United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in Person
For the Respondent	MRS V A SCOTT (Representative) Director Labour Lex Ltd Office 21 Castle Pond Fordsham Cheshire WQ6 6UJ


 


JUDGE CLARK

1. The Appellant, Mr Ganase, was employed by the Respondent or its predecessor, the London Borough of Greenwich, from 20 April 1986 until his dismissal by a Notice dated 19 March 1998 effective on 19 June 1998. He was Manager of Sunbury Lodge, a home for mentally impaired residents. The home transferred from Greenwich to the Respondent in about October 1996.
2. He presented an Originating Application to the Employment Tribunal dated 17 June 1998, complaining of unfair dismissal and disability discrimination.
3. On 26 May 1999 the Ashford Employment Tribunal heard a preliminary issue as to whether the Appellant was disabled within the meaning of Section 1 of the Disability Discrimination Act 1995. They found, by a decision with extended reasons dated 23 June 1999, that although he suffered from an impairment, chronic fatigue syndrome (ME) which was long term, that impairment did not have a substantial effect on his day to day activities. He was not disabled within the meaning of the Act.
4. Against that decision the Appellant appealed by a Notice dated 3 August 1999. That appeal came on for ex parte preliminary hearing before a division presided over by Judge Paul Collins sitting on 21 February 2000. On that occasion the Appellant was represented by Dr Singh, as he was before the Employment Tribunal. For the purpose of that hearing Dr Singh lodged a skeleton argument, which is before me.
5. The appeal was permitted to proceed to a full inter partes hearing. The principal question of law identified in the judgment given by Judge Collins at the preliminary hearing was whether the Employment Tribunal failed to consider the 'deduced effect' of the impairment after taking into account the treatment which the Appellant was receiving from his doctors. That included medication in the form of Lustrol and Setrline tablets for depression and Cognitive behaviour therapy. Secondly, a question arises as to whether the effects on the Appellant's mobility and concentration represented by respective pain after 5 minutes walking and his 'inability to read the newspaper for more than 30 minutes' amounted to a substantial, that is more than minor or trivial, effect.
6. Prior to the preliminary hearing the Respondent lodged a PHD form in which they said:

"The Appellant is seeking to raise new issues which were not argued before the Tribunal and the Appellant is not presenting the evidence relied on for this appeal in the manner before the Tribunal"

7. Later they sought a direction for the Chairman's Notes of Evidence given by the Appellant and the Respondent's expert, Dr D'Auria.
8. No directions was given as to Chairman's Notes at the preliminary hearing. The application for Chairman's Notes was repeated in the Respondent's letter to the Employment Appeal Tribunal dated 16 March 2000. That request was placed before Judge Collins, who directed that the notes were not necessary for the disposal of the appeal. That direction was communicated to the Respondent by letter dated 22 March 2000.
9. The Respondent has persisted with their request for the Chairman's Notes in the light of their Respondent's answer dated 27 March 2000. The matter now comes before me for directions.
10. At paragraph 3.6 and 3.7 of the answer the Respondent contends that the medication taken by the Appellant and referred to in the report of Dr D'Auria, namely Lustral and Setraline, was not said to have reduced the effect of the Appellants condition, M E, on his day-to-day activities before the Employment Tribunal.
11. Paragraphs 3.8 and 3.9 further develop the submission in relation to the Appellant's walking and newspaper reading capacity.
12. It seems to me that where it is contended by a Respondent that the Appellant is taking a new point, not advanced below, and therefore one which the Employment Appeal Tribunal should not entertain (see Jones –v- Governing Body of Burdett Coutts School (1998) IRLR 521) it is essential that the Employment Tribunal be asked to comment on that contention; similarly where it is said that there was no evidence to support a submission made in support of the appeal.
13. In these circumstance I shall, with the consent of both Ms Scott and Mr Ganase who appeared before me today, direct not that the whole of the Appellant and Dr D'Auria's notes of evidence be provided, but that a copy of the Respondent's answer be sent to the Chairman, Mr Davis, inviting him to comment particularly on paragraphs 3.6 - 3.9 thereof, by reference to his notes of the evidence and argument before the Employment Tribunal.
14. For completeness, copies of the Notice of Appeal and Dr Singh's skeleton argument put before Judge Collins at the preliminary hearing should also be sent to the Chairman. Once received, copies of the Chairman's comments will be sent to the parties prior to the hearing of the substantive appeal.