United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K McNERNEY Legal Department The Royal College of Nursing Raven House 81 Clarendon Road Leeds LS2 9PJ


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to identify whether there is a point of law raised in the Notice of Appeal against a decision of an Industrial Tribunal held at Abergele on 26th and 27th February 1998. Their decision runs to 15 typescript pages and was sent to the parties on 24th March 1998.

The majority decision of the Industrial Tribunal, the Chairman dissenting, was that the applicant's case failed since she was not disabled within the meaning of the Disability Discrimination Act 1995, but that if she was disabled then the tribunal unanimously concluded that she had been discriminated against for the purposes of the Act. The tribunal, by a majority, concluded, Chairman dissenting, that the respondents succeeded in their defence of justification if she was disabled.

The written decision sets out fairly fully the views of the members of the Industrial Tribunal including notes or comments made one of the two lay members who was in the majority. It is a disability discrimination case. The applicant suffered from bulimia nervosa in one form or another. The question arose as to her fitness to carry out nursing duties on behalf of the respondent hospital trust.

The grounds of appeal are that the Industrial Tribunal majority did not correctly direct themselves as to the meaning of disability within the Disability Discrimination Act 1995 having regard to the provisions in particular of Schedule 1 to that Act. It is a contention that the majority appeared to have taken the view that because she, in their judgment, was fit to attend work and to do her duties, she was not therefore disabled.

The second ground relates to the question of justification. It is said on the appellant's behalf that the Industrial Tribunal misdirected themselves in law as to justification and acted perversely in so far as they drew an analogy between the case of the applicant on the one hand and the well-known case of Miss Allitt on the other. Miss Allitt's case was investigated and the report was written about it and it is the reliance upon that report which is challenged by the appellant on this appeal.

The third point relates to the status of expert evidence. To what extent were the tribunal effectively bound by what the expert witness said in his evidence.

During the course of the hearing Mr McNerney, who is a legal officer with the Royal College of Nursing, very properly and helpfully indicated to us that an alternative way of putting the case on disability was that if the applicant was not impaired in her day to day duties, that was as a result of the treatment she was receiving, and therefore, by virtue of paragraph 6 of Schedule 1, she was thereby not to be deprived of the claim that she was disabled. He told us that that was not the way that he had run the case before the Industrial Tribunal, although with the benefit of hindsight and looking at the terms of the decision of the Industrial Tribunal, he frankly admitted that he wished that he had done so.

It seems to us that the question as to whether he should be allowed to raise this matter at the full hearing can only be determined after the respondents have been given an opportunity to make representations to the Court. We do not consider that this is a point which needs to be dealt with in advance of the full hearing but can be dealt with on the morning of the full hearing when the EAT will decide whether to permit that point to be argued, it not having been argued below.

We are of the view that leaving that point aside, the other matters to which we have referred are indeed arguable. This is an interesting and we think potentially difficult case, and we think that it would be appropriate that it should go for full hearing marked a Category A or B marking to indicate that it is to be before a High Court Judge or His Honour Judge Peter Clark. It will last a day.

The respondents in their PHD form have indicated that in relation to the perversity aspect of the appeal in relation, that is to justification, that point could not be decided in the absence of reference to relevant evidence given before the Industrial Tribunal.

Both parties have indicated informally that they are prepared to assist the learned Chairman in preparing Notes of Evidence in relation to Dr Denman and Miss Toogood by themselves seeking to produce an agreed note of the evidence as they have noted it. That can then be sent to the learned Chairman who may find it of assistance when he comes to prepare his Notes of Evidence, which of course are the determining notes. Where they differ we will rely on the Chairman's notes rather than on the parties' own notes. I order that the Notes of Evidence of Dr Denman and Miss Toogood be provided by the learned Chairman, but he should be informed that the parties are proposing to seek to agree a note of their evidence and it will be provided to him for his assistance. I would hope, but I make no order about this, that the parties could get their notes agreed within four or five weeks from today.