United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


JUDGE PETER CLARK:

1. The appellant, a State Registered Nurse, applied for a D Grade nursing post at the respondent's Oxford Radcliffe Hospital on 16th December 1997, shortly before her 30th birthday. She also applied for an E grade post on 19th December. Finally she applied for a G Grade post with which we are not now concerned.
2. Appointment to any post was subject to medical clearance by the respondent's Occupational Health Department. That clearance was not given due to the appellant's history of bulimia. But for that medical history she would, at any rate, have been appointed to the D Grade post.
3. In these circumstances the appellant presented an Originating Application to the Reading Employment Tribunal on 21st April 1998 alleging that she had been unlawfully discriminated against on the grounds of her disability.
4. The respondent resisted the claim on a number of grounds. First it was denied that the appellant had a disability within the meaning of s. 1 of the Disability Discrimination Act 1995. Alternatively, if she suffered from a disability the respondent contended that her non-appointment was justified.
5. Other points were taken which are not material for present purposes.
6. The matter came on for hearing before a full tribunal sitting at Reading on 16th and 17th November 1998. In the event the tribunal focussed solely on the question whether the appellant suffered from a disability as defined by s. 1 of the Act. They heard evidence only from the appellant and a Consultant Psychiatrist, Dr Pieri, called on her behalf. The respondent called no evidence. Having considered the submissions of the parties, each represented by a solicitor, the tribunal concluded that she did not suffer from a disability and dismissed the complaint. The tribunal's decision with extended reasons was promulgated on 9th December 1998. It is against that decision that this appeal is brought by the appellant.
7. Having considered the tribunal's reasons and the grounds of appeal contained in the Notice of Appeal, it seems to us that the tribunal reached their decision in this case without having had the advantage of the guidance supplied by the President, Mr Justice Morison, in the case of Goodwin v The Patent Office [1999] IRLR 4. As a result, arguably the tribunal fell into error in determining the issue as to whether the appellant's mental impairment, which was accepted on behalf of the respondent, had a substantial adverse affect on her ability to carry out day to day activities.
8. We are satisfied that each of the grounds of appeal, as presently constituted, ought to go forward to a full appeal hearing. In addition, Mr McNerney has indicated his wish to amend the grounds to add a further ground relating to the deduced effect. That is the appellant's condition but for any medication or treatment which she had received. As to that, the appellant may submit amended grounds of appeal within the next 14 days, marked for my attention, but limited solely to that point. I shall then consider granting leave.
9. For the purpose of the full appeal hearing, the case will be listed for three to four hours, Category B. We shall make a direction, as requested in the respondent's PHD form, that the Chairman be asked to provide his Notes of the evidence given by Dr Pieri, both in examination-in-chief and cross-examination. Additionally, the parties should lodge a copy of Dr Pieri's report with this tribunal. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. There are no further directions.