United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R THACKER (of Counsel) appearing under ELAAS


 


HIS HONOUR JUDGE H WILSON: We have considered very carefully what you (Mr Thacker) have had to say but we have come to a conclusion contrary to your submissions. We do not think that there is any reasonable prospect of success on full argument because essentially what is at stake here, is differing views of fact. On the face of the decision, the Tribunal took into consideration all the right things. Therefore because it is fact, we cannot and do not interfere.

This brings us to the other matter which is to make it quite plain that the question of victimisation is a live issue with the other matters which the Employment Tribunal is going to consider in due course.

This has been a preliminary hearing, ex-parte, concerning a judgment by the Employment Tribunal sitting in London (North) on 26 October 1998. The purpose of the hearing before the Employment Tribunal was to consider the Appellant's complaint under the Disability Discrimination Act 1995. The majority decision of the Tribunal was that he was not a disabled person and that his complaints therefore failed. The complaints of breach of contract, unfair dismissal, failure to provide written terms and conditions however, were to proceed to a full merits hearing. Those other complaints are stayed pending the outcome of today's appeal.

We note from the bundle that an application for a review was made, quite a lengthy document being submitted by the Appellant. Two full pages of A4 typescript were considered by the Chairman, sitting alone. We note that there is no apparent appeal from the refusal by her of a review because the Applicant for the review had established no proper grounds for it. Had there been an appeal, it seems to us inevitable it would have been dismissed because the grounds advanced amount to allegations of gross misconduct by the Tribunal and those are something which are expressly not pursued by Mr Thacker today on behalf of the Appellant.

So far as the preliminary hearing itself is concerned, we have listened with care to Mr Thacker's able submissions, but at all stages we come back to the inescapable position that the matters at issue are questions of fact. We have regard to the decision itself and we note that in paragraph 2 the Tribunal directed itself concerning the terms of the Disability Discrimination Act Section 1 and quite properly quoted the section together with paragraph 4 of the First Schedule that paragraph prescribes that normal day to day activities are one or other of the enumerated conditions and disabilities which are set out at that point. We note too that the third paragraph of the decision refers to the existence of guidance having been produced by the Secretary of State to help Tribunals in deciding questions relating to definition of disability for the purposes of the Act.

The decision in the course of paragraph 6 states the issue to be whether the undoubted long term effects the Applicant has suffered had a substantial and adverse effect on his ability to carry out normal day to day activities. It further states that members of the Tribunal have considered individually the headings as set out in the guidance referred to in paragraph 3 above. The paragraph and subsequent paragraphs then go on to set out the conclusions so far as the majority of the Tribunal is concerned. Paragraph 8 summarises the position by finding that overall the majority concluded that the Applicant had some residual problems following his stroke but that these were not substantial.

Paragraph 10 deals with a unanimous view concerning difficulties of hearing and goes on to refer to other matters which were unanimously disposed of. Paragraph 11 states that as the majority were of the view that the Applicant had not demonstrated he was suffering from an impairment that fell within the meaning of "substantial", albeit he had long term adverse effects. The Applicant was not a disabled person within the meaning of the Disability Discrimination Act and therefore complaints under the Act failed. Their decision was based upon a proper instruction to themselves concerning the relevant part of the Act and an individual consideration with regard to each of the matters urged by the Appellant of the guidance given by the Ministry.

In those circumstances, not only is the matter essentially one of fact behind which this Tribunal is not permitted to go, but also there is nothing to suggest that the Employment Tribunal failed properly and adequately to direct itself about the law which has to be applied in this very difficult area. Accordingly, there is no reasonable prospect of success after a full hearing and this appeal is dismissed. Having said that, we note that the disability evidence can still be part of the unfair dismissal cases when they are heard by the Tribunal and that the issue of victimisation is (by admission of both parties) a live issue in any proceedings for unfair dismissal which may ensue hereafter.

So far as the other limb of the appeal is concerned, namely the issue of victimisation under Section 55 of the Disability Discrimination Act 1995, we consider that it was erroneously included in the matters declared to fall by the Employment Tribunal by omission. The whole thrust of their judgment deals with the other aspects of the Appellant's case under the Disability Discrimination Act and accordingly, we direct that the issues of victimisation under Section 55 of the Disability Discrimination Act shall remain live issues and shall be considered with other issues of unfair dismissal in due course. Meanwhile we continue the stay on other proceedings and direct that the stay shall continue until the determination of the Appellant's application for permission to appeal to the Court of Appeal.